Entertainment Industry Act 2013

The Act casts a wide net across the entertainment supply chain.

Performers are the primary beneficiaries. The definition (s 4(1)) is expansive: any actor, singer, dancer, acrobat, model, musician or “other performer of any kind” who enters an entertainment industry agreement. Child performers receive additional protection through the cross-reference in s 13(3) to information requirements under the Children’s Guardian Act 2019.

Performer representatives (agents and managers) are the most heavily regulated class. Any person (natural or corporate) who provides any of the s 5 services for financial benefit falls inside the regime. Directors of corporate representatives are personally exposed both to prohibition orders (s 25) and to accessorial liability under s 38.

Venue representatives form a narrower but still distinct category. They act for hirers rather than performers, yet are subject to disbursement and record-keeping obligations and can be required to give financial statements under s 7.

Entertainment industry hirers—any person or company that engages or contracts a performer for a performance—are subject to the payment-timing rule in s 18 and the record-keeping obligation in s 19. “Performance” itself is broadly defined in s 4(1) to cover live, broadcast, or recorded work where the purpose is financial benefit to hirer or performer or both. This captures film, television, theatre, live music, corporate events, modelling shoots and streaming content.

Industrial organisations (unions) may apply to the Industrial Relations Commission on behalf of performers (s 20(1)).

The Secretary of the Department of Customer Service holds significant administrative powers: accepting undertakings, issuing show-cause notices, applying for prohibition orders, maintaining the public register, approving forms, and delegating functions. Authorised officers exercise investigatory powers that can reach directors and managers.

The Industrial Relations Commission and the industrial court (defined by reference to the Industrial Relations Act 1996) are the primary adjudicative bodies for disputes, civil penalties and some offences. The Supreme Court alone can make prohibition orders.

Regulations and external statutes are woven throughout. The Corporations Act 2001 (Cth) supplies the definition of director; the A New Tax System (Australian Business Number) Act 1999 (Cth) is used for ABN disclosure; the Law Enforcement (Powers and Responsibilities) Act 2002 governs search warrants. The Fines Act 1996 applies to penalty notices.

Finally, the public at large gains access to the register (s 31), which is intended to deter misconduct through reputational transparency.

Duties of performer representatives dominate the statute. They must:

• Establish and operate trust accounts (s 6).
• Issue itemised financial statements within the shortest practicable time (s 7).
• Disclose dual representation in writing (s 8).
• Observe the fee cap unless a compliant managerial agreement is in place (s 11).
• Provide prescribed pre-contract information, including cooling-off rights and, for child performers, parental information under child-employment laws (s 13).
• Retain accounting records, financial statements and contracts for five years and supply copies on request within tight timeframes (s 14).
• Comply with the Schedule 1 code of conduct, which includes conflict-of-interest management, confidentiality, and a positive obligation to ensure employees comply (cl 2(8)).

Venue representatives have lighter but non-negotiable duties: disburse funds within 14 days (s 16) and keep five-year accounting records that explain the basis of payments (s 17).

Hirers must pay within one month (s 18) and keep parallel payment records (s 19).

Performers’ rights include:

• The right to prompt and accurate financial information.
• The right to terminate a managerial agreement during the cooling-off period with limited liability (s 12).
• The right to request copies of records (ss 14(2), 17(4)).
• The right to apply to the Industrial Relations Commission for conciliation and arbitration of any dispute, with the Commission empowered to make “fair and reasonable” orders (s 20).
• The right to bring civil-penalty proceedings personally against a performer representative (s 43(2)(b)).
• Protection against contracting out (s 39).

Representatives and hirers enjoy procedural protections: show-cause notices must give at least 14 days to respond (s 24(3)), undertakings can be varied only with consent (s 21(2)), and the register must be corrected or purged when convictions are quashed or orders expire (ss 32–33).

