Adelaide Festival Centre Trust Act 1971

The central entity is the Trust, defined as the Adelaide Festival Centre Trust established under section 5. The Centre is defined broadly to include the Festival Theatre, a drama theatre, amphitheatre, experimental theatre, and all associated amenities, conveniences, facilities and works including plazas, walks, parks, open spaces, roads and carparks (s 4(1)). This definition means the Trust’s authority extends over a comprehensive precinct, not merely the main theatre building. The Trust is an instrumentality of the Crown, so its property is Crown property and its staff are employed by the Crown (though not necessarily in the public service) (ss 5(2)(d), 21(3)). The employing authority is a person designated by proclamation who hires staff to perform functions for the Trust; the Trust itself has no power to employ anyone (s 21(11)). The Act distinguishes between the Trust’s functions (s 20) and its powers (s 20A). Functions are the core purposes it must perform; powers are the means it may use. Official insignia are defined in Part 5 to mean an official title declared under section 31 (such as Adelaide Festival Centre Trust or Adelaide Festival Centre) or a logo declared by the Minister in the Gazette. The Trust has a proprietary interest in all official insignia (s 32(1)). An authorised officer is a person appointed by the Minister under section 27 or any police officer. Authorised officers have powers to require identification, remove persons from the Centre, seize goods, and give directions for order and safety (s 28). Premises of the Trust means premises owned or occupied by the Trust. Occupy in relation to premises means have or be entitled to possession or control (s 4(1)). The concept of promote is defined broadly to include organise, commission, fund, support, market, advertise or act as project manager (s 4(1)). This broad definition ensures the Trust’s functions cover a wide range of involvement in events. Another key concept is the limitation on ministerial direction: the Minister cannot give directions as to artistic nature or content of objects, works, performances or events; the manner of dealing with testamentary gifts; or advice or recommendations the Trust makes to the Minister (s 10(2)). This preserves the Trust’s artistic independence.

The Act directly affects the members of the Adelaide Festival Centre Trust, currently up to eight persons appointed by the Governor, with one nominated by the Adelaide City Council and the remainder by the Minister (s 6). Members are subject to term limits (maximum 9 consecutive years), conditions of appointment, and potential removal by the Governor for misconduct, incapacity, or failure to carry out duties (s 7). The employing authority, a person designated by proclamation, is responsible for hiring and managing staff for the Trust and is subject to ministerial direction except regarding appointment, transfer, remuneration, discipline or termination of particular individuals (s 21(5)-(6)). Staff employed under section 21 are affected by provisions regarding continuity of employment, long service leave, and superannuation (ss 21, 22). The Adelaide City Council is affected because it nominates a member and also because Trust land is not rateable under the Local Government Act 1999 unless occupied by a person other than the Crown, in which case that occupier is liable for rates (s 34). Artists, performers, entertainers, and other persons involved in the arts are affected as the Trust may contract with or employ them (s 20A(2)(b)). Persons who attend events at the Centre or other Trust premises are subject to the powers of authorised officers, including requirements to leave, surrender objects, and follow directions for order and safety (s 28). Those who use the Trust’s official insignia without consent in the course of trade or business face penalties up to $20,000 (s 32). Persons who are delegated functions or powers under section 12 must not act in matters where they have a direct or indirect pecuniary or personal interest, on penalty of $10,000 or 2 years imprisonment (s 12(4)). Persons who lease or license Trust land become liable for council rates as occupiers (s 34(2)). The general public is affected by regulations that may prohibit disorderly behaviour, regulate parking, and provide for exclusion from the Centre (s 38). Finally, the Minister and Treasurer are affected by their oversight roles: the Minister gives general directions and approves budgets, the Treasurer approves certain financial transactions such as borrowing and share dealings (ss 10, 23, 37).

