This Act creates a regulatory framework for commercial relationships in the entertainment industry: it requires performer representatives, venues and hirers to hold performer funds in trust accounts, keep records and give financial statements; caps representative fees (with a narrowly circumscribed managerial‑agreement exception and cooling‑off); and mandates disclosures and retention.
It empowers the Secretary, authorised officers and courts to investigate, publish findings, and impose civil/criminal penalties or prohibition orders. Performers gain statutory protections; representatives, venues and hirers bear compliance costs and enforcement risk.
The Entertainment Industry Act 2013 (NSW) establishes a comprehensive conduct and transparency regime for intermediaries in the NSW entertainment industry. At its core it replaces the licensing system that existed under the repealed Entertainment Industry Act 1989 with a set of direct statutory obligations, supported by record-keeping, financial controls, a mandatory code of conduct, and a tiered enforcement pyramid.
Part 2 is the operational heart of the statute. Division 1 defines a performer representative (s 5) as any person who, for financial benefit, provides any of six enumerated services to a performer: procuring work opportunities, negotiating performance terms, finalising payment arrangements, negotiating attendance, administering performer-hirer agreements, or organising publicity. The definition expressly excludes pure employees of such representatives. These representatives are subject to stringent money-handling rules. Section 6 mandates that money received on behalf of a performer must be held exclusively for that performer and, if not paid immediately, deposited into a general trust account at an authorised deposit-taking institution in NSW. Disbursement must occur within 14 days as directed by the performer (s 6(2)(b)). Accounting records must disclose the true position at all times, be kept at the principal place of business, and comply with regulations (s 6(4)–(6)). Breach of most of these provisions (other than the 14-day disbursement rule) is a strict offence carrying 75 penalty units (s 6(7)).
Section 7 imposes a parallel obligation on any entertainment industry representative who receives money to issue financial statements promptly to the performer, any other representative involved, and the hirer. The content of these statements is prescribed in detail: method of payment, itemised deductions for the representative’s fee, expenses, dates of performances, business name, ACN and ABN where applicable. Failure to provide the statement triggers a civil penalty not exceeding $10,000 (note to s 7(4) and s 43).
Current sections
Direct links to the current provisions in Entertainment Industry Act 2013.
This Act commences on a day or days to be appointed by proclamation.
3
Objects of Act
3 Objects of Act
3 Objects of Act
The objects of this Act are—
(a) to provide effective, fair and consistent regulation of the entertainment industry, and
(b) to provide protections for performers.
4
Definitions
4 Definitions
4 Definitions
(1) In this Act—
authorised officer—see section 26.
business day means a day that is not a Saturday, a Sunday or a public holiday throughout New South Wales.
capped amount—see section 9.
civil penalty order means an order under section 43.
code of conduct means the code of conduct for performer representatives set out in Schedule 1.
director of a corporation means a person who is a director of a corporation within the meaning of the Corporations Act 2001 of the Commonwealth.
entertainment industry agreement means an agreement between a performer and a performer representative for the performer representative to provide one or more of the services referred to in section 5.
entertainment industry hirer means a person who engages or contracts any performer for the purpose of a performance.
entertainment industry managerial agreement—see section 10.
entertainment industry prohibition order—see section 25 (2).
entertainment industry representative means a performer representative or a venue representative.
function includes a power, authority or duty and exercise a function includes perform a duty.
industrial court means an industrial court within the meaning of Part 1 of Chapter 7 of the Industrial Relations Act 1996.
performance means—
(a) a performance that is given in any place or by the use of any medium for the transmission of sound or images, or both, or
(b) a performance that is recorded for the purpose of using the recording in any place or for the transmission of sound or images, or both,
and one of the purposes of which is the financial benefit of an entertainment industry hirer or performer, or both.
performer means any actor, singer, dancer, acrobat, model, musician or other performer of any kind who enters an entertainment industry agreement with a performer representative.
performer representative—see section 5.
Secretary means the Secretary of the Department of Customer Service.
show cause notice means a notice served by the Secretary under section 24.
unlawful conduct means conduct by a performer representative that constitutes—
(a) a breach of the code of conduct, or
(b) a breach of a term of an undertaking given by the performer representative under section 21, or
(c) a contravention of a provision of this Act or the regulations, whether or not any proceedings have been brought in respect of the contravention.
venue representative—see section 15.
(2) In this Act, a reference to an award or industrial agreement is a reference to an award or industrial agreement relating to the employment of performers in the entertainment industry.
(3) Notes included in this Act do not form part of this Act.
s 4: Am 2022 No 59, Sch 3.20.
Part 2
Entertainment industry obligations
Part 2 Entertainment industry obligations
Part 2 Entertainment industry obligations
Division 1
Performer representatives
Division 1 Performer representatives
Division 1 Performer representatives
5
Performer representative
5 Performer representative
5 Performer representative
In this Act, a performer representative means a person who, for financial benefit, provides or agrees to provide one or more of the following services to a performer (whether or not the agreement also provides for other services to be provided)—
(a) seeking or finding work opportunities for the performer,
(b) negotiating terms of an agreement for, and the conditions of, a performance,
(c) finalising arrangements relating to the payment of the performer,
(d) negotiating arrangements relating to the attendance of the performer at a performance,
(e) administering the agreement between the performer and an entertainment industry hirer,
(f) making arrangements for publicity attendances and related publicity responsibilities of the performer,
but does not include a person who does so solely as an employee of any such representative.
6
Trust accounts to be established by performer representatives
6 Trust accounts to be established by performer representatives
6 Trust accounts to be established by performer representatives
(1) A performer representative who receives money on behalf of a performer, from any person, must—
(a) hold the money exclusively for the performer, and
(b) ensure that the requirements of this Act and the regulations under this Act are complied with in relation to the money.
(2) Money received on behalf of a performer by a performer representative that is not paid to the performer immediately (or within such period as may be prescribed by the regulations) must—
(a) be paid to the credit of a general trust account at an authorised deposit-taking institution in New South Wales and be held in accordance with the regulations, and
(b) be disbursed as directed by the performer within 14 days after the performer representative receives the money.
Note.
Section 43 provides that the industrial court or Local Court may order a person to pay a pecuniary penalty not exceeding $10,000 for a contravention of paragraph (b).
(3) A trust account under this section must be kept exclusively for the purpose of money received on behalf of a performer.
(4) A performer representative must keep accounting records in respect of money received on behalf of a performer.
(5) The accounting records must—
(a) disclose at all times the true position concerning the money received, and
(b) be kept at the principal place of business of the performer representative, and
(c) be otherwise kept in accordance with the regulations.