The code of conduct adds substantive rights: a performer must be told the “full nature and extent” of any conflict (cl 2(4)–(5)) and of any referral fee (cl 2(6)). Confidential information cannot be used except with authority or legal compulsion (cl 2(7)).

The Act deploys a classic enforcement pyramid.

At the base are criminal offences of varying severity. Obstruction of an authorised officer carries 50 penalty units (s 29). Failure to keep records is 20 penalty units (ss 14(3), 17(5), 19(4)). The most serious offence is non-compliance with an Industrial Relations Commission order—50 penalty units or six months’ imprisonment (s 20(4)). Director accessorial liability (s 38) extends personal criminal exposure.

Civil penalties under s 43 are the workhorse for financial and disclosure breaches. The industrial court or Local Court may impose up to $10,000 for breach of the trust-account disbursement rule, financial-statement obligation, information-provision duty, venue-representative disbursement duty, hirer payment timing, or the code of conduct. Proceedings may be brought by authorised officers, by the affected performer, or by others authorised by regulation. A six-year limitation applies (s 43(3)). Evidence given in ordinary debt-recovery proceedings is inadmissible in civil-penalty proceedings (s 43(5)), preventing tactical use of civil claims to obtain admissions.

Enforceable undertakings (ss 21–22) allow the Secretary to negotiate remedial action without immediate litigation. Breach enables the court to order compliance, disgorgement of financial benefit, compensation, or any other appropriate order.

The apex sanction is the entertainment industry prohibition order (s 25). After a show-cause process the Secretary may apply to the Supreme Court. The Court may prohibit the person (or director) from acting as a performer representative indefinitely or for a specified period and may order compensation. These orders are registrable and therefore carry reputational and commercial consequences.

The public register (Part 4) functions as both enforcement tool and deterrent. Publication occurs only after appeal rights are exhausted or determined. Information must be removed after two years for convictions and civil penalties, or earlier if overturned.

Penalty notices (s 35) provide an administrative on-the-spot fine route for prescribed offences. The Fines Act 1996 applies.

Double-jeopardy protection (s 44) prevents both conviction and civil penalty for the same conduct, though payment of a penalty notice is treated as a conviction for this purpose.

The Act is deliberately integrated with the broader industrial-relations and corporations framework.

It defines “industrial court” and dispute-resolution pathways by reference to the Industrial Relations Act 1996 (NSW). Authorised officers are drawn from the inspector cohort created under that Act (s 26). Section 20 gives the Industrial Relations Commission conciliation and arbitration powers that mirror its general industrial powers, allowing it to make orders that can, in effect, vary contractual terms between performer and representative.

Corporations law is engaged at several points. The definition of “director” adopts the Corporations Act 2001 (Cth) meaning (s 4(1)). Director liability under s 38 mirrors accessorial provisions in the Corporations Act and the Australian Consumer Law. ACN and ABN disclosure in financial statements (s 7(3)) ensures traceability.

Child-protection legislation is incorporated via s 13(3): when a representative proposes to contract with a child performer, prescribed information about the Children’s Guardian Act 2019 and other child-employment laws must be given to parents. This dovetails with the separate regulatory regime for child employment in entertainment.

Search and seizure powers are not self-contained; s 28 applies Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) to warrants, and police may accompany authorised officers (s 28(2A)).

Confidentiality obligations (s 34) contain express carve-outs for Ombudsman investigations, Children’s Guardian referrals, and legal proceedings, preventing the Act from conflicting with those statutes.

The regulation-making power (s 45) allows the Governor to exclude classes of persons from the Act’s operation, providing flexibility to avoid overlap with federal screen-industry awards or other specialist schemes.

Finally, s 39’s anti-avoidance rule (“contracting out void”) ensures the Act prevails over common-law contractual freedom, a technique used in much protective labour legislation.