The Trust’s core duties are set out in its functions under section 20. It must encourage and facilitate artistic, cultural and performing arts activities throughout the State. It must undertake the care, control, management, maintenance and improvement of the Centre. It must provide advisory and support services in its areas of expertise, and ticketing systems after consulting the Minister. The Trust must not extend its area of operation under section 20(1)(c) without first consulting the Minister (s 20(1a)). The Trust must prepare and submit an annual budget to the Minister (s 23(1)), and must not make expenditure not provided for in an approved budget without the Minister’s consent, except for money received by way of testamentary or other gift (s 23(5)-(6)). The Trust must cause proper accounting records to be kept and annual statements of account prepared, complying with Treasurer’s instructions and Auditor-General requirements (s 24). The Auditor-General must audit the annual statements (s 24(3)). The Trust must forward an annual report to the Minister by 30 September each year, containing audited statements, and the Minister must table it in Parliament within 12 sitting days (s 25). The Trust must meet at least six times in each year and keep accurate minutes (s 8(7)-(8)). The Trust must not affix its common seal except pursuant to a Trust decision, attested by two members (s 14(1)). When delegating powers, the Trust must do so by written instrument, and the delegate must not act in any matter in which the delegate has a direct or indirect pecuniary or personal interest (s 12(4)). The Trust must give effect to ministerial general control and direction, except in the areas where direction is prohibited (artistic content, testamentary gifts, advice to Minister) (s 10). The Trust has the right to accept gifts of land or personal property for its purposes (s 35(1)), and stamp duty is not payable on instruments transferring land to the Trust or on contracts disposing of property (s 35(2)). The Trust has a proprietary interest in official insignia and may grant or refuse consent for its use, with or without conditions (s 32). It may seek injunctions and compensation for unauthorised use (s 32(5)-(6)). The Trust may apply to the Supreme Court for an injunction. The Trust also has the right to seize goods marked with unauthorised insignia through authorised officers (s 33). A person from whom goods are seized is entitled to compensation if no proceedings are instituted within three months or if the defendant is not convicted (s 33(2)). A person is not obliged to answer a question or produce a document if it might tend to incriminate him or her (s 29(2)). A delegate charged with acting with an interest has a defence if unaware of the interest at the time (s 12(5)).

The Act creates several offences with specified penalties. A delegate who acts in a matter in which he or she has a direct or indirect pecuniary or personal interest commits an offence punishable by up to $10,000 or imprisonment for 2 years (s 12(4)). It is a defence to show the person was unaware of the interest at the time (s 12(5)). A person who, without reasonable excuse, hinders or obstructs an authorised officer, fails to answer a question, produces a false or misleading document, fails to comply with a requirement or direction, uses abusive language, or falsely represents being an authorised officer, is guilty of an offence with a maximum penalty of $2,500 (s 29(1)). A person who fails to return an identity card after ceasing to be an authorised officer commits an offence punishable by a fine of up to $250 (s 27(6)). Unauthorised use of official insignia in the course of trade or business carries a maximum penalty of $20,000 (s 32(2)), and assuming a name or description that includes official insignia without consent also carries a maximum penalty of $20,000 (s 32(3)). The Trust may apply to the Supreme Court for an injunction to restrain a breach of section 32 (s 32(5)), and the convicting court may order the convicted person to pay compensation to the Trust (s 32(6)). Those remedies are in addition to any civil remedies available to the Trust (s 32(7)). Authorised officers have enforcement powers including requiring a person to state their name and address, requiring a person to leave the Centre and not return for up to 24 hours, using reasonable force to remove a person, and detaining a person to hand over to police (s 28(1)). An authorised officer may also require surrender of any object suspected of being used in contravention of the Act and may give directions for good order, safety, and property protection (s 28(2)). Force may be used for removal or exclusion and for seizing goods under section 33. Goods apparently intended for a commercial purpose that are marked with official insignia may be seized if the authorised officer suspects on reasonable grounds the use is unauthorised (s 33(1)). The court convicting a person may order forfeiture of the goods to the Crown, to be disposed of as the Minister directs, with sale proceeds paid into the Consolidated Account (s 33(4)-(5)). Regulations may prescribe penalties not exceeding $1,250 for breach of any regulation (s 38(2)(k)). The regulations may also provide for expiation notices, as indicated by transitional provisions from the Statutes Amendment and Repeal (Common Expiation Scheme) Act 1996.

The Act expressly provides for its relationship with several other South Australian statutes. Trust land is not rateable under the Local Government Act 1999, but if the land is occupied under a lease or licence by a person other than the Crown or a Crown agency, that occupier is liable for rates (s 34). This creates a clear exception for commercial lessees. Stamp duty is not payable on any instrument by which land or an interest in land is granted or assured to the Trust, or on any contract or instrument executed by the Trust for disposing of property, despite the Stamp Duties Act 1923 (s 35(2)). This exemption facilitates property transactions for the Trust. Section 13 clarifies that a member of the Trust is not taken to have a conflict of interest under the Public Sector (Honesty and Accountability) Act 1995 merely because the member shares an interest common to those engaged in or associated with the arts industry generally or a substantial section of that industry. This prevents a broad construction of conflict rules from disqualifying members with arts backgrounds. The Trust’s financial affairs are subject to the Public Finance and Audit Act 1987: accounting records and statements must comply with Treasurer’s instructions under that Act and any further requirements of the Auditor-General (s 24(2)). The Auditor-General audits the annual statements (s 24(3)). Staffing is affected by the Public Sector Act 2009: persons employed under section 21 are not employed in the public service unless brought into an administrative unit under that Act (s 21(3)). The employing authority may direct staff to perform functions for a public sector agency as defined in the Public Sector Act 2009 (s 21(13)). The Superannuation Act 1988 is referenced: the employing authority may enter into arrangements contemplated by section 5 of that Act (s 22(2)). Transitional provisions from the Statutes Amendment (Public Sector Employment) Act 2006 show that the Act interacts with the Fair Work Act 1994 (SA) and Commonwealth workplace relations laws, creating deemed awards and enterprise agreements on the transfer of employment to the employing authority. The Act also interacts with the Local Government Act through the rates exemption. The Act does not require official titles to be registered or protected under any other Act (s 31(4)), meaning they have statutory protection independent of trade marks or business names legislation. However, the Minister cannot declare a name or title that is registered or protected under another Act unless acting with the consent of the person benefiting from that protection (s 31(3)). The regulations may deal with matters such as admission, disorderly behaviour, vehicle parking, and unclaimed property, and may create offences with penalties up to $1,250 (s 38). The Act is a standalone South Australian Act and does not purport to interact with Commonwealth legislation beyond the incidental references in transitional provisions.

