Division 1CEO

An Act to establish an Australian Film Commission ## Part I—Preliminary #### 1 Short title \[see Note 1\] This Act may be cited as the Australian Film Commission Act 1975. #### 2 Commencement \[see Note 1\] (1) Subject to subsection (2), this Act shall come into operation on the day on which it receives the Royal Assent. (2) Part VI shall come into operation on a date to be fixed by Proclamation. #### 3 Interpretation (1) In this Act, unless the contrary intention appears: > Australian program means a program: (a) that has been made wholly or substantially in Australia and that, in the opinion of the Commission, has a significant Australian content; (b) that is to be made wholly or substantially in Australia and that, in the opinion of the Commission, 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 the Commonwealth or an authority of the Commonwealth and the Government of another country or an authority of the Government of another country. > Australian short film means: (b) any short film: (i) that is an Australian program; and (ii) not less than 80 per centum of the content of which in terms of duration has been made specifically for that film; but does not include a film referred to in paragraph (b) that: (c) is primarily produced for the purpose of promoting a product or service; (d) promotes a product or service of a person who has borne the whole or a part of the cost of producing the film; or (e) is a news‑reel or news‑magazine or a trailer or other advertizing film. > authorized person means a member of the Commission or of the staff of the Commission authorized by the Commission for the purposes of the provision in which the expression occurs. > broadcast means to transmit by way of television or radio. > CEO or Chief Executive Officer means the CEO of the Commission appointed by the Minister under section 28B. > Chair means the Chair of the Commission. > Commission means the Australian Film Commission established by this Act. > Deputy Chair means a Deputy Chair of the Commission. > film means an aggregate of images, or of images and sounds, embodied in any material. > First Deputy Chair means the person who, under section 19, is the First Deputy Chair of the Commission. > member means a member of the Commission, and includes the Chair. > national collection means: (a) the programs that are owned by, or are in the possession of, the Commission from time to time; and (b) all material associated with programs that is owned by, or is in the possession of, the Commission from time to time. > program means: (a) a recording; or (b) an aggregate of images or sounds, or of images and sounds, that is, or is intended to be, broadcast without first having been recorded. > recording means: (a) a film; or (b) an aggregate of sounds embodied in any material. > Second Deputy Chair means the person who, under section 19, is the Second Deputy Chair of the Commission. > short film means a film that: (a) is less than 60 minutes in duration; and (b) is designed for, or produced with a view to, theatrical exhibition. (1A) A reference in this Act to the distribution of programs includes a reference to the presentation of programs. (1B) A reference in this Act to the making of programs includes a reference to the compilation or preparation of programs. (1C) Where a word has a particular meaning in this Act, other parts of speech and grammatical forms of that word have corresponding meanings. (2) In considering whether a program has or will have a significant Australian content, the Commission shall have regard to: (a) the subject‑matter of the program; (b) the place or places where the program was, or is to be, made; (c) the nationalities and places of residence of: (i) the persons who took part, or are to take part, in the making of the program (including authors, composers, actors, scriptwriters, editors, producers, directors and technicians); (ii) the persons who own, or will own, the shares or stock in the capital of any company concerned in the making of the program; and (iii) the persons who have, or will have, the copyright in the program; (d) the source from which moneys used, or to be used, in the making of the program were, or will be, derived; and (e) any other matters that it thinks relevant. #### 3A Application of the Criminal Code Chapter 2 of the Criminal Code applies to all offences against this Act. > Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. ## Part II—Establishment, functions and powers of the Commission #### 4 Establishment of Australian Film Commission (1) There is established by this Act a Commission by the name of the Australian Film Commission. (2) The Commission: (a) is a body corporate, with perpetual succession; (b) shall have a common seal; (c) may acquire, hold and dispose of real and personal property; and (d) may sue and be sued in its corporate name. > Note: The Commonwealth Authorities and Companies Act 1997 applies to the Commission. That Act deals with matters relating to Commonwealth authorities, including reporting and accountability, banking and investment, and conduct of officers. (3) All courts, judges and persons acting judicially shall take notice of the common seal of the Commission affixed to a document and shall presume that it was duly