Creative Victoria Act 2017

The Act directly affects only government actors and entities within the Victorian public sector. The direct duty-holders are the Minister, the Secretary, and the Chief Executive. The Minister must prepare a strategy every four years (s 12). The Secretary must appoint the Chief Executive, provide advice to the Minister (s 6(a)), direct and guide the Chief Executive (s 6(b)), and provide staff and resources (s 6(c)). The Chief Executive must perform the functions in s 10, subject to Secretary direction, and report to the Secretary (s 10(3)-(4)). Employees of Creative Victoria are employed under the Public Administration Act 2004 (s 8); the Chief Executive is also employed under that Act (s 7(2)), meaning they are public service employees, not statutory office holders with independent tenure.

The Act also affects statutory and State-owned arts bodies and companies. The Chief Executive has the function to oversee their governance arrangements (s 10(1)(f)). This indicates that those bodies, while separate legal entities, are subject to some level of scrutiny and direction from the Chief Executive. The scope of "oversee the governance arrangements" is not defined. It could encompass board appointments, performance monitoring, financial oversight, or policy direction. The Act gives no detail, leaving it to administrative discretion.

The Act indirectly affects individuals and organisations in the arts and creative sectors who engage with government. The Chief Executive is required to consult with bodies and people in the arts and creative industries to understand opportunities and challenges (s 10(1)(e)). The Chief Executive may also develop partnerships with community and philanthropic organisations, representative and peak bodies, and government bodies at all levels (s 10(1)(g)). Those who participate in such consultations or partnerships may influence policy, but they have no legal entitlement to do so. The aspirational principle in s 4(2)(b) that all individuals are "equally entitled to access opportunities and participate" is not enforceable.

The Act does not affect private businesses, non-profit arts organisations, or individual artists in a direct regulatory sense. It imposes no licensing requirements, no reporting obligations, no fees, no taxes, and no restrictions on creative expression. The Act is entirely about the internal structure of government arts administration. The primary economic effect is that government arts funding and policy direction now flow through a single Chief Executive accountable to the Secretary, rather than through the former Victorian Council of the Arts (a statutory body) and the Director. This centralisation may reduce transaction costs for government but also reduces independent advice and checks. The abolition of the Arts Fund means that any unexpended money in that fund goes to the Consolidated Fund and loses any dedicated status. Future allocations are subject to ordinary budget processes.

The Act imposes duties only on government officers. The principal duties are as follows. The Secretary must appoint a Chief Executive (s 7(1)). The Secretary must provide advice to the Minister relating to arts and creative industries (s 6(a)). The Secretary must direct, support, approve and guide the development of policy and activities by the Chief Executive (s 6(b)). The Secretary must provide staff, resources and other support necessary for the Chief Executive's functions (s 6(c)). The Chief Executive must perform the functions listed in s 10(1) and must report to the Secretary on all matters relating to performance and exercise of powers (s 10(4)). The Chief Executive is subject to the control and direction of the Secretary (s 10(3)). The Minister must ensure that a strategy for the arts and creative industries is prepared no later than 1 September in every fourth year (s 12(1)). The strategy must identify key strategies and review their effectiveness against the five objectives in s 9 (s 12(2)). The Minister has no other duties under the Act.

The Act creates no rights for private persons. Section 5 is explicit: the principles in Part 2 do not create any legal right or give rise to any civil cause of action. This means no person can sue to enforce the principles, seek damages for their breach, or obtain judicial review on the basis that the government has failed to observe them. The principles are parliamentary recognitions only, with the same legal status as a preamble. The objectives of the Chief Executive (s 9) are internal guiding statements; they are not duties owed to the public. A person who feels the Chief Executive is not improving access or encouraging growth has no standing under this Act.

The Chief Executive has a general power to do all things necessary or convenient (s 10(2)). This is a broad discretionary power, but it is not a right that can be invoked by third parties. The power is also constrained by the Secretary's control (s 10(3)). Similarly, the Chief Executive's functions include consulting with bodies and people (s 10(1)(e)) and developing partnerships (s 10(1)(g)), but these are permissive not mandatory. There is no duty to consult any particular group or to enter into any partnership.