The Act was originally enacted in 1971 (No 93 of 1971) and commenced on 9 December 1971. It has been amended by numerous subsequent Acts. Early amendments in 1972, 1973, 1974, and 1976 made changes to provisions now superseded. The 1976 amendment inserted sections on expiation and other matters. The 1982 amendment altered provisions on official insignia. The 1983 amendment also affected official insignia. The 1985 amendment changed membership provisions. The 1987 Statutes Amendment (Finance and Audit) Act substituted provisions relating to accounts. The 1993 amendment abolished compulsory retirement. The 1994 Adelaide Festival Centre Trust (Miscellaneous) Amendment Act made changes to functions and official insignia, including a new section 31A that later expired. The 1995 amendment altered trust membership. The 1996 Statutes Amendment and Repeal (Common Expiation Scheme) Act deleted several provisions and altered penalty sections. A major restructure occurred in 2000 with the Adelaide Festival Centre Trust (Composition of Trust) Amendment Act, which substituted section 6 (composition) and section 10 (ministerial control), and substituted section 13 (conflict of interest). That Act also introduced gender balance requirements. The 2006 Statutes Amendment (Public Sector Employment) Act substituted sections 21 and 22 on staffing, introducing the concept of the employing authority. The 2008 Adelaide Festival Centre Trust (Financial Restructure) Amendment Act made significant changes: it deleted the former Part 3 (financial) and Part 3A, substituted Part 4 (now Part 3 after later renumbering) dealing with transfer of property, and amended sections on accounts. The 2009 Statutes Amendment (Public Sector Consequential Amendments) Act amended section 6 (adding a provision on presiding member) and section 21 (public sector agency definition). The most extensive overhaul came with the Statutes Amendment (Arts Agencies Governance and Other Matters) Act 2010 (commenced 12 May 2011). That Act substituted the entire Part 2 into new divisions (Divisions 1, 1A, 1B, 1C, 1D, 2, 2A, and 3). It inserted the current provisions on members’ proceedings, committees, delegation, conflict of interest, common seal, powers (new section 20A), and staffing arrangements. It deleted the old Part 3 and inserted a new Part 4 (authorised officers) and Part 5 (official insignia) and Part 6 (miscellaneous). The 2010 Act also repealed former sections 19, 23, and others, and renumbered sections (e.g., former section 29 became section 26). Transitional provisions from the 2010 Act allowed existing trustees to continue in office despite non-compliance with new composition requirements for the balance of their terms.

The text of the Act as provided does not reference any specific court cases or litigation history. No cases are cited in the provisions, legislative history notes, or transitional schedules. While litigation may have occurred involving the Trust under this Act , for example, concerning the use of official insignia, the exercise of authorised officer powers, or disputes over property transfers , the source material does not record any such proceedings. The Act itself provides for the Supreme Court to grant injunctions to restrain unauthorised use of official insignia (s 32(5)), and for courts of competent jurisdiction to hear compensation claims for wrongful seizure of goods (s 33(3)), but no case names or outcomes are given. Section 9 states that an act or proceeding of the Trust or a committee is not invalid by reason only of a vacancy or a defect in appointment, which suggests potential challenges to validity that the provision aims to pre-empt. The transitional provisions from the 2010 Act note that sections 6 and 7 (composition and consecutive term limits) may not be complied with for a period, indicating that compliance difficulties could give rise to litigation but none is mentioned. The absence of cited cases may reflect that this is a regulatory Act focused on governance and administration, with disputes likely resolved internally or through alternative mechanisms rather than reported decisions. A practitioner researching litigation under this Act would need to conduct independent case law searches in South Australian courts, particularly the Supreme Court, Industrial Relations Court (for staffing matters), and magistrates courts for enforcement proceedings. The legislative history does not include any notes of judicial consideration.