(6) The regulations may make provision for or with respect to the administration of trust accounts under this section, in particular—
(a) the establishment of trust accounts, and
(b) the keeping of documents and records by performer representatives.
(7) A person who, without reasonable excuse, contravenes a provision of this section (other than subsection (2) (b)) or the regulations under this section is guilty of an offence.
Maximum penalty—75 penalty units.
7
Financial statements for money received for performers
7 Financial statements for money received for performers
7 Financial statements for money received for performers
(1) An entertainment industry representative who receives money on behalf of a performer must, as soon as practicable after receiving the money, give a financial statement to the following persons—
(a) the performer,
(b) any other entertainment industry representative who has represented the performer, or carried out activities on behalf of the performer, in connection with the performance for which the money has been received,
(c) the entertainment industry hirer (or other person) by whom or on whose behalf the money has been paid.
(2) A financial statement required to be given to another entertainment industry representative must include—
(a) a statement of the amount of money received on behalf of the performer by the representative giving the statement, and
(b) a statement of the amount of money paid to the performer for the performance.
(3) A financial statement required to be given to a performer must include—
(a) a statement of the amount of money received on behalf of the performer by the representative giving the statement, and
(b) a statement of the amount of money paid to the performer for each performance, including the following particulars—
(i) the method of payment,
(ii) any deduction from the money received by the representative that has been made for the representative’s fee or other remuneration,
(iii) any deduction from the money received by the representative that has been made for expenses incurred by the performer in connection with the performance (such as for travel expenses and equipment hire) and paid for by the representative, and
(c) the date and details of any performance to which the statement relates, and
(d) any business name under which the representative carries on business as a representative, and
(e) if the representative is a corporation under the Corporations Act 2001 of the Commonwealth, the corporation’s ACN within the meaning of that Act, and
(f) if the representative has an ABN for his or her business as a representative, the ABN.
(4) A person must not, without reasonable excuse, fail to provide a financial statement required by this section.
Note.
Section 43 provides that the industrial court or Local Court may order a person to pay a pecuniary penalty not exceeding $10,000 for a contravention of this subsection.
(1) A performer representative who is both a performer representative and venue representative in respect of a performance is, by instrument in writing, to give notice of that fact to both the performer and the entertainment industry hirer.
(2) A person must not, without reasonable excuse, fail to give notice under this section.
Maximum penalty—40 penalty units.
9
Capped amount of performer representative fees
9 Capped amount of performer representative fees
9 Capped amount of performer representative fees
(1) The capped amount for the fees and other remuneration of a performer representative is—
(a) the percentage, prescribed by the regulations, of the total amount payable to the performer for any performances in respect of which the performer representative provided services under an entertainment industry agreement, or
(b) if there are no performances in respect of which the performer representative provided a service under an entertainment industry agreement, the amount determined in accordance with the regulations.
(2) The regulations may make provision for or with respect to the fees and other remuneration referred to in this section and, in particular—
(a) may prescribe different percentages of fees or other remuneration in respect of different kinds of performances or services provided by performer representatives, or other matters, and
(b) may prescribe the amounts (being amounts payable to performers) that are to be excluded when calculating such fees or other remuneration, and
(c) may prescribe the manner in which the capped amount for fees or other remuneration is to be determined under an entertainment industry agreement when there are no performances in respect of which the performer representative provides a service.
10
Entertainment industry managerial agreement
10 Entertainment industry managerial agreement
10 Entertainment industry managerial agreement
(1) An entertainment industry managerial agreement is an entertainment industry agreement—
(a) that is in writing, and
(b) under which the performer representative agrees to provide services in relation to the management of the reputation, career or career development of the performer that are in addition to the services referred to in section 5, and
(c) that fixes the fees payable by the performer in respect of the services specified in the agreement, and
(d) that includes an additional fee acknowledgement.
(2) An additional fee acknowledgement means an acknowledgement by the performer that—
(a) the performer understands that the written agreement will allow the performer representative to demand or receive fees or other remuneration that exceeds the capped amount, and
(b) the performer understands that a cooling-off period applies in respect of the agreement, and
(c) the performer representative has provided the performer with the information required to be provided under section 13.
11
Fees of performer representatives
11 Fees of performer representatives
11 Fees of performer representatives
(1) A performer representative must not demand or receive a fee or other remuneration from a performer under an entertainment industry agreement that exceeds the capped amount, unless the agreement is an entertainment industry managerial agreement and the additional services under the agreement are provided.
Maximum penalty—100 penalty units.
(2) A performer representative must not demand or receive fees or other remuneration from a performer for—
(a) the performer joining or auditioning to join or enter into a contract with the performer representative, or
(b) the retention or on-going representation of the performer by the performer representative.
Maximum penalty—100 penalty units.
(3) A performer representative must not demand or receive a fee or other remuneration from a performer under an entertainment industry agreement for any performance in respect of which the performer representative is also the venue representative (unless the agreement is an entertainment industry managerial agreement and the additional services under the agreement are provided).
Maximum penalty—100 penalty units.
12
Cooling-off period for agreements including additional fee acknowledgment
12 Cooling-off period for agreements including additional fee acknowledgment
12 Cooling-off period for agreements including additional fee acknowledgment
(1) There is to be a cooling-off period for every entertainment industry managerial agreement.
(2) The cooling-off period ends at 5pm on the third business day after the day on which the entertainment industry managerial agreement was entered into.
(3) A performer may terminate an entertainment industry managerial agreement before the end of the cooling-off period, by notice in writing to the performer representative (a notice of termination).
(4) If a performer gives a performer representative a notice of termination before the end of the cooling-off period—
(a) the entertainment industry managerial agreement is taken to be terminated at the time the notice is given (subject to this section), and
(b) the performer representative is entitled to payment, in respect of any services provided in accordance with the agreement before its termination, of fees or other remuneration not exceeding the capped amount.
(5) If at the time of the termination of the agreement the performer is not engaged for a performance, the performer representative is entitled to payment by the performer of the reasonable costs incurred by the representative in providing services to the performer in accordance with the agreement before the notice of termination was given.
(6) If the entertainment industry managerial agreement so provides, the agreement remains in force after the notice of termination is given to the extent that it requires—
(a) the performer to pay any fee or other remuneration that does not exceed the capped amount, and
(b) the performer representative to provide one or more services specified in the agreement as being services that the representative will provide if notice of termination is given.
(7) A performer may waive the cooling-off period provided by this section, at the time of entering into an agreement, by notice in writing to the performer representative.
(8) Notice of termination and notice of the waiver of the cooling-off period must be in the form approved by the Secretary.