affixed. #### 5 Functions of Commission (1) The functions of the Commission are: (a) to encourage, whether by the provision of financial assistance or otherwise, the making, promotion, distribution and broadcasting of Australian programs; and (b) to promote and distribute any programs; and (c) subject to the approval of the Minister, to provide financial assistance to a State or an authority of a State for the purchase by it of: (i) Australian programs that are of an educational nature and of national interest or importance; and (ii) rights in respect of any such programs; and (d) to encourage, whether by the provision of financial assistance or otherwise, the proper keeping of recordings in archives in Australia; and (e) to develop, maintain and preserve a national collection; and (f) to exhibit, or to make available for exhibition by others, items in the national collection; and (g) to make items in the national collection available to such persons and institutions, and in such manner and subject to such conditions, as the Commission determines. (1A) In the performance of its functions, the Commission shall give special attention to the encouragement of: (a) the making of experimental programs and programs of a high degree of creativeness; and (b) the making and appreciation of Australian programs and other programs as an art form. (1B) The Commission must use every endeavour to make the most advantageous use of the national collection in the national interest. (2) The functions of the Commission specified in paragraphs (1)(a) and (b) may be performed either within or outside Australia. (3) The Commission may carry out a matter within the functions specified in paragraph (1)(b) by commissioning a person to undertake that matter. (4) The Commission may perform its functions to the extent only that they are not in excess of the functions that may be conferred on the Commission by virtue of any of the legislative powers of the Parliament, and, in particular, may perform its functions: (a) by way of expenditure of moneys that are available for the purposes of the Commission in accordance with an appropriation made by the Parliament; (b) by way of, or in relation to, trade and commerce with other countries, among the States, between Territories or between a Territory and a State; (c) for purposes related to broadcasting services; (d) so far as they relate to the collection of statistics; (e) for purposes related to external affairs; and (f) for purposes in relation to a Territory. #### 6 Powers of Commission (1) The Commission has power to do all things necessary or convenient to be done for or in connexion with the performance of its functions and, without limiting the generality of the foregoing, has power: (a) to guarantee the repayment of, and payment of interest on, loans (including bank overdrafts); (b) to provide financial assistance to persons concerned with the making, promotion, distribution or broadcasting of Australian programs under arrangements that entitle the Commission to receive a share of the proceeds derived from the sale, hire, distribution or broadcasting of the programs; (c) to acquire rights in respect of programs; (d) to accept gifts, devises, bequests and assignments made to the Commission (whether on trust or otherwise); and (e) to act as trustee of moneys, recordings or other property vested in the Commission upon trust, or to act on behalf of the Commonwealth or an authority of the Commonwealth in the administration of a trust relating to programs or to matters connected with programs. (1A) Without limiting subsection (1), the Commission also has the following powers in relation to the national collection: (a) to purchase programs or material associated with programs, to take programs or material associated with programs on hire and to accept programs or material associated with programs on deposit or loan or as a gift; and (b) to make programs or material associated with programs available by hire, loan, sale or otherwise. (1B) Without limiting subsection (1), the Commission may make available services in relation to programs or material associated with programs. The Commission may charge fees for the services, but such fees must be approved in writing by the Minister. > Note: Under subsection 33(3A) of the Acts Interpretation Act 1901, services may be specified by reference to a particular class or classes of service. (2) The power of the Commission to give guarantees is subject to such limits as the Finance Minister determines as to the total amount of moneys (other than interest) the payment of which may at any time be the subject of such guarantees. (3) Notwithstanding anything contained in this Act, any money, recordings or other property held by the Commission upon trust shall be dealt with in accordance with the powers and duties of the Commission as trustee. (4) The annual report on the Commission under section 9 of the Commonwealth Authorities and Companies Act 1997 must also include a statement of: (a) the guarantees given by the Commission under paragraph (1)(a) during the year to which the report relates; (b) the limits that the Finance Minister has determined under subsection (2); and (c) the total amount the subject of the guarantees referred to in paragraph (a). (5) The annual report on the Commission under section 9 of the Commonwealth Authorities and Companies Act 1997, in respect of a financial year, must include particulars of all disposals of items in the national collection during that financial year that the Commission considers were significant items in the national collection. (6) The annual report of the Commission under section 9 of the Commonwealth Authorities and Companies Act 1997, in respect of a financial year, must include a report of the operations relating to the national collection. (7) The Finance Minister may, by written instrument, delegate any of the Finance Minister’s powers or functions under this section to an official (within the meaning of the Financial Management and Accountability Act 1997). In exercising powers or functions under a delegation, the official must comply with any directions of the Finance Minister. (8) In this section: > Finance Minister means the Minister who administers the Financial Management and Accountability Act 1997. #### 7 Commission may form company for certain purposes etc. The Commission may, with the approval of the Minister but not otherwise, form, or participate with another person in the formation of, a company for the purpose of carrying on the business of promoting or distributing programs and acquire, hold and dispose of shares or stock in the capital of a company carrying on such a business. #### 8 Directions to Commission by Minister (1) The Minister may, by writing under his or her hand, give directions to the Commission with respect to the exercise of its powers or the performance of its functions but shall not give such a direction with respect to a particular project. (3) Where the Minister gives a direction under this section, he or she shall, within 15 sitting days after giving that direction, lay before each House of the Parliament a copy of the direction together with his or her reasons for giving the direction. #### 10 Requirement with respect to the exhibition of Australian short films (1) For the purpose of carrying out its functions of encouraging the making, promotion and distribution of Australian programs, being films, the Commission or an authorized person may serve, either personally or by post, on: (a) a foreign corporation or trading corporation formed within the limits of the Commonwealth that carries on the business of exhibiting films in a theatre or theatres in Australia; or (b) any other person who carries on the business of exhibiting films in a theatre or theatres in Australia; a requirement in writing in accordance with this section. (2) A requirement referred to in subsection (1) shall: (a) specify: (i) the period to which it relates, being a period commencing not earlier than the date on which the requirement is served; and (ii) the theatre or theatres to which it relates; and (b) require that: (i) a specified proportion of the number of short films exhibited by the person on which or on whom the requirement is served in the specified theatre or theatres during the specified period be films certified by the Commission to be Australian short films; or (ii) a specified proportion of the time devoted to the exhibition of short films by that person in the specified theatre or theatres during the specified period be devoted to the exhibition of films certified by the Commission to be Australian short films. (3) A requirement referred to in subsection (1) may be so expressed as to include both a requirement of the kind referred to in subparagraph (2)(b)(i) and a requirement of the kind referred to in subparagraph (2)(b)(ii). (4) A person shall comply with a requirement served on him or her under subsection (1). Penalty: $200. (5) Subsection (4) does not apply if the person has a reasonable excuse relating to the availability of Australian short films. > Note: A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code). (5A) Subsection (4) is an offence of strict liability. > Note: For strict liability, see section 6.1 of the Criminal Code. (6) A requirement shall not be made under this section unless there is in force a regulation declaring that such requirements may be made on or after a specified date and such a requirement shall not be made before the specified date. (7) The regulations may make provision, not inconsistent with this section, with respect to any matter in relation to the exercise of the power to make requirements under this section (which may include provision with respect to the proportions that are to be, or may be, specified in such a requirement), and that power shall not be exercised otherwise than in accordance with any regulations so made and in force. (8) An application may be made to the Administrative Appeals Tribunal for review of a requirement made under this section. #### 11 Observance of obligations under OECD Code The Minister shall give such directions to the Commission under section 8 as he or she thinks necessary for the purpose of ensuring the observance, in the exercise of powers under section 10, of the obligations of Australia under the Code of Liberalisation of Current Invisible Operations of the Organization for Economic Co‑Operation and Development, and the Commission shall comply with those directions. #### 12 