The text reflects amendments up to 2023. The most visible are administrative. The Better Regulation and Customer Service Legislation Amendment (2022) Act substituted “Secretary of the Department of Customer Service” for earlier departmental titles (see amendments to ss 4, 31, 36, 41). This reflected machinery-of-government changes rather than policy shifts.

The Children’s Guardian Act 2019 amendments (2019 No 25, Sch 5.18) updated s 13(3) to refer to the new statute that replaced earlier child-employment regulation. The purpose was to maintain currency of parental-information obligations.

In 2020, s 28 was amended (2020 No 25, Sch 2.3) to clarify that a police officer may accompany an authorised officer under a search warrant “as if the police officer were named in the warrant”. This removed any doubt about the lawfulness of joint operations.

The Statute Law (Miscellaneous Provisions) Act 2023 made minor adjustments to s 43, ensuring civil-penalty language remained consistent with the Interpretation Act 1987.

No substantive expansion of scope has occurred. The fee-cap percentages and many procedural details remain in regulations that have not been radically altered since 2013. The 2013 Act itself was a deliberate policy shift away from the 1989 licensing model toward a lighter-touch, conduct-and-disclosure model. Subsequent amendments have been corrective or machinery in nature, designed to keep the Act aligned with changing departmental structures, child-protection law, and search-warrant practice. The statutory review required by s 46 (both the 3-year interim and 8-year full review) has not produced publicly reported recommendations that would suggest imminent major overhaul.

Because most breaches are dealt with by civil penalty or undertaking, reported case law is sparse. However, several themes emerge from Industrial Relations Commission and Supreme Court decisions.

In prohibition-order litigation the Supreme Court has emphasised the protective rather than punitive purpose of s 25. The Court will grant an order where there is a real risk of future unlawful conduct, even if the representative has ceased trading. “Unlawful conduct” is interpreted broadly to include repeated breaches of the code of conduct that fall short of criminality (s 4 definition). Courts have accepted that a pattern of late payments, opaque financial statements and undisclosed conflicts can justify prohibition, particularly where vulnerable child performers are involved.

Industrial Relations Commission dispute-resolution decisions under s 20 have clarified that the Commission’s power to make “fair and reasonable” orders includes ordering repayment of excess fees charged above the capped amount and requiring specific performance of trust-account obligations. The Commission has declined to imply additional fiduciary duties beyond those expressly stated in the Act and code.

A recurring controversy concerns the boundary between a “performer representative” and a casual manager or friend who occasionally negotiates a gig. The s 5 definition’s “for financial benefit” limb has been read to capture even sporadic commission arrangements, producing complaints from small operators that the compliance burden is disproportionate. The regulation-making power to exclude classes of persons (s 45(2)(d)) has been used sparingly, leaving many micro-managers technically regulated.

Another live issue is the interaction between the Act and federal modern awards or enterprise agreements that contain agent-commission clauses. Performers sometimes argue that an award clause authorising a particular percentage overrides the statutory cap; representatives counter that s 39 prevents contractual (including award-based) variation of the Act. The Industrial Relations Commission has tended to treat the statutory cap as non-derogable.

The public register has generated controversy when spent matters have remained visible longer than performers consider fair. Although ss 32–33 contain mandatory removal triggers after two years, delays in the Secretary becoming “aware” of appeal outcomes have led to calls for automated court-to-register data feeds.

No High Court constitutional challenge has succeeded or even been reported. The Act’s reliance on State industrial relations power and general consumer-protection style regulation places it squarely within State competence.

Most practitioners miss several subtle traps.

First, the trust-account obligation in s 6(2) is not limited to fees; it catches any money received “on behalf of a performer, from any person”. A representative who receives a sponsor payment, merchandise royalty or even a gift intended for the performer must deposit it if not paid out immediately. Many standard client-service agreements fail to address this.

Second, the cooling-off waiver (s 12(7)) must be given at the time of entering into the agreement using the Secretary-approved form. A waiver signed even one day later is ineffective, leaving the full three-business-day period open. Courts have treated post-dated waivers as void.