13
Performer representatives to provide information to performers
13 Performer representatives to provide information to performers
13 Performer representatives to provide information to performers
(1) A performer representative must, before entering into an entertainment industry agreement with a performer or prospective performer, provide the performer with the information or documents, if any, prescribed by the regulations relating to this Act or the regulations under this Act or to the entertainment industry generally.
(2) Without limiting subsection (1), the prescribed information or documents may relate to—
(a) the cooling-off period referred to in section 12 (including the waiver of the cooling-off period), and
(b) the effect of entering into an entertainment industry managerial agreement.
(3) A performer representative must, before entering into an agreement with a performer who is a child, provide the parents of the child with the information, if any, required by the regulations relating to the conditions of employment of minors under the Children’s Guardian Act 2019 or any other Act or law.
(4) A performer representative must not, without reasonable excuse, fail to comply with a requirement imposed under this section.
Note.
Section 43 provides that the industrial court or Local Court may order a person to pay a pecuniary penalty not exceeding $10,000 for a contravention of this subsection.
s 13: Am 2019 No 25, Sch 5.18.
14
Records to be kept by performer representatives
14 Records to be kept by performer representatives
14 Records to be kept by performer representatives
(1) A performer representative must keep the following records at the representative’s principal place of business for at least 5 years after the records are made—
(a) each accounting record the representative is required to keep under section 6 (4) in respect of money received on behalf of a performer,
(b) a copy of each financial statement provided by the representative under section 7,
(c) a copy of each written agreement the representative has entered into with a performer or with another person on behalf of the performer.
(2) A performer representative who holds any record referred to in subsection (1) (b) or (c) in relation to a performer must, after receiving a request by or on behalf of the performer for a copy of the record—
(a) make the copy available for collection at the representative’s principal place of business if requested to do so within 3 days or such other time as may be agreed, or
(b) send the copy (whether by post or otherwise) to the performer within 14 days.
(3) A person who, without reasonable excuse, contravenes this section is guilty of an offence.
Maximum penalty—20 penalty units.
Division 2
Venue representatives
Division 2 Venue representatives
Division 2 Venue representatives
15
Venue representative
15 Venue representative
15 Venue representative
In this Act, a venue representative means a person who, for financial benefit, acts on behalf of an entertainment industry hirer to arrange a performance by a performer at a particular venue, but does not include an entertainment industry hirer or a person who arranges for a performance solely in the capacity of an employee of a venue representative.
16
Venue representative to disburse funds
16 Venue representative to disburse funds
16 Venue representative to disburse funds
A venue representative must not, without reasonable excuse, fail to disburse any money received on behalf of a performer to the performer within 14 days of its receipt or otherwise in accordance with the directions of the performer.
Note.
Section 43 provides that the industrial court or Local Court may order a person to pay a pecuniary penalty not exceeding $10,000 for a contravention of this section.
17
Records to be kept by venue representatives
17 Records to be kept by venue representatives
17 Records to be kept by venue representatives
(1) A venue representative must keep accounting records in respect of money that the representative pays to a performer representative for the services of a performer.
(2) Without limiting subsection (1), the accounting records must disclose the basis on which the payments are made in addition to any other particulars of the payments.
(3) The venue representative must keep each such accounting record at the representative’s principal place of business for at least 5 years after the record is made.
(4) A venue representative who holds any such record must, after receiving a request by or on behalf of a performer for a copy of the record—
(a) make the copy available for collection at the representative’s principal place of business if requested to do so within 3 days or such other time as may be agreed, or
(b) send the copy (whether by post or otherwise) to the performer within 14 days.
(5) A person who, without reasonable excuse, contravenes this section is guilty of an offence.
Maximum penalty—20 penalty units.
Division 3
Entertainment industry hirers
Division 3 Entertainment industry hirers
Division 3 Entertainment industry hirers
18
Time for making of payment by entertainment industry hirers
18 Time for making of payment by entertainment industry hirers
18 Time for making of payment by entertainment industry hirers
An entertainment industry hirer who is required to make a payment to a performer in relation to a performance must not, without reasonable excuse, fail to make the payment within—
(a) 1 calendar month after the date of the performance, or
(b) such other period as may be specified in an agreement between the performer and the hirer in writing.
Note.
Section 43 provides that the industrial court or Local Court may order a person to pay a pecuniary penalty not exceeding $10,000 for a contravention of this section.
19
Records to be kept by entertainment industry hirers
19 Records to be kept by entertainment industry hirers
19 Records to be kept by entertainment industry hirers
(1) An entertainment industry hirer who engages or contracts with a performer for a performance must keep accounting records in respect of any money paid to an entertainment industry representative for the services of the performer.
(2) Without limiting subsection (1), the accounting records must disclose the basis on which the payments are made in addition to any other particulars of the payments.
(3) An entertainment industry hirer who is required to keep records under this section must keep the record, at the hirer’s principal place of business, for at least 5 years after it is made.
(4) An entertainment industry hirer who, without reasonable excuse, contravenes this section is guilty of an offence.
Maximum penalty—20 penalty units.
Division 4
Disputes arising between performer and entertainment industry representatives
Division 4 Disputes arising between performer and entertainment industry representatives
Division 4 Disputes arising between performer and entertainment industry representatives
20
Disputes may be resolved by Industrial Relations Commission
20 Disputes may be resolved by Industrial Relations Commission
20 Disputes may be resolved by Industrial Relations Commission
(1) If a question, dispute or difficulty arises between a performer and an entertainment industry representative or entertainment industry hirer, the performer, or an industrial organisation acting on behalf of a performer, may apply to the Industrial Relations Commission to have the matter determined by conciliation and, if necessary, arbitration.
(2) The Industrial Relations Commission may conduct such a dispute resolution process in such manner as the Commission considers appropriate.
(3) The Industrial Relations Commission may make such orders in relation to such a question, dispute or difficulty as the Commission considers fair and reasonable in the circumstances.
(4) A person who fails to comply with an order of the Industrial Relations Commission under this section is guilty of an offence.
Maximum penalty—50 penalty units or imprisonment for 6 months, or both.
Part 3
Enforcement
Part 3 Enforcement
Part 3 Enforcement
21
Secretary may accept undertakings
21 Secretary may accept undertakings
21 Secretary may accept undertakings
(1) The Secretary may accept (by written notice) a written undertaking given by an entertainment industry representative or entertainment industry hirer, relating to the carrying on of the business of the entertainment industry representative or hirer, if the Secretary reasonably believes that the entertainment industry representative or hirer has contravened—
(a) in the case of a performer representative—
(i) the code of conduct, or
(ii) section 6 (2) (b), 7 (4) or 13 (4), or
(b) in the case of a venue representative, section 16, or
(c) in the case of an entertainment industry hirer, section 18.
(2) The representative or hirer may withdraw or vary the undertaking at any time but only with the Secretary’s written consent.