Several provisions in the Act contain traps for the unwary. The Trust itself has no power to employ any person (s 21(11)). All staff are employed by the employing authority, a person designated by proclamation. Anyone dealing with the Trust must not assume the Trust hires its own staff; contracts of employment are with the employing authority. The Trust’s powers are broad, but borrowing money and acquiring, holding, dealing with or disposing of shares or other interests in bodies corporate require the approval of the Treasurer (s 20A(3)). Failure to obtain approval could render such transactions ultra vires. A delegate of the Trust who has a direct or indirect pecuniary or personal interest in a matter must not act pursuant to the delegation (s 12(4)). This is a criminal offence carrying up to $10,000 or 2 years imprisonment. The defence of unawareness is available (s 12(5)), but the burden of proof is on the defendant. Official insignia are protected without any registration requirement (s 31(4)). A person may inadvertently use a name such as “Adelaide Festival Centre” in advertising and be liable for a $20,000 penalty. Consent from the Trust is essential. Even using a name that includes official insignia (e.g., “Friends of the Adelaide Festival Centre”) could be caught by s 32(3). Goods marked with official insignia may be seized on suspicion of unauthorised use (s 33(1)). The owner must wait three months or until acquittal to recover the goods or compensation (s 33(2)). During that period, the goods are held and may be forfeited if there is a conviction. Authorised officers have significant powers, including the power to use force to remove persons and to detain a person to hand over to police (s 28(1)(d)-(e)). A person who refuses to leave may be forcibly removed. The power to require a person to leave and not return for up to 24 hours (s 28(1)(c)) can be exercised without any offence having been proven. Ministerial direction is prohibited on artistic content and similar matters, but the Minister still has general control and direction (s 10(1)). The line between general direction and impermissible direction could be contested. The Trust is exempt from council rates on its own land, but a lessee or licensee who is not the Crown becomes liable for rates (s 34(2)). A commercial tenant may not expect this liability. The Trust must not extend the area of operation of its advisory services without first consulting the Minister (s 20(1a)). Failure to consult may render the extended activity beyond power. Finally, regulations may prohibit conduct and prescribe penalties up to $1,250, and they may create reverse onus offences for vehicle parking (s 38(4)). Practitioners should check the current Adelaide Festival Centre Trust Regulations for specific offences.

For the Trust and its members, compliance begins with proper appointment. The Governor appoints up to eight members, at least two of each gender, one nominated by the Council (s 6). Each member serves up to three years and cannot serve more than nine consecutive years (s 7). Members must attend meetings; absence without leave from three consecutive meetings results in vacancy (s 7(4)(f)). The Trust must meet at least six times a year (s 8(7)), and must keep accurate minutes (s 8(8)). Decisions are by majority vote, with a casting vote for the presiding member on equality (s 8(3)-(4)). Quorum is half the total members plus one (s 8(1)). The Trust may also pass resolutions by written communication without a meeting, provided notice is given and a majority express concurrence in writing (s 8(6)). The common seal must only be affixed pursuant to a Trust decision and attested by two members (s 14(1)). Any delegation must be in writing, and delegates must avoid conflicts of interest (s 12). The Trust must prepare an annual budget and submit it to the Minister for approval (s 23). Expenditure not in the approved budget requires ministerial consent, except for testamentary gifts (s 23(5)-(6)). Accounting records must comply with Treasurer’s instructions and Auditor-General requirements (s 24). Annual audited statements must be included in the annual report, which must be forwarded to the Minister by 30 September each year (s 25). The Trust must not exercise certain powers (borrowing, share dealings) without Treasurer approval (s 20A(3)). When extending advisory services beyond current operations, the Trust must first consult the Minister (s 20(1a)). The Trust must follow ministerial general direction, but must resist any direction on artistic content or testamentary gifts (s 10). The Trust must not employ staff itself; it must rely on the employing authority and may also use staff from an administrative unit under arrangement (s 21(11)-(12)). The Trust must at the direction of the Minister, Treasurer or employing authority make payments related to employment matters (s 21(10)). For persons dealing with the Trust, compliance requires obtaining written consent before using any official insignia in trade or business (s 32). This includes names such as Adelaide Festival Centre or any logo declared by the Minister. A person who leases or occupies Trust land must pay council rates to the relevant council, as the land is not rateable in the Trust’s hands but becomes rateable in the hands of a non-Crown occupier (s 34). Persons attending the Centre must comply with directions of authorised officers, including requirements to leave or surrender objects (s 28). Failure to comply may result in removal by force and prosecution. Any person who acts as a delegate of the Trust must check whether they have a direct or indirect pecuniary or personal interest in the matter before them. If such interest exists, they must not act, unless they can prove unawareness (s 12(5)). The Trust should maintain a register of delegations and ensure delegates are informed of their obligations.