Third, s 11(3) prohibits a representative who is also the venue representative from charging the performer any fee for that performance (unless a managerial agreement applies). This “no double-dip” rule is often overlooked when a talent agency also promotes its own venue nights. The prohibition is absolute; the civil-penalty route under s 43 is available to the performer personally.

Fourth, the five-year record-retention obligation (ss 14, 17, 19) runs from the date the record is made, not from the date of the performance or termination of the contract. In long-running representation relationships this can require retention well beyond the apparent commercial life of the file.

Fifth, authorised-officer powers under s 27(3) allow written notices to produce documents or information at a time and place chosen by the officer. Because the power is not limited to “reasonable” notice (contrast the residential-premises restriction), officers have issued same-day demands. Failure to comply without reasonable excuse is a 50-penalty-unit offence (s 29).

Sixth, the definition of “unlawful conduct” in s 4 includes a breach of the code of conduct “whether or not any proceedings have been brought”. This allows the Secretary to move straight to a show-cause notice and prohibition-order application without first obtaining a conviction or civil-penalty order. The Supreme Court has accepted that a single serious breach, if it demonstrates unfitness, can ground a permanent prohibition.

Finally, many representatives assume that because the Act uses the word “representative” it does not apply to them if they describe themselves as “managers”. Section 10’s managerial-agreement provisions and the broad s 5 definition show that self-description is irrelevant; it is the substance of the services provided for financial benefit that matters.

Compliance begins with structural separation. A firm that both represents performers and promotes venues must maintain clear written disclosure protocols (s 8) and separate trust ledgers. Template client-service agreements should be reviewed annually against the latest regulations setting the capped percentage and excluded amounts (s 9(2)).

All money received on behalf of performers must flow through a dedicated general trust account. Reconciliations should be performed at least monthly and retained for the full five-year period. Financial statements must be generated automatically on receipt of funds; the s 7(3) particulars (method of payment, itemised deductions, ACN/ABN) cannot be added later. Electronic signatures and secure client portals satisfy the “give” requirement provided the performer can access the document immediately.

Pre-contract information packs required by s 13 must be given before any agreement is signed. For managerial agreements the pack must expressly address the cooling-off period, the waiver process, and the effect of the additional-fee acknowledgement. Child-performer packs must incorporate the latest Children’s Guardian fact sheets. Delivery should be logged with date, time and method; the approved forms for cooling-off waiver and termination should be appended.

Record-keeping systems must be centralised at the principal place of business (or electronically accessible from there) and indexed so that any performer’s file can be produced within three days for collection or 14 days for posting. Cloud storage is acceptable provided backup and access controls meet any future regulatory standards.

Staff training is mandatory. Clause 2(8) of the code requires representatives to use best endeavours to ensure employees comply with the Act and code. Annual refresher training on conflict disclosure, referral-fee transparency and confidentiality should be documented.

Dispute-avoidance mechanisms should be built into contracts: clear complaints-handling procedures that feed into the s 20 Industrial Relations Commission pathway reduce escalation risk. Where a dispute arises, early referral to the Commission is advisable; the Commission’s broad power to make “fair and reasonable” orders can resolve issues before they crystallise into civil-penalty proceedings.

For high-risk representatives (those with past complaints or operating in the children’s-entertainment space), proactive engagement with the Secretary is prudent. Voluntary undertakings under s 21 can head off prohibition-order applications and demonstrate rehabilitation if a show-cause notice later issues.

Finally, compliance is not static. Representatives must monitor changes to the regulations that prescribe the capped percentage, the content of information packs, and penalty-notice offences. The statutory review reports required by s 46, though not yet triggering major reform, signal that policy settings remain under periodic scrutiny. Maintaining a compliance calendar keyed to the 14-day disbursement rule, five-year record retention, and two-year register-purgation triggers will keep most operators outside the enforcement pyramid.