(3) The Secretary must not accept an undertaking given by an entertainment industry representative or entertainment industry hirer if proceedings for a civil penalty have been instituted in relation to the alleged contravention.
22
Enforcement of undertakings
22 Enforcement of undertakings
22 Enforcement of undertakings
(1) The Secretary may apply to an industrial court or the Local Court for an order under subsection (2) against a person if the Secretary considers that the person has breached an undertaking given under this Part.
(2) An industrial court or the Local Court may make all or any of the following orders if it is satisfied that the person has breached an undertaking—
(a) an order directing the person to comply with the term of the undertaking concerned,
(b) an order directing the person to pay to the State an amount not exceeding the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach,
(c) any order that the Court thinks appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach,
(d) any other order that the Court considers appropriate.
23
Definition
23 Definition
23 Definition
In this Division, director of a corporation includes a person who is concerned in the management of the corporation.
24
Secretary may require person to show cause
24 Secretary may require person to show cause
24 Secretary may require person to show cause
(1) The Secretary may, if of the opinion that a performer representative or the director of a corporation that carries on the business of a performer representative has engaged in unlawful conduct, serve on the representative or director a show cause notice.
(2) A show cause notice issued by the Secretary is to require the performer representative or director on whom the notice was served to show cause why the representative or director should not, for the reason specified in the notice—
(a) in the case of a performer representative, be prevented from continuing to carry on the business of a performer representative, or
(b) in the case of a person who is a director of a corporation that carries on the business of a performer representative, be prevented from being a director of such a corporation.
(3) The notice must—
(a) be in writing, and
(b) specify the period (being at least 14 days after the notice is served) in which the person may show cause.
(4) The person on whom a notice to show cause has been served under this section may, within the period specified in the notice, make a written submission to the Secretary in relation to the matters to which the notice relates.
(5) The Secretary—
(a) is to consider any submission made within the period specified in the notice, and
(b) may conduct such inquiries, or make such investigations, in relation to the matters to which the notice relates as the Secretary thinks appropriate.
25
Entertainment industry prohibition orders
25 Entertainment industry prohibition orders
25 Entertainment industry prohibition orders
(1) The Secretary may, after serving a show cause notice on a person under this Part and taking into consideration any submissions made in relation to the matter, apply to the Supreme Court for an order under this section in respect of the person if the Secretary is of the opinion that—
(a) the person is likely to engage again, or continue to engage, in unlawful conduct, or
(b) if the person is a director of a corporation that carries on the business of a performer representative, the person is likely to knowingly authorise or permit the corporation to engage again, or continue to engage, in unlawful conduct.
(2) The Supreme Court may, on the application of the Secretary, make an order (an entertainment industry prohibition order) prohibiting the person from carrying on the business of a performer representative or being a director of a corporation that carries on the business of a performer representative for an indefinite period or for a period specified in the order and may make such other orders as the Court considers appropriate in relation to—
(a) the carrying on of the business of a performer representative by the person, or
(b) if the person is a director of a corporation that carries on the business of a performer representative, the conduct of a person as a director of such a corporation.
(3) The Supreme Court may also, if the Court is satisfied that a person has sustained loss or damage as a result of the unlawful conduct of the person against whom the order is made, order the person to compensate the other person for the loss or damage.
(4) The Supreme Court may amend or revoke an order made under this section, on the application of the Secretary or of the person who is subject to the order concerned, if the Court is satisfied that there are reasonable grounds for doing so.
(b) any other person eligible to be appointed as an inspector under that Act who is authorised, in writing, by the Secretary or the Minister to exercise the functions of an authorised officer.
27
Authorised officer’s powers
27 Authorised officer’s powers
27 Authorised officer’s powers
(1) An authorised officer may exercise powers under this section only for the purpose of investigating possible unlawful conduct.
(2) An authorised officer may, at any reasonable time, enter and inspect any premises that the officer has reasonable grounds to suspect are the premises of an entertainment industry representative or entertainment industry hirer, and inspect any work being done there and, while on any premises entered under this section—
(a) require any person employed or engaged at the premises to produce to the authorised officer such records or other documents as are required to be kept under this Act or the regulations and are in the custody or under the control of the person so employed or engaged, and
(b) question any entertainment industry representative, entertainment industry hirer, or employee of a representative or hirer, as to any matter concerning the possible unlawful conduct.
(3) An authorised officer may, at any time—
(a) require an entertainment industry representative or entertainment industry hirer to produce for the authorised officer’s examination, at such time and place as the officer may reasonably specify, any specified records required to be kept under this Act (and retain any such record for such period as may be necessary in order to take copies of or extracts from it), and
(b) require an entertainment industry representative or entertainment industry hirer to deliver to the authorised officer, within such time and to such place as the officer may reasonably specify, any specified information concerning possible unlawful conduct, and
(c) make such other examinations and inquiries as the authorised officer thinks necessary to ascertain whether the requirements of this Act or the regulations are being or have been contravened.
(4) A requirement of an authorised officer under this section may be made personally or by notice in writing served by post.
(5) An authorised officer who enters premises under this section may seize anything that the officer reasonably considers to be evidence of a contravention of this Act or the regulations.
(6) An authorised officer must not exercise the powers conferred by this section in relation to any part of any premises used for residential purposes except—
(a) with the permission of the occupier of the premises, or
(b) under the authority conferred by a search warrant issued under section 28.
28
Search warrants
28 Search warrants
28 Search warrants
(1) An authorised officer may apply to an issuing officer for a search warrant if the applicant has reasonable grounds for believing that a provision of this Act or the regulations has been or is being contravened on premises.
(2) An issuing officer to whom an application for a search warrant is made under this section may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising the authorised officer named in the warrant and any other person named in the warrant—
(a) to enter the premises concerned, and
(b) to search the premises for evidence of a contravention of this Act, the regulations or the code of conduct.
(2A) A police officer may accompany an authorised officer who enters premises and searches for evidence under a search warrant as if the police officer were named in the warrant.
(a) obstruct or hinder an authorised officer in the exercise by the authorised officer of any function under this Division or when executing a search warrant under section 28, or
(b) fail to comply with a requirement of an authorised officer under this Division.
Maximum penalty—50 penalty units.
Part 4
Disclosure of information about contraventions
Part 4 Disclosure of information about contraventions
Part 4 Disclosure of information about contraventions
30
Secretary may keep register
30 Secretary may keep register
30 Secretary may keep register
(1) The Secretary may keep a register (the register) of information about the following—
(a) offences committed against this Act or the regulations,
(b) undertakings given to the Secretary by entertainment industry representatives or entertainment industry hirers,
(c) entertainment industry prohibition orders,
(d) civil penalty orders.
