An Act relating to the National Gallery of Australia
Part I—Preliminary
1 Short title
This Act may be cited as the National Gallery Act 1975.
2 Commencement
This Act shall come into operation on a date to be fixed by Proclamation.
3 Interpretation
(1) In this Act, unless the contrary intention appears:
Chair means the Chair of the Council.
Council means the Council of the National Gallery of Australia.
Deputy Chair means the Deputy Chair of the Council.
Director means the Director of the National Gallery of Australia.
Finance Minister means the Minister administering the Public Governance, Performance and Accountability Act 2013.
Fund means the National Gallery of Australia Fund established by subsection 36(1).
Gallery means the National Gallery of Australia established by this Act.
member means a member of the Council.
national collection means all works of art that are owned by the Gallery from time to time other than a work of art that is acquired, commissioned or produced by the Gallery for the purposes of sale.
part‑time member means a member of the Council appointed to be a part‑time member.
(2) A reference in this Act to any land or building owned by, or under the control of, the Gallery includes a reference to a part of any such land or a part of any such building, as the case may be.
Part II—The National Gallery of Australia
4 Establishment of National Gallery of Australia
(1) The National Gallery of Australia is established.
(2) The Gallery:
(a) is a body corporate;
(b) shall have a seal;
(c) may acquire, hold and dispose of real and personal property; and
(d) may sue or be sued in its corporate name.
Note: The Public Governance, Performance and Accountability Act 2013 applies to the Gallery. That Act deals with matters relating to corporate Commonwealth entities, including reporting and the use and management of public resources.
(3) The seal of the Gallery shall be kept in such custody as the Council directs and shall not be used except as authorized by the Council.
(4) All courts, judges and persons acting judicially shall take judicial notice of the imprint of the seal of the Gallery affixed to a document and shall presume that it was duly affixed.
5 National collection to be housed in Australian Capital Territory
(1) The national collection shall be housed in the Australian Capital Territory.
(2) Nothing in this section prevents the exhibition outside the Australian Capital Territory or outside Australia of works of art from the national collection.
6 Functions of Gallery
(1) The functions of the Gallery are:
(a) to develop and maintain a national collection of works of art; and
(b) to exhibit, or to make available for exhibition by others, works of art from the national collection or works of art that are otherwise in the possession of the Gallery.
(2) The Gallery shall use every endeavour to make the most advantageous use of the national collection in the national interest.
7 Powers of Gallery
(1) Subject to this Act, the Gallery has power to do all things necessary or convenient to be done for or in connexion with the performance of its functions.
(2) Without limiting the generality of subsection (1), the powers of the Gallery referred to in that subsection include power:
(a) to purchase or take on hire, to commission or produce, or to accept as a gift or on deposit or loan, works of art;
(b) to make available (whether by hire, loan, sale or otherwise) works of art;
(c) to accept gifts, devises, bequests or assignments made to the Gallery, whether on trust or otherwise, and whether unconditionally or subject to a condition and, if a gift, devise, bequest or assignment is accepted by the Gallery on trust or subject to a condition, to act as trustee or to comply with the condition, as the case may be;
(d) to collect, and make available (whether by hire, loan, sale or otherwise), information on the visual arts;
(da) to make available (whether for reward or otherwise) services in relation to the visual arts (whether with or without the supply of goods), including the carrying out of investigations and the giving of advice;
(e) to make available (whether by hire, loan, sale or otherwise) reproductions of works of art;
(f) to arrange for, or to assist in, research into matters pertaining to the visual arts;
(g) to erect buildings;
(ga) to grant (whether for reward or otherwise) rights to use any land or building owned by, or under the control of, the Gallery;
(gb) to fix charges for entry onto any land, or into any building, owned by, or under the control of the Gallery, being charges that:
(i) are in addition to the charges fixed by the regulations; and
(ii) relate to special exhibitions or other special events;
(h) to purchase or take on hire, or to accept as a gift or on deposit or loan, and to dispose of or otherwise deal with, furnishings, equipment and other goods;
(j) to act on behalf of the Commonwealth or of an authority of the Commonwealth in the administration of a trust relating to works of art or related matters.
(3) The Gallery shall not dispose of a work of art in the national collection except in accordance with sections 9, 10 or 11.
(4) Notwithstanding anything contained in this Act, but subject to section 36 of this Act and subsection 59(1) of the Public Governance, Performance and Accountability Act 2013 (which deals with investment by corporate Commonwealth entities), any money or other property held by the Gallery upon trust or accepted by the Gallery subject to a condition shall not be dealt with except in accordance with the obligations of the Gallery as trustee of the trust or as the person who has accepted the money or other property subject to the condition, as the case may be.
8 Land and works of art for Gallery
(1) The Minister may make available to the Gallery for the purposes of the Gallery such land owned by the Commonwealth as is specified by the Minister by notice in the Gazette and any building, structure or other improvements on that land.
(2) Where the Council so requests, the Minister may:
(a) transfer or cause to be transferred to the Gallery, for inclusion in the national collection, works of art owned by the Commonwealth; and
(b) transfer or cause to be transferred to the Gallery such other goods or equipment owned by the Commonwealth as he or she considers would be of use to the Gallery.
9 Disposal of works of art from national collection
(1) Subject to subsection (4), where the Council is satisfied that a work of art in the national collection:
(a) is unfit for the national collection; or
(b) is not required as part of the national collection;
the Council may resolve that the work of art be disposed of by sale, gift or destruction.
(4) The Council shall not resolve that a work of art be disposed of by way of destruction unless the Council is satisfied that the work has no saleable value.