Commission to keep itself informed as to film industry For the purposes of performing its functions, the Commission shall keep itself informed, whether by the collection of statistics, the conduct of market research or otherwise, of all aspects of making, promoting, distributing and broadcasting programs in Australia. #### 13 Commission may engage consultants The Commission may engage persons having suitable qualifications and experience as consultants to the Commission. #### 14 Delegation by Commission (1) Subject to any direction of the Minister, the Commission may, either generally or as otherwise provided by the instrument of delegation, by writing under its common seal, delegate to a member of the Commission, to the CEO or to a member of the staff of the Commission any of its powers under this Act, other than this power of delegation. (2) A power so delegated, when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Commission. (3) A delegation under this section does not prevent the exercise of a power by the Commission. ## Part III—Constitution and meetings of the Commission #### 15 Constitution of Commission (1) The Commission shall consist of a Chair and at least 5 other members. (2) The members of the Commission shall be appointed by the Governor‑General. (3) The members of the Commission shall be appointed either as full‑time members or as part‑time members. (4) The members of the Commission may include not more than one member of the staff of the Commission. (5) The exercise or performance of a power or function by the Commission is not affected by reason only of there being a vacancy in the office of a member. #### 16 Terms and conditions of appointment (1) Subject to this Act, a member holds office for such period, not exceeding 5 years, as is specified in the instrument of his or her appointment and on such terms and conditions as the Governor‑General determines, but is eligible for re‑appointment. #### 17 Remuneration and allowances (1) A member shall be paid such remuneration as is determined by the Remuneration Tribunal, but, if no determination of that remuneration by the Tribunal is in operation, he or she shall be paid such remuneration as is prescribed. (2) A member shall be paid such allowances as are prescribed. (3) Subsections (1) and (2) have effect subject to the Remuneration Tribunal Act 1973‑1974. (4) The remuneration and allowances of a member shall be paid out of the moneys of the Commission. #### 18 Leave of absence (1) A full‑time member has such recreation leave entitlements as are determined by the Remuneration Tribunal. (2) The Minister may grant a full‑time member leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines. #### 19 Deputy Chair (1) The Governor‑General may appoint a person who is, or is to be, a member to be a Deputy Chair of the Commission. (1A) The Governor‑General may appoint a maximum of 2 Deputy Chairs. (1B) Subsections (1C), (1D) and (1E) set out the rules as to seniority of Deputy Chairs. (1C) If there is only one Deputy Chair at a particular time, that person is the First Deputy Chair of the Commission. (1D) Subject to any determination made by the Minister under subsection (1E), if there are 2 Deputy Chairs at a particular time: (a) the Deputy Chair appointed earliest in time is the First Deputy Chair of the Commission; and (b) the other Deputy Chair is the Second Deputy Chair of the Commission. (1E) If there are 2 Deputy Chairs at a particular time, the Minister may determine which of the 2 Deputy Chairs is to be the First Deputy Chair of the Commission. The Deputy Chair who is the subject of the determination is the First Deputy Chair of the Commission and the other Deputy Chair is the Second Deputy Chair of the Commission. (2) A person appointed under this section holds office as a Deputy Chair until the expiration of his or her period of appointment as a member or until he or she sooner ceases to be a member. (3) If: (a) a person ceases to be a Deputy Chair because the period of his or her appointment as a member has expired; and (b) the person is re‑appointed as a member; then he or she is eligible for re‑appointment as a Deputy Chair. (4) A Deputy Chair may resign his or her office of Deputy Chair by writing signed by him or her and delivered to the Governor‑General. #### 20 Acting members (1) Subject to subsection (2), where there is a vacancy in the office of Chair, the Minister may appoint a person to act in the place of the Chair until the filling of the vacancy. (2) A person appointed under subsection (1) to act in the place of the Chair shall not continue so to act after the expiration of a period of 12 months after the occurrence of the vacancy. (3) Where the Chair is absent from duty or from Australia or is, for any other reason, unable to perform the duties of his or her office: (a) the First Deputy Chair must act in the place of the Chair; or (b) if the First Deputy Chair is not available to act in the place of the Chair, the Second Deputy Chair (if any) must act during the absence or inability of the First Deputy Chair; or (c) if: (i) there is no Deputy Chair; or (ii) a Deputy Chair is not available to act in the place of the Chair; the Minister may appoint a member to act in the place of the Chair during the absence or