(2) The register may contain any of the following information in relation to a person who has been convicted of an offence under this Act or the regulations, who has given an undertaking or who is the subject of an entertainment industry prohibition order or civil penalty order—
(a) the name of the person,
(b) the name and address of the usual place of business (if any) of the person,
(c) the trade name (if any) under which the person trades,
(d) if the person is a corporation, the names of the chief executive officer and any director of the corporation,
(e) if the person has committed an offence—
(i) a description of the nature and circumstances of the offence, the decision of the court and the penalty imposed, and
(ii) the enforcement agency or other body under the direction of which, or on behalf of whom, the relevant prosecution was conducted,
(f) if the person has given an undertaking, a copy of the undertaking,
(g) if the person is the subject of an entertainment industry prohibition order, a copy of the order,
(h) if the person is the subject of a civil penalty order, a copy of the order.
(3) Information relating to a particular offence is not to be published on the register until—
(a) if no appeal is made, after the last day on which an appeal may be made against the conviction, or
(b) if an appeal is made, after a final order has been made on appeal affirming the conviction.
(4) The register may be kept in such form as the Secretary considers appropriate.
(5) For the purposes of this Part, an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in relation to an offence is taken to be a conviction for the offence.
31
Publication of information on register
31 Publication of information on register
31 Publication of information on register
(1) The register is to be made available for public inspection on the website of the Department of Customer Service.
(2) Information contained in the register may be provided to members of the public in any other manner approved by the Secretary.
(3) Without limiting subsection (2), the Secretary may publish any information contained in the register in the Gazette or in a newspaper circulating in this State.
s 31: Am 2022 No 59, Sch 3.20.
32
Correction of register
32 Correction of register
32 Correction of register
(1) The Secretary must correct any error or omission in information in the register as soon as practicable after becoming aware of the error or omission.
(2) The Secretary may correct any error in, or omission from, the register on the Secretary’s own initiative or on an application by a person under this Part.
33
Removal of information from register
33 Removal of information from register
33 Removal of information from register
(1) The Secretary may remove any information from the register.
(2) The Secretary must remove information about a conviction for a particular offence from the register as soon as practicable after becoming aware that—
(a) the conviction has been quashed or annulled, or
(b) an appeal has been made against the conviction, or
(c) a period of 2 years has elapsed since the end of the period during which an appeal could have been made against the conviction, or if an appeal was made against the conviction, the date on which a final order was made affirming the conviction.
(3) The Secretary must remove information about a civil penalty order being made in relation to a person as soon as practicable after becoming aware that—
(a) an appeal has been lodged against the making of the order, or
(b) the order has been overturned, or
(c) a period of 2 years has elapsed since the end of the period during which an appeal could have been made against the making of the order, or if an appeal was made against the making of the order, the date on which a final order was made affirming the order.
(4) However, in a case where the Secretary removes information from the register because an appeal is made against a conviction for an offence or the making of a civil penalty order, the Secretary may restore information regarding the offence or order to the register if satisfied that any such appeal was unsuccessful.
(5) The Secretary must remove information about an undertaking being given by an entertainment industry representative or entertainment industry hirer as soon as practicable after becoming aware that the undertaking has expired or has otherwise ceased to be in force.
(6) The Secretary must remove information about an entertainment industry prohibition order being made in relation to a person as soon as practicable after becoming aware that the person is no longer subject to a prohibition order.
(7) The Secretary may remove any information about an undertaking, entertainment industry prohibition order, civil penalty order or conviction for an offence from the register if it is appropriate in the circumstances to remove the information from the register.
(8) The Secretary may remove information from the register on the Secretary’s own initiative or on an application by a person under this Part.
Part 5
General
Part 5 General
Part 5 General
34
Disclosure of relevant information
34 Disclosure of relevant information
34 Disclosure of relevant information
(1) A person must not disclose any relevant information obtained in connection with the administration or execution of this Act or the regulations unless the disclosure is made—
(a) with the consent of the person from whom the information was obtained, or
(b) in connection with the administration or execution of this Act, or
(c) for the purposes of any legal proceedings arising out of this Act or the regulations or of any report of any such proceedings, or
(d) to the Children’s Guardian in connection with the engagement of child performers, or
(e) in accordance with a requirement imposed under the Ombudsman Act 1974, or
(f) with any other lawful excuse.
Maximum penalty—40 penalty units.
(2) In this section—
relevant information means—
(a) information concerning the business or financial affairs of the person from whom the information is obtained, or
(b) information concerning any investigation under Division 3 of Part 3.
35
Penalty notices
35 Penalty notices
35 Penalty notices
(1) An authorised officer may issue a penalty notice to a person if it appears to the officer that the person has committed a penalty notice offence.
(2) A penalty notice offence is an offence against this Act or the regulations that is prescribed by the regulations as a penalty notice offence.
(3) The Fines Act 1996 applies to a penalty notice issued under this section.
Note.
The Fines Act 1996 provides that, if a person issued with a penalty notice does not wish to have the matter determined by a court, the person may pay the amount specified in the notice and is not liable to any further proceedings for the alleged offence.
(4) The amount payable under a penalty notice issued under this section is the amount prescribed for the alleged offence by the regulations (not exceeding the maximum amount of penalty that could be imposed for the offence by a court).
(5) This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences.
s 35: Subst 2017 No 22, Sch 3.20.
36
Delegation
36 Delegation
36 Delegation
The Secretary may delegate any function of the Secretary under this Act (other than this power of delegation) to—
(a) any member of staff of the Department of Customer Service, or
(b) any person, or any class of persons, authorised for the purposes of this section by the regulations.
s 36: Am 2022 No 59, Sch 3.20.
37
Personal liability
37 Personal liability
37 Personal liability
(1) A matter or thing done or omitted to be done by the Secretary or any person acting under the direction of the Secretary, if the matter or thing was done or omitted to be done in good faith for the purposes of executing this or any other Act, does not subject the Secretary or a person so acting personally to any action, liability, claim or demand.
(2) However, any such liability attaches instead to the Crown.
38
Liability of directors and managers of corporations
38 Liability of directors and managers of corporations
38 Liability of directors and managers of corporations
(1) If a corporation contravenes, whether by act or omission, a provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have engaged in the same unlawful conduct if the person knowingly authorised or permitted the unlawful conduct.
(2) A person may be proceeded against and convicted under a provision pursuant to this section whether or not the corporation has been proceeded against or convicted under that provision.
(3) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations.
39
Contracting out void
39 Contracting out void
39 Contracting out void
The provisions of this Act and the regulations have effect despite any stipulation to the contrary and no contract or agreement made or entered into before or after the commencement of this section operates to annul, vary or exclude any of the provisions of this Act or the regulations.