The Act does not confer any rights to funding, grants, subsidies, or other benefits. Any funding decisions are made under other legislation or under general executive power. The Act does not establish any funding scheme, trust, or special account. The Arts Fund is abolished (s 15(a)). The Act does not create any new statutory bodies, advisory councils, or committees. The Victorian Council of the Arts is abolished (s 15(b)). There is no requirement to replace it with any advisory body. This removes a layer of independent, community-based advice and centralises decision-making in the Chief Executive and Secretary.

The Act gives the Chief Executive power to oversee governance arrangements of statutory and State-owned arts bodies and companies (s 10(1)(f)). This implies a duty to exercise that oversight, but the Act does not specify standards, reporting lines, or consequences for non-compliance. It is a function rather than a duty enforceable by any external party.

The Act contains no penalty provisions whatsoever. There are no fines, no imprisonment terms, no infringement notices, no civil penalties, and no offence provisions. This is consistent with the Act being a machinery-of-government statute that imposes duties only on government officials. The enforcement of any duty under the Act is internal to government. Failure by the Minister to prepare a strategy within the required timeframe (s 12) has no stated legal consequence. It would be a political matter, not a legal one. Similarly, failure by the Secretary to appoint a Chief Executive or to provide staff and resources could potentially be raised in a governance or employment context, but the Act gives no external enforcement mechanism.

The Act expressly excludes private enforcement. Section 5 provides that Part 2 (principles) does not create any legal right or civil cause of action. This bars any attempt to sue for alleged breach of the principles. It also implicitly suggests that other parts of the Act may not be intended to create private rights either, though s 5 is limited to Part 2. However, the remainder of the Act consists of administrative provisions that are not expressed to confer rights on any person. It is well established that statutes which create duties for the benefit of the public generally do not give rise to private rights of action unless expressly or by necessary implication. The Act contains no language of conferral. Therefore, the Act is essentially unenforceable by any private party.

The Act does not provide for any form of audit, inspection, or review mechanism. There is no requirement for the Chief Executive to publish reports, no requirement for the strategy to be tabled in Parliament, no requirement for independent evaluation. The Chief Executive must report to the Secretary (s 10(4)), but that reporting is internal and not public. The Secretary is not required to report to anyone under this Act. The Minister is not required to table the strategy in Parliament. The Act thus lacks accountability mechanisms that would give the public or industry stakeholders any means to ensure compliance.

The absence of penalties and enforcement is not unusual for this type of administrative restructuring legislation, but it does mean that the Act's effectiveness depends entirely on the good faith and political incentives of the government of the day. If a government chooses not to appoint a Chief Executive, not to prepare a strategy, or not to provide resources, the Act provides no remedy. The only real pressure would be political or through the operation of the Public Administration Act 2004 (which governs employment and may impose obligations on the Secretary as an employer).

The Act sits within a broader legal framework governing Victorian public administration and arts funding. The primary interaction is with the Arts Victoria Act 1972, which is repealed in its entirety (s 14). All references to the former Director, Arts Victoria, or the Victorian Council of the Arts in other legislation and documents are automatically substituted with references to the Chief Executive, Creative Victoria (s 16(2)). This ensures that contracts, agreements, statutory provisions, and other instruments continue to operate without requiring individual amendment. For example, if another Act gives a function to "the Director", that function now vests in the Chief Executive. This substitution is broad and automatic.

The Chief Executive and staff of Creative Victoria are employed under Part 3 of the Public Administration Act 2004 (s 7(2), s 8). That Act governs public service employment terms, conditions, code of conduct, and accountability. The Chief Executive holds office for a term not exceeding five years, on terms specified in the instrument of appointment (s 7(3)). The Public Administration Act will govern any termination, discipline, or conduct issues. The Act does not create a separate statutory office; it creates an employment position within the public service. This means the Chief Executive can be removed more easily than if they held a statutory office with fixed tenure.

The Act gives the Minister a duty to prepare a strategy, but that duty does not override any other statutory obligations. The Act does not mention other laws such as the Victorian Auditor-General's Act 2009, the Financial Management Act 1994, or the Charter of Human Rights and Responsibilities Act 2006. Those laws continue to apply to the actions of the Secretary, Chief Executive, and Minister when performing functions under this Act. For example, the Chief Executive's functions must be exercised compatibly with human rights under the Charter, and financial management obligations under the Financial Management Act apply to any money spent.