inability of the Chair. Any such appointment ceases to have effect if a person is appointed in the place of a Deputy Chair or a Deputy Chair becomes available to act in the place of the Chair. (4) Where a member other than the Chair is acting in the place of the Chair, is absent from duty or from Australia, or is, for any other reason, unable to perform the duties of his or her office, the Minister may appoint a person to act in the place of that member during the period during which that member is so acting, absent or unable to perform the duties of his office. (5) A person appointed under subsection (4) to act in the place of a member who is the Deputy Chair is not entitled to act as the Deputy Chair. (6) A person acting, or appointed to act, in accordance with this section, in the place of the Chair has all the functions, powers and duties of the Chair and, for the purpose of constituting a quorum at a meeting of the Commission, shall be treated as the Chair. (7) Subject to subsection (5), a person appointed to act, in accordance with this section, in the place of a member other than the Chair has all the functions, powers and duties of that member and shall, for the purpose of constituting a quorum at a meeting of the Commission, be treated as that member. (8) The Minister may: (a) subject to this Act and having regard to the terms and conditions of appointment applicable to members, determine terms and conditions of appointment (including remuneration and allowances) of a person appointed under this section; and (b) at any time terminate such an appointment. #### 21 Persons having certain interests not to be eligible for appointment etc. A person having a direct or indirect pecuniary interest in a business or other undertaking involving the making, promotion, distribution or broadcasting of programs, otherwise than as a member, and in common with the other members, of an incorporated company consisting of not less than 25 persons, is not eligible: (a) to be appointed under section 15 as, or to remain, a full‑time member; or (b) to be appointed under section 20 to act, or to continue to act, in the place of a full‑time member. #### 23 Termination of appointment (1) The Governor‑General may terminate the appointment of a member by reason of misbehaviour or physical or mental incapacity. (2) If: (a) a member: (i) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit; or (ii) fails to comply with an obligation imposed on him or her by section 27F or 27J of the Commonwealth Authorities and Companies Act 1997; or (b) a full‑time member: (i) is not, by virtue of section 21, eligible to remain as a full‑time member; (ii) engages, without the consent of the Minister, in any paid employment outside the duties of his or her office; or (iii) is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any period of 12 months; the Governor‑General shall terminate the appointment of that member. (3) If a part‑time member is, without the prior consent of the Chair, absent from 2 consecutive meetings of the Commission the Governor‑General may terminate the appointment of that member. #### 24 Resignation A member may resign his or her office by writing signed by him or her and delivered to the Governor‑General. #### 25 Act of Commission not to be questioned The validity of an act done by the Commission shall not be questioned in any proceeding on a ground arising from the fact that: (a) a person purporting to be appointed under section 15 or 20 was, by virtue of section 21, not eligible to have been so appointed; or (b) the occasion for the appointment of a person purporting to have been appointed under section 20 had not arisen or that the appointment under that section had ceased to have effect. #### 28 Meetings (1) Subject to this section, the Chair shall convene such meetings of the Commission as are, in his or her opinion, necessary for the efficient conduct of its affairs. (2) The quorum for a meeting shall be 5 members. (3) A question arising at a meeting of the Commission shall be decided by a majority of the votes of members present and voting. (4) The Chair shall preside at all meetings at which he or she is present. (5) In the event of the absence of the Chair from a meeting, the most senior Deputy Chair present (see section 19 for the rules as to seniority of Deputy Chairs) shall preside at that meeting. (6) In the event of the absence of the Chair, the First Deputy Chair of the Commission and the Second Deputy Chair of the Commission from a meeting, the members present shall elect one of their number to preside at that meeting and the person so elected shall preside accordingly. (7) At a meeting, the Chair or other member presiding has a deliberative vote and, in the event of votes being equal, has a casting vote. (8) The Commission may regulate and conduct the proceedings at its meetings as it thinks fit and shall keep minutes of those proceedings. (9) If the Commission so determines, a member of the Commission may participate in, and form part of a quorum at, a meeting of the Commission by means of any of the following methods of communication: (a) telephone; (b) closed circuit television; (c) another method of communication determined by the Commission. (10) A determination of the Commission under