40
Service of documents
40 Service of documents
40 Service of documents
(1) A document that is authorised or required by this Act or the regulations to be served on any person may be served by—
(a) in the case of a natural person—
(i) delivering it to the person personally, or
(ii) sending it by post to the address specified by the person for the giving or service of documents or, if no such address is specified, the residential or business address of the person last known to the person giving or serving the document, or
(iii) sending it by facsimile transmission to the facsimile number of the person, or
(b) in the case of a body corporate—
(i) leaving it with a person apparently of or above the age of 16 years at, or by sending it by post to, the head office, a registered office or a principal office of the body corporate or to an address specified by the body corporate for the giving or service of documents, or
(ii) sending it by facsimile transmission to the facsimile number of the body corporate.
(2) Nothing in this section affects the operation of any provision of a law or of the rules of a court authorising a document to be served on a person in any other manner.
41
Service of documents on the Secretary
41 Service of documents on the Secretary
41 Service of documents on the Secretary
(1) A document may be served on the Secretary by leaving it at, or by sending it by post to—
(a) the office of the Department of Customer Service, or
(b) if the Department of Customer Service has more than one office, any one of its offices.
(2) Nothing in subsection (1) affects the operation of any provision of a law or of the rules of a court authorising a document to be served on the Secretary in a manner not provided for by subsection (1).
s 41: Am 2022 No 59, Sch 3.20.
42
Proceedings for offences
42 Proceedings for offences
42 Proceedings for offences
(1) Proceedings for an offence under this Act or the regulations may be taken and prosecuted by any person acting with the authority of the Secretary.
(2) Proceedings for an offence under this Act or the regulations are to be commenced not more than 12 months after the date of the alleged offence.
(3) Proceedings for an offence under this Act or the regulations are to be dealt with summarily before an industrial court or the Local Court.
(4) In a prosecution for an offence under this Act or the regulations, an authority to prosecute, purporting to have been signed by the Secretary, is evidence of such authority without proof of the signature of the Secretary.
43
Civil penalty for breaches
43 Civil penalty for breaches
43 Civil penalty for breaches
(1) An industrial court or the Local Court may order the person to pay a pecuniary penalty not exceeding $10,000 (a civil penalty) if the Court is satisfied that a person has contravened one of the following—
(a) section 6 (2) (b),
(b) section 7 (4),
(c) section 13 (4),
(d) section 16,
(e) section 18,
(f) the code of conduct.
Note.
The Interpretation Act 1987 provides that the expression “contravene” in an Act includes a failure to comply.
(2) Proceedings for a civil penalty may be instituted by any of the following—
(a) an authorised officer or any other person authorised by or under this Act or the regulations to institute proceedings for offences,
(b) if the contravention is alleged to have been committed by a performer representative, a performer who, at the time of the alleged contravention, was a party to an entertainment industry agreement with the representative.
(3) Proceedings for a civil penalty may only be instituted within 6 years after the contravention.
(4) To avoid doubt, the rules of evidence apply to proceedings for a civil penalty.
(5) Evidence given in proceedings for the recovery of money is not admissible in proceedings for a civil penalty.
(6) In any proceedings for a civil penalty, the court may award costs to either party and assess the amount of those costs. Costs cannot be awarded against the prosecutor except in the circumstances in which costs can be awarded against the prosecutor in criminal proceedings.
(7) If the court orders a person to pay a pecuniary penalty, the penalty is payable to the State.
(8) The provisions of any Act relating to the recovery of penalties imposed for an offence apply to the recovery of a pecuniary penalty imposed under a civil penalty order.
(9) If, at the time of making a civil penalty order in respect of a contravention of section 6 (2) (b), 7 (4), 16 or 18, the Court is satisfied that the amount required to be paid under the section concerned remains outstanding, the Court may make such orders with respect to the payment of the outstanding amount as the Court considers appropriate.
s 43: Am 2023 No 7, Sch 3.9.
44
Double jeopardy
44 Double jeopardy
44 Double jeopardy
(1) A person is not liable to be both convicted of an offence under this Act and the subject of a civil penalty in respect of essentially the same act or omission.
(2) Payment of a penalty in respect of an alleged offence under section 35 (Penalty notices) is to be treated as a conviction for the offence for the purposes of this section. The making of an order by the court under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of an offence is also to be treated as a conviction for the offence for the purposes of this section.
45
Regulations
45 Regulations
45 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) In particular, the regulations may make provision for or with respect to—
(a) the form and content documents or records required to be kept by entertainment industry representatives and entertainment industry hirers, and
(b) the fees or other remuneration of entertainment industry representatives, and
(c) the fees chargeable or payable for doing any act or providing any service for the purposes of the regulations, and
(d) the exclusion of a class of persons from the operation of this Act.
(3) A regulation may create an offence punishable by a penalty not exceeding 20 penalty units.
46
Review of Act
46 Review of Act
46 Review of Act
(1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the period of 8 years from the commencement of this Act.
(3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 8 years.
(4) In addition, the Minister is to cause an interim review of the Act to be carried out, as soon as possible after the period of 3 years from the commencement of this Act.
(5) A report on the outcome of the interim review is to be tabled in each House of Parliament within 12 months after the end of the period of 3 years.
47
47
47 (Repealed)
Schedule 1
Code of conduct
Schedule 1 Code of conduct
Schedule 1 Code of conduct
Schedule 2
Savings, transitional and other provisions
Schedule 2 Savings, transitional and other provisions
Schedule 2 Savings, transitional and other provisions
Schedule 3
Schedule 3
Schedule 3 (Repealed)
sch 3: Rep 1987 No 15, sec 30C.
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
Part 1 Preliminary
1 Name of Act
1 Name of Act
1 Name of Act
This Act is the Entertainment Industry Act 2013.
2 Commencement
2 Commencement
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Objects of Act
3 Objects of Act
3 Objects of Act
The objects of this Act are—
(a) to provide effective, fair and consistent regulation of the entertainment industry, and
(b) to provide protections for performers.