The Chief Executive's function to oversee governance arrangements of statutory and State-owned arts bodies (s 10(1)(f)) interacts with the establishing legislation of those bodies. For example, bodies like the National Gallery of Victoria, the State Library, Arts Centre Melbourne, and others each have their own Acts. The Chief Executive's oversight role may supplement or intersect with the responsibilities of their boards and ministers. The Act does not define the extent of oversight, which could create tension if a board considers its statutory independence to be compromised. The Act does not amend those other Acts, so the precise relationship is left to administrative practice.

The Act does not interact with any federal laws. Arts and creative industries are areas of shared Commonwealth-State activity, but the Act does not address Commonwealth funding or programs. The Chief Executive's function to develop partnerships with government bodies at local, state, and federal level (s 10(1)(g)) contemplates interaction with other governments.

The Act does not interact with private law beyond substituting the Chief Executive for the Director in contracts (s 16(1)). This ensures that existing contractual rights and obligations are preserved, with the Chief Executive stepping into the shoes of the Director. No new private law rights or duties are created.

The Act as published is Version No. 001, indicating that it has not been amended since it came into operation. The Table of Amendments confirms there are no amendments made by Acts and subordinate instruments. The section on Amendments Not in Operation states there are none. The Act was assented to on 10 May 2017 and came into operation on 1 July 2017 (Special Gazette (No. 206) 20 June 2017 page 1). It has been in force for over seven years without any legislative change. This stability suggests that the Act's framework has not required adjustment, or that amendments have not been a legislative priority. It may also indicate that the Act is a straightforward consolidation that leaves substantive policy to executive action, so there has been little need to amend the Act itself. The absence of amendments does not necessarily mean the Act is working well; it may simply be that the Act's centralising and discretionary framework grants enough flexibility that governments have not needed to return to Parliament for changes. Any future amendment would likely be to adjust the strategy cycle, rename the department (which is currently "Economic Development, Jobs, Transport and Resources" but might change), or alter the reporting structure. No amendments are currently proposed or in progress.

The source does not list any cases, and there is no indication in the Act itself or in the endnotes of any litigation history. The Act's structure makes it highly unlikely to generate litigation. Section 5 expressly bars any civil cause of action based on the principles in Part 2. The remaining provisions impose duties on government officials that are internal and not justiciable. The only potential ground for litigation would be if a party argued that some action taken under the Act (e.g., overseeing governance of a statutory body) exceeded statutory power or breached other laws, but the Act itself provides no private cause of action. Judicial review of administrative action (under Victorian common law or the Administrative Law Act 1978) could theoretically be sought if the Secretary or Chief Executive acted ultra vires, but the broad discretionary powers and the lack of criteria for their exercise make success unlikely. For example, if the Chief Executive failed to consult with a particular body, that body would have no standing because the consultation function is not mandatory to any particular person. If the Minister failed to prepare a strategy on time, any person could potentially seek an order to compel performance (mandamus), but the Act does not specify a consequence and a court might consider the duty as directory not mandatory. No such case appears to have been brought. The Act has not been litigated. This is consistent with its character as machinery legislation that does not create rights or impose enforceable obligations on anyone outside the executive.

The Act contains several features that could mislead or create unexpected consequences for those dealing with Victorian arts administration. The most significant is the difference between the aspirational language and legal reality. The principles in s 4 declare that all individuals are equally entitled to access opportunities and participate, and that individuals should be free to express ideas and opinions. But s 5 says these create no legal rights. Someone reading only s 4 might believe they have a right to access arts funding or a right to express opinions without government restriction. They do not. The principles are political statements with no binding force. They cannot be used to challenge funding decisions, censorship, or exclusion from programs.