subsection (9) may be made in respect of a particular meeting, or in respect of all meetings of the Commission. (11) A member of the Commission who participates in a meeting as provided by subsection (9) shall be taken for the purposes of this Part to be present at the meeting. (12) If the Commission so determines, a resolution shall be taken to have been passed at a meeting of the Commission if, without meeting, a majority of the number of members who would, if present at a meeting of the Commission and entitled to vote on the resolution at that meeting, have constituted a quorum of the Commission indicate agreement with the resolution in accordance with the method determined by the Commission. ## Part IV—Staff ### Division 1—CEO #### 28A CEO to manage Commission The CEO is responsible for managing the affairs of the Commission. Except in relation to the CEO’s powers under the Public Service Act 1999, the CEO is to act in accordance with any written direction given by the Commission to him or her. #### 28B Appointment of CEO (1) The CEO is to be appointed by the Minister by written instrument. (2) The CEO holds office for the period specified in the instrument of appointment. The period must not exceed 5 years. (3) The CEO is to be appointed on a full‑time basis. (4) The CEO is eligible for reappointment. #### 28C Remuneration and allowances of CEO (1) The CEO is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the CEO is to be paid the remuneration that is prescribed by the regulations. (2) The CEO is to be paid the allowances that are prescribed by the regulations. (3) This section has effect subject to the Remuneration Tribunal Act 1973. #### 28D Leave of absence (1) The CEO has the recreation leave entitlements that are determined by the Remuneration Tribunal. (2) The Minister may grant the CEO leave of absence, other than recreation leave, on the terms and conditions, as to remuneration or otherwise, that the Minister determines in writing. (3) The Chair may grant the CEO leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Chair determines, if the period of leave of absence is less than 5 working days. #### 28E Resignation The CEO may resign his or her appointment by giving the Minister a written resignation. #### 28F Disclosure of interests The CEO must give written notice to the Minister, and to the Commission, of all interests, pecuniary or otherwise, that the CEO has or acquires and that could conflict with the proper performance of the CEO’s duties. #### 28G Outside employment The CEO must not engage in paid employment outside the duties of his or her office without the Minister’s approval. #### 28H Termination of appointment Misbehaviour or incapacity (1) The Minister may terminate the appointment of the CEO for misbehaviour or physical or mental incapacity. Bankruptcy etc. (2) The Minister must terminate the appointment of the CEO if: (a) the CEO: (i) becomes bankrupt; or (ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or (iii) compounds with his or her creditors; or (iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or (b) the CEO is absent, except on leave of absence granted under section 28D, for 14 consecutive days, or for 28 days in any 12 months; or (c) the CEO fails, without reasonable excuse, to comply with section 28F; or (d) the CEO engages, except with the Minister’s approval, in paid employment outside the duties of his or her office. Invalidity (3) In spite of anything contained in this section, if the CEO: (a) is an eligible employee for the purposes of the Superannuation Act 1976; and (b) has not reached his or her maximum retiring age (within the meaning of that Act); then he or she is not capable of being retired from office on the ground of invalidity (within the meaning of Part IVA of that Act) unless the Board (within the meaning of that Act) has given a certificate under section 54C of that Act. (4) In spite of anything contained in this section, if the CEO: (a) is a member of the superannuation scheme established by deed under the Superannuation Act 1990; and (b) is under 60 years of age; then he or she is not capable of being retired from office on the ground of invalidity (within the meaning of that Act) unless the Board (within the meaning of that Act) has given a certificate under section 13 of that Act. (5) In spite of anything contained in this section, if the CEO: (a) is an ordinary employer‑sponsored member of PSSAP, within the meaning of the Superannuation Act 2005; and (b) is under 60 years of age; then he or she is not capable of being retired from office on the ground of invalidity (within the meaning of that Act) unless the Board (within the meaning of that Act) has given an approval and certificate under section 43 of that Act. #### 28J Other terms and conditions The CEO holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister in writing. #### 28K Acting CEO (1) The Minister may appoint a person to act as the CEO: (a) during a vacancy in the office of CEO (whether or not an appointment has previously been made to the office); or (b) during any period, or during all periods, when the CEO is absent from duty or from Australia or is, for any reason, unable to perform the duties of the office. (2) Anything done by a person purporting to