4 Definitions
4 Definitions
4 Definitions
(1) In this Act—
authorised officer—see section 26.
business day means a day that is not a Saturday, a Sunday or a public holiday throughout New South Wales.
capped amount—see section 9.
civil penalty order means an order under section 43.
code of conduct means the code of conduct for performer representatives set out in Schedule 1.
director of a corporation means a person who is a director of a corporation within the meaning of the Corporations Act 2001 of the Commonwealth.
entertainment industry agreement means an agreement between a performer and a performer representative for the performer representative to provide one or more of the services referred to in section 5.
entertainment industry hirer means a person who engages or contracts any performer for the purpose of a performance.
entertainment industry managerial agreement—see section 10.
entertainment industry prohibition order—see section 25 (2).
entertainment industry representative means a performer representative or a venue representative.
function includes a power, authority or duty and exercise a function includes perform a duty.
industrial court means an industrial court within the meaning of Part 1 of Chapter 7 of the Industrial Relations Act 1996.
performance means—
Fee regulation is central. Section 9 creates a “capped amount” whose precise percentage is left to the regulations but which is calculated on the total amount payable to the performer for performances in which the representative acted. Section 11(1) prohibits demanding or receiving more than this capped amount unless the contract is an entertainment industry managerial agreement under s 10. Such agreements must be in writing, cover additional reputation or career-development services beyond the s 5 list, fix the fees, and contain an “additional fee acknowledgement” in which the performer expressly accepts that the cap will be exceeded, that a cooling-off period applies, and that the representative has supplied the information required by s 13. A three-business-day cooling-off period is mandated (s 12(2)), during which the performer may terminate by written notice. Upon termination the representative is limited to the capped amount for services already provided, or reasonable costs if no performance has been secured (s 12(4)–(5)). The performer may waive the cooling-off period but only by using the Secretary-approved form (s 12(8)).
Division 2 regulates venue representatives (s 15)—persons who, for financial benefit, act on behalf of a hirer to arrange a performance at a particular venue. They are subject to a simple but strict 14-day disbursement obligation (s 16) and parallel record-keeping duties (s 17).
Division 3 requires entertainment industry hirers (anyone who engages a performer for a performance) to pay within one calendar month or such other period as agreed in writing (s 18). They too must maintain accounting records for five years (s 19).
Part 3 supplies the enforcement machinery. The Secretary may accept enforceable undertakings from representatives or hirers in lieu of immediate proceedings (s 21). Breach of an undertaking allows the industrial court or Local Court to order compliance, payment of financial benefits obtained, compensation, or any other appropriate order (s 22). Where unlawful conduct (defined in s 4 as breach of the code, breach of an undertaking, or contravention of the Act) is suspected, the Secretary may issue a show-cause notice (s 24) and, if unsatisfied, apply to the Supreme Court for an entertainment industry prohibition order (s 25) that can permanently or temporarily bar a person from acting as a performer representative or as a director of a corporation that does so. The Court may also order compensation.
Authorised officers (inspectors under the Industrial Relations Act 1996 or persons specially authorised by the Secretary or Minister) enjoy entry, inspection, seizure and information-gathering powers (ss 27–28), subject to residential-premises safeguards and warrant requirements. Obstruction is an offence (s 29).
Part 4 creates a public register of offences, undertakings, prohibition orders and civil-penalty orders (s 30). The register must be published on the Department of Customer Service website (s 31) and is subject to detailed correction and removal rules that protect spent convictions and spent orders after two years (ss 32–33).
Part 5 contains standard provisions: confidentiality controls (s 34), penalty notices (s 35), delegation (s 36), personal liability protection for the Secretary (s 37), director liability (s 38), prohibition on contracting out (s 39), service rules (ss 40–41), limitation periods (s 42(2)), civil-penalty machinery capped at $10,000 (s 43), double-jeopardy protection (s 44), regulation-making power (s 45) and a statutory review clause (s 46).
Schedule 1 contains the code of conduct. Clause 2 requires performer representatives to exercise reasonable care, diligence and honesty, to act only with authority, to follow client instructions unless unlawful, to manage conflicts of interest by full disclosure, to avoid undisclosed referral fees, to protect confidential information, and to ensure employees comply. Clause 3 reminds representatives of their additional statutory duties under the Act.
The overall effect is a principles-based conduct regime overlaid with prescriptive financial and record-keeping controls, backed by a graduated enforcement ladder that ranges from civil penalties and undertakings through to Supreme Court prohibition orders. It deliberately leaves fee percentages and many procedural details to regulation so that the scheme can be calibrated without further primary legislation.
Who it affects
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.
Key duties and rights
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)).
Penalties and enforcement
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.
How it interacts with other laws
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.
Recent changes and why
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.
Court challenges and controversies
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.
Gotchas
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.
How to comply
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.
(a) a performance that is given in any place or by the use of any medium for the transmission of sound or images, or both, or
(b) a performance that is recorded for the purpose of using the recording in any place or for the transmission of sound or images, or both,
and one of the purposes of which is the financial benefit of an entertainment industry hirer or performer, or both.
performer means any actor, singer, dancer, acrobat, model, musician or other performer of any kind who enters an entertainment industry agreement with a performer representative.
performer representative—see section 5.
Secretary means the Secretary of the Department of Customer Service.
show cause notice means a notice served by the Secretary under section 24.
unlawful conduct means conduct by a performer representative that constitutes—
(a) a breach of the code of conduct, or
(b) a breach of a term of an undertaking given by the performer representative under section 21, or
(c) a contravention of a provision of this Act or the regulations, whether or not any proceedings have been brought in respect of the contravention.
venue representative—see section 15.
(2) In this Act, a reference to an award or industrial agreement is a reference to an award or industrial agreement relating to the employment of performers in the entertainment industry.
(3) Notes included in this Act do not form part of this Act.
s 4: Am 2022 No 59, Sch 3.20.
Part 2 Entertainment industry obligations
Part 2 Entertainment industry obligations
Part 2 Entertainment industry obligations
Division 1 Performer representatives
Division 1 Performer representatives
Division 1 Performer representatives
5 Performer representative
5 Performer representative
5 Performer representative
In this Act, a performer representative means a person who, for financial benefit, provides or agrees to provide one or more of the following services to a performer (whether or not the agreement also provides for other services to be provided)—
(a) seeking or finding work opportunities for the performer,
(b) negotiating terms of an agreement for, and the conditions of, a performance,
(c) finalising arrangements relating to the payment of the performer,
(d) negotiating arrangements relating to the attendance of the performer at a performance,
(e) administering the agreement between the performer and an entertainment industry hirer,
(f) making arrangements for publicity attendances and related publicity responsibilities of the performer,
but does not include a person who does so solely as an employee of any such representative.
6 Trust accounts to be established by performer representatives
6 Trust accounts to be established by performer representatives
6 Trust accounts to be established by performer representatives
(1) A performer representative who receives money on behalf of a performer, from any person, must—
(a) hold the money exclusively for the performer, and
(b) ensure that the requirements of this Act and the regulations under this Act are complied with in relation to the money.
(2) Money received on behalf of a performer by a performer representative that is not paid to the performer immediately (or within such period as may be prescribed by the regulations) must—
(a) be paid to the credit of a general trust account at an authorised deposit-taking institution in New South Wales and be held in accordance with the regulations, and
(b) be disbursed as directed by the performer within 14 days after the performer representative receives the money.