Second, the abolition of the Arts Fund (s 15(a)) means any money previously held in that fund is now part of the Consolidated Fund. This removes any dedicated or hypothecated funding for arts. Previously, the Arts Fund may have had some ring-fencing or special purpose. Now, all arts funding is subject to annual appropriations and government priorities. Non-government arts organisations that assumed the Arts Fund provided a permanent funding stream may be surprised to find it gone. Third, the abolition of the Victorian Council of the Arts (s 15(b)) removes a statutory advisory body that had some independence. The Act does not replace it with any advisory council. The Chief Executive can consult (s 10(1)(e)), but is not required to consult any particular group. There is now no legislatively guaranteed mechanism for industry input into arts policy. Fourth, the Chief Executive is subject to the control and direction of the Secretary (s 10(3)). This means the Chief Executive has no independence. The Secretary, in turn, is a senior public servant accountable to the Minister. Any policy direction can be imposed. This contrasts with the former Director who may have had more autonomy (the Arts Victoria Act 1972 is not in the source, but the Victorian Council of the Arts provided a layer of independent advice). Fifth, the oversight of governance arrangements of statutory and State-owned arts bodies (s 10(1)(f)) is a vaguely worded function. It could be used by the Chief Executive to exert significant influence over boards of major institutions like the National Gallery or Arts Centre, potentially undermining their statutory independence. Sixth, the strategy requirement (s 12) has no teeth. It does not require the strategy to be funded, to be implemented, or to be publicly available. A strategy prepared but ignored would still satisfy the Act. Seventh, the transition provisions in s 16 automatically substitute the Chief Executive for the Director in all existing contracts and documents. Organisations that contracted with the Director should be aware that their counterparty is now the Chief Executive. That substitution is automatic and does not require consent. Finally, there is no sunset or review clause. The Act does not require any periodic review of its operation. Once in force, it continues indefinitely unless repealed.

The Act imposes compliance obligations only on government actors. For the Minister, compliance requires ensuring a strategy for the arts and creative industries is prepared by 1 September in every fourth year (s 12(1)). The strategy must identify key strategies and review their effectiveness against the five objectives in s 9 (s 12(2)). The Minister should also ensure the strategy is prepared in a timely manner and, while not required by the Act, may wish to make it publicly available to demonstrate transparency. For the Secretary, compliance requires appointing a Chief Executive (s 7(1)), providing advice to the Minister (s 6(a)), directing and supporting the Chief Executive (s 6(b)), and providing necessary staff and resources (s 6(c)). The Secretary must also ensure that the Chief Executive is employed under the Public Administration Act 2004 (s 7(2)) and that any staff are employed under that Act (s 8). The Secretary should maintain records of the appointment, any direction given, and the provision of resources.

For the Chief Executive, compliance involves performing the functions in s 10(1): investigating benefits, developing policy for Minister and Secretary approval, implementing actions, informing Minister and Secretary of developments, consulting with industry, overseeing governance of statutory and state-owned arts bodies, and developing partnerships. The Chief Executive must exercise these functions subject to the control and direction of the Secretary (s 10(3)) and must report to the Secretary on all matters (s 10(4)). The Chief Executive also has the power to do all things necessary or convenient (s 10(2)), but should exercise that power in accordance with the objectives in s 9 and subject to Secretary direction. The Chief Executive should also ensure that any obligations under the Public Administration Act 2004 are met, including codes of conduct and reporting.

For non-government organisations, artists, and individuals, there are no direct compliance obligations. However, those who deal with the Chief Executive should note that the Act automatically substitutes the Chief Executive for the former Director in all arrangements and contracts (s 16(1)). If an organisation had a contract with the Director, it now has a contract with the Chief Executive. No renegotiation is required, but the organisation should update its records. Those seeking advice or funding should engage with Creative Victoria under the new structure. References to the Victorian Council of the Arts or the Director in any document should now be read as references to the Chief Executive (s 16(2)). For example, if an application form mentions "Director, Arts Victoria", that should be understood as "Chief Executive, Creative Victoria".

The Act does not require private actors to do anything, but they should be aware that the principles in s 4 are aspirational and create no enforceable rights. They provide a basis for advocacy but not litigation. Organisations that want to influence arts policy may seek to participate in consultations under s 10(1)(e) or partnerships under s 10(1)(g), but there is no right to be consulted.

Overall, compliance with the Act is a matter for the Victorian public service. It imposes minimal administrative requirements: appoint a Chief Executive, prepare a strategy every four years, and ensure the Chief Executive performs their functions under Secretarial direction. The Act is simple, and the main risk is neglecting the strategy requirement, which is a political rather than legal risk.