act under an appointment under subsection (1) is not invalid merely because: (a) the occasion for the appointment had not arisen; or (b) there was a defect or irregularity in connection with the appointment; or (c) the appointment had ceased to have effect; or (d) the occasion to act had not arisen or had ceased. > Note: For more information about acting appointments, see section 33A of the Acts Interpretation Act 1901. ### Division 2—Staff of Commission #### 29 Staff of Commission (1) The Commission may appoint such officers and engage such employees as it thinks necessary for the performance of its functions. (2) The terms and conditions of service or employment of persons so appointed or engaged (in respect of matters not provided for by this Act) shall be such as are determined by the Commission. (3) The Commission’s staff may also include persons engaged under the Public Service Act 1999. (4) For the purposes of the Public Service Act 1999: (a) the CEO and the APS employees assisting the CEO together constitute a Statutory Agency; and (b) the CEO is the Head of the Statutory Agency. ## Part V—Finance #### 31 Moneys payable to Commission (1) There are payable to the Commission such moneys as are appropriated by the Parliament for the purposes of the Commission. (2) The Minister for Finance may give directions as to the amounts in which, and the times at which, moneys referred to in subsection (1) are to be paid to the Commission. #### 33 Application of moneys by Commission (1) The moneys of the Commission shall be applied only: (a) in payment or discharge of the expenses, charges and obligations incurred or undertaken by the Commission in the performance of its functions, or the exercise of its powers, under this Act; and (b) in the payment of any remuneration and allowances payable under this Act. (2) Subsection (1) does not prevent investment of surplus money of the Commission under section 18 of the Commonwealth Authorities and Companies Act 1997. #### 35 Restrictions on financial transactions (1) The Commission shall not, without the approval of the Minister: (a) acquire any property, right or privilege for a consideration exceeding in amount or value $250,000 or, if a higher amount is prescribed, that higher amount; (b) dispose of any property, right or privilege where the amount or value of the consideration for the disposal, or the value of the property, right or privilege, exceeds $250,000 or, if a higher amount is prescribed, that higher amount; (c) enter into a contract for the construction of a building for the Commission, being a contract under which the Commission is to pay an amount exceeding $250,000 or, if a higher amount is prescribed, that higher amount; or (d) enter into a lease of land for a period exceeding 10 years. (2) Paragraphs (1)(a) and (b) do not apply to: (a) transactions relating to the making, promotion, distribution or broadcasting of programs; or (b) the investment of money by the Commission under section 18 of the Commonwealth Authorities and Companies Act 1997. ## Part VI—Transitional provisions ### Division 1—Australian Film Development Corporation #### 39 Repeal of Australian Film Development Corporation Acts etc. (1) The Australian Film Development Corporation Act 1970 and the Australian Film Development Corporation Act (No. 2) 1970 are repealed. (2) Upon the date of commencement of this Part: (a) all rights, property and assets (including the moneys standing to the credit of the Australian Film Development Fund) that, immediately before that date, were vested in the Australian Film Development Corporation are, by force of this subsection, vested in the Commission; and (b) the Commission becomes, by force of this subsection, liable to pay and discharge all the debts, liabilities and obligations of the Australian Film Development Corporation that existed immediately before that date. (3) Any agreement or instrument subsisting immediately before the date of commencement of this Part to which the Australian Film Development Corporation was a party has effect on and after that date as if: (a) the Commission were substituted for the Corporation as a party to the agreement or instrument; and (b) any reference in the agreement or instrument to the Corporation were (except in relation to matters that occurred before that date) a reference to the Commission. (4) Notwithstanding the repeal effected by subsection (1), the Australian Film Development Corporation as constituted immediately before the commencement of this Part shall, for the purpose of preparing and furnishing to the Minister the report and financial statements referred to in subsection (5), continue in existence until it has furnished that report and those financial statements. (5) The Australian Film Development Corporation shall, as soon as practicable after the commencement of this Part, prepare and furnish to the Minister a report of its operations during the period that commenced on 1 July 1974 and ended immediately before the commencement of this Part together with financial statements in respect of that period in such form as the Minister for Finance approves, and subsections 28(2) and (3) of the Australian Film Development Corporation Acts 1970 have the like effect in respect of the report and