Note.
Section 43 provides that the industrial court or Local Court may order a person to pay a pecuniary penalty not exceeding $10,000 for a contravention of paragraph (b).
(3) A trust account under this section must be kept exclusively for the purpose of money received on behalf of a performer.
(4) A performer representative must keep accounting records in respect of money received on behalf of a performer.
(5) The accounting records must—
(a) disclose at all times the true position concerning the money received, and
(b) be kept at the principal place of business of the performer representative, and
(c) be otherwise kept in accordance with the regulations.
(6) The regulations may make provision for or with respect to the administration of trust accounts under this section, in particular—
(a) the establishment of trust accounts, and
(b) the keeping of documents and records by performer representatives.
(7) A person who, without reasonable excuse, contravenes a provision of this section (other than subsection (2) (b)) or the regulations under this section is guilty of an offence.
Maximum penalty—75 penalty units.
7 Financial statements for money received for performers
7 Financial statements for money received for performers
7 Financial statements for money received for performers
(1) An entertainment industry representative who receives money on behalf of a performer must, as soon as practicable after receiving the money, give a financial statement to the following persons—
(a) the performer,
(b) any other entertainment industry representative who has represented the performer, or carried out activities on behalf of the performer, in connection with the performance for which the money has been received,
(c) the entertainment industry hirer (or other person) by whom or on whose behalf the money has been paid.
(2) A financial statement required to be given to another entertainment industry representative must include—
(a) a statement of the amount of money received on behalf of the performer by the representative giving the statement, and
(b) a statement of the amount of money paid to the performer for the performance.
(3) A financial statement required to be given to a performer must include—
(a) a statement of the amount of money received on behalf of the performer by the representative giving the statement, and
(b) a statement of the amount of money paid to the performer for each performance, including the following particulars—
(i) the method of payment,
(ii) any deduction from the money received by the representative that has been made for the representative’s fee or other remuneration,
(iii) any deduction from the money received by the representative that has been made for expenses incurred by the performer in connection with the performance (such as for travel expenses and equipment hire) and paid for by the representative, and
(c) the date and details of any performance to which the statement relates, and
(d) any business name under which the representative carries on business as a representative, and
(e) if the representative is a corporation under the Corporations Act 2001 of the Commonwealth, the corporation’s ACN within the meaning of that Act, and
(f) if the representative has an ABN for his or her business as a representative, the ABN.
(4) A person must not, without reasonable excuse, fail to provide a financial statement required by this section.
Note.
Section 43 provides that the industrial court or Local Court may order a person to pay a pecuniary penalty not exceeding $10,000 for a contravention of this subsection.
(1) A performer representative who is both a performer representative and venue representative in respect of a performance is, by instrument in writing, to give notice of that fact to both the performer and the entertainment industry hirer.
(2) A person must not, without reasonable excuse, fail to give notice under this section.
Maximum penalty—40 penalty units.
9 Capped amount of performer representative fees
9 Capped amount of performer representative fees
9 Capped amount of performer representative fees
(1) The capped amount for the fees and other remuneration of a performer representative is—
(a) the percentage, prescribed by the regulations, of the total amount payable to the performer for any performances in respect of which the performer representative provided services under an entertainment industry agreement, or
(b) if there are no performances in respect of which the performer representative provided a service under an entertainment industry agreement, the amount determined in accordance with the regulations.
(2) The regulations may make provision for or with respect to the fees and other remuneration referred to in this section and, in particular—
(a) may prescribe different percentages of fees or other remuneration in respect of different kinds of performances or services provided by performer representatives, or other matters, and
(b) may prescribe the amounts (being amounts payable to performers) that are to be excluded when calculating such fees or other remuneration, and
(c) may prescribe the manner in which the capped amount for fees or other remuneration is to be determined under an entertainment industry agreement when there are no performances in respect of which the performer representative provides a service.
10 Entertainment industry managerial agreement
10 Entertainment industry managerial agreement
10 Entertainment industry managerial agreement
(1) An entertainment industry managerial agreement is an entertainment industry agreement—
(a) that is in writing, and
(b) under which the performer representative agrees to provide services in relation to the management of the reputation, career or career development of the performer that are in addition to the services referred to in section 5, and
(c) that fixes the fees payable by the performer in respect of the services specified in the agreement, and
(d) that includes an additional fee acknowledgement.
(2) An additional fee acknowledgement means an acknowledgement by the performer that—
(a) the performer understands that the written agreement will allow the performer representative to demand or receive fees or other remuneration that exceeds the capped amount, and
(b) the performer understands that a cooling-off period applies in respect of the agreement, and
(c) the performer representative has provided the performer with the information required to be provided under section 13.
11 Fees of performer representatives
11 Fees of performer representatives
11 Fees of performer representatives
(1) A performer representative must not demand or receive a fee or other remuneration from a performer under an entertainment industry agreement that exceeds the capped amount, unless the agreement is an entertainment industry managerial agreement and the additional services under the agreement are provided.
Maximum penalty—100 penalty units.
(2) A performer representative must not demand or receive fees or other remuneration from a performer for—
(a) the performer joining or auditioning to join or enter into a contract with the performer representative, or
(b) the retention or on-going representation of the performer by the performer representative.
Maximum penalty—100 penalty units.
(3) A performer representative must not demand or receive a fee or other remuneration from a performer under an entertainment industry agreement for any performance in respect of which the performer representative is also the venue representative (unless the agreement is an entertainment industry managerial agreement and the additional services under the agreement are provided).
Maximum penalty—100 penalty units.
12 Cooling-off period for agreements including additional fee acknowledgment
12 Cooling-off period for agreements including additional fee acknowledgment
12 Cooling-off period for agreements including additional fee acknowledgment
(1) There is to be a cooling-off period for every entertainment industry managerial agreement.
(2) The cooling-off period ends at 5pm on the third business day after the day on which the entertainment industry managerial agreement was entered into.
(3) A performer may terminate an entertainment industry managerial agreement before the end of the cooling-off period, by notice in writing to the performer representative (a notice of termination).
(4) If a performer gives a performer representative a notice of termination before the end of the cooling-off period—
(a) the entertainment industry managerial agreement is taken to be terminated at the time the notice is given (subject to this section), and
(b) the performer representative is entitled to payment, in respect of any services provided in accordance with the agreement before its termination, of fees or other remuneration not exceeding the capped amount.
(5) If at the time of the termination of the agreement the performer is not engaged for a performance, the performer representative is entitled to payment by the performer of the reasonable costs incurred by the representativ
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