the financial statements as those subsections would have if: (a) they had not been repealed; (b) the report and financial statements were furnished under section 28 of that Act; and (c) the period to which the report and financial statements relate were a year that ended on 30 June. (6) Subject to subsection (7), the members of the Australian Film Development Corporation as continued in existence by virtue of subsection (4) are entitled, while they remain such members, to the remuneration and allowances to which they were entitled under the Australian Film Development Corporation Act 1970‑1973 immediately before the commencement of this Part. (7) For the purposes of the payment of remuneration and allowances to a member of the Australian Film Development Corporation, as continued in existence by virtue of subsection (4), who is appointed to be a member of the Australian Film Commission, the performance of his or her duties as a member of the Corporation shall be deemed to be the performance of his or her duties as a member of the Commission. ### Division 2—Film Australia #### 40 Interpretation In this Division: > assets includes: (a) plant, machinery, equipment, office furniture, fittings, motor vehicles and stock in trade; (b) debts due to the Commission and the benefit of any securities for those debts; (c) any benefit that is capable of assignment under a contract; (d) any other property, right or interest to which the Commission is entitled and which it may assign; and (e) all relevant records maintained by the Commission; but does not include an estate or interest in land. > commencing day means the day on which this Division commences. > Film Australia means the company named “Film Australia Pty. Limited” that is incorporated under the law in force in the Australian Capital Territory relating to companies. > special functions, in relation to the Commission, means the making, or the commissioning of the making, or the promotion or distribution, by the Commission of programs referred to in subparagraph 5(1)(b)(i), (ii) or (iii) as in force immediately before the commencing day. #### 40A Transfer of certain assets, liabilities etc. from Commission to Film Australia (1) The Commission shall transfer, or cause to be transferred, to Film Australia such assets as the Minister specifies in writing, being assets that were, immediately before the commencing day, owned by the Commission and held or used in connection with its special functions. (2) Film Australia becomes, on the commencing day, by force of this subsection, liable to pay and discharge all debts, liabilities and obligations incurred by the Commission before the commencing day in connection with its special functions. #### 40B Transfer of certain staff from Commission to Film Australia (1) Where the Minister certifies in writing that a special function of the Commission is to be performed by Film Australia, the Minister may, by notice published in the Gazette, declare that specified persons, being members of the staff of the Commission who performed, or took part in the performance of, that function, are, on the specified day, in the employment of Film Australia. (2) A person specified in a declaration: (a) ceases to be a member of the staff of the Commission on the day specified in the declaration; and (b) is employed by Film Australia from and including that day. (3) Film Australia may, despite anything in any other law (other than the Australian Fair Pay and Conditions Standard or an award or transitional award within the meaning given by the Workplace Relations Act 1996), determine special terms and conditions of employment (other than terms and conditions with respect to superannuation) that are to apply to persons transferred under this section to Film Australia. #### 40C Agreements etc. to which Commission is a party Any agreement or instrument (other than an industrial award) in force immediately before the commencing day: (a) that arose out of the special functions of the Commission; and (b) to which the Commission was a party; has effect on and after that day, as if: (c) Film Australia were substituted for the Commission as a party to the agreement or instrument; and (d) any reference in the agreement or instrument to the Commission were a reference to Film Australia. ## Part VII—Miscellaneous #### 41 Liability to taxation (1) Subject to subsection (2), the Commission is not subject to taxation under any law of the Commonwealth or of a State or Territory. (2) The regulations may provide that subsection (1) does not apply in relation to taxation under a specified law. #### 43 Members of Commission etc. to observe secrecy A person who is, or has been, a member of the Commission or a member of the staff of the Commission shall not, directly or indirectly, except in the performance of his or her duties, or in the exercise of his or her powers or functions, under this Act, make a record of, or divulge or communicate to any person, any information with respect to the affairs of another person acquired by the first‑mentioned person in the performance of his or her duties, or in the exercise of his or her powers or functions, under this Act. Penalty: $1,000. #### 46 Regulations The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act.