(5) Where:
(a) the Council has resolved, in accordance with this section, that a work of art be disposed of; and
(b) the Minister has approved of that disposal;
the Gallery may dispose of that work of art accordingly.
10 Exchange of works of art
(1) Where the Council is satisfied that the exchange of a work of art in the national collection for another work of art would be advantageous to the collection, the Gallery may make that exchange.
(2) An agreement for an exchange under subsection (1) may include an undertaking by one party to pay an amount to the other party in recognition of the difference in value between the works of art to be exchanged.
11 Disposal of property left with Gallery
(1) Where:
(a) the Council wishes to apply this section to any property (including a work of art) that is not the property of the Gallery but has been submitted to the Gallery with a view to its acceptance by the Gallery or for any other purpose;
(b) the property has remained in the possession or custody of the Gallery for a period of not less than 1 year after its submission to the Gallery;
(c) in a case to which subsection (2) applies:
(i) the Council has complied with the requirements of that subsection; and
(ii) the period specified in the notice under that subsection or, if such notices were sent to more than 1 person, the period specified in the notice last sent, has expired; and
(d) the property is not the subject of a claim lodged with the Gallery by the person who submitted the property to the Gallery or by any other person who has an interest in the property;
this section applies in relation to that property.
(2) Where the Gallery has a record of the name and address of a person who has an interest in property referred to in paragraph (1)(a) or of the person who submitted that property to the Gallery, the Council shall send by pre‑paid registered post to that person or to each of those persons, addressed to him or her at the relevant address, a notice informing him or her that, after the expiration of 3 months from the date of the notice, the Council intends, unless the person who submitted the property to the Gallery or any other person who has an interest in the property lodges with the Gallery a claim with respect to the property, to deal with the property under this section.
(3) The Council may, in respect of property in relation to which this section applies, cause a notice, in accordance with subsection (4), relating to the property to be published twice, with an interval of at least 7 days between the dates of the publications, in such daily newspapers as will ensure its publication in every State and internal Territory.
(4) A notice under subsection (3) shall sufficiently identify the property to which it relates and shall state that, at the expiration of 3 months from the date of publication of the notice, the Council intends to deal with the property under this section unless, before that time, the person who submitted the property to the Gallery or any other person who has an interest in the property has lodged with the Gallery a claim with respect to the property.
(5) Where:
(a) the period of 3 months specified in a notice under subsection (3) that has been published for the second time has expired; and
(b) the property to which the notice relates has not ceased to be property in relation to which this section applies;
the Council may:
(c) if the property is a work of art and the Council wishes to acquire it for the national collection—request the Minister to approve its acquisition for the national collection; or
(d) in any other case—request the Minister to approve its disposal in accordance with this section.
(6) Before approving of the acquisition of a work of art in accordance with a request under paragraph (5)(c), the Minister shall obtain a valuation of the work of art from an independent expert.
(7) Where a work of art the subject of a request under paragraph (5)(c) has not ceased to be property in relation to which this section applies, the Minister may, by notice published in the Gazette, approve the acquisition of the work of art for the national collection.
(8) Upon the publication in the Gazette of a notice under subsection (7), the work of art to which the notice applies is, by force of this subsection:
(a) vested in the Commonwealth; and
(b) freed and discharged from all interests, trusts, restrictions, obligations, contracts, licences and charges;
to the intent that the legal estate in the work of art and all rights and powers incident to that legal estate are vested in the Commonwealth.
(9) The Minister shall, on behalf of the Commonwealth, transfer to the Gallery for inclusion in the national collection a work of art referred to in subsection (8).
(10) Where property the subject of a request under paragraph (5)(d) has not ceased to be property in relation to which this section applies, the Minister may approve the disposal of the property and advise the Council accordingly.
(11) Where the Minister has advised the Council of his or her approval of the disposal of property and the property has not ceased to be property in relation to which this section applies, the Gallery may:
(a) cause the property to be sold by public auction; or
(b) if the Council determines that the property is valueless or that for some other reason it is not practicable to sell the property by public auction—cause the property to be disposed of otherwise than by sale or to be destroyed.
(12) For the purposes of a sale or other disposal of goods under subsection (11), the Gallery shall be deemed to be the absolute owner of the property.
(13) The interest of every person in a work of art to which a notice published under subsection (7) relates is, on the date of acquisition of that work of art, converted into a right to compensation against the Commonwealth.
(14) Parts VII and IX of the Lands Acquisition Act 1989 apply in relation to a right to compensation referred to in subsection (13) as if:
(a) that right were an entitlement to compensation under section 52 of that Act;
(b) a reference in those Parts to an interest in land were a reference to the legal estate in the work of art to which that right relates; and
(c) a reference in those Parts to the Minister were a reference to the Minister administering this Act.
(15) Where a person satisfies the Council that he or she had an interest in property immediately before the property was sold by virtue of subsection (11), the Gallery shall pay to the person such amount as it considers appropriate having regard to the interest that person had in the property but not exceeding the amount by which the amount of the proceeds of the sale exceeded the amount of any expenses incurred by the Gallery in connexion with the storage and sale of the property.
(16) No action, other than an action under the Lands Acquisition Act 1989 as applied by subsection (14), lies against any person by reason of any act or thing done in accordance with this section.
Part III—The Council
12 Council
(1) The affairs of the Gallery shall be conducted by a Council to be known as the Council of the National Gallery of Australia.
(2) All acts and things done in the name of, or on behalf of, the Gallery by the Council or with the authority of the Council shall be deemed to have been done by the Gallery.
13 Membership of Council
(1) The Council shall consist of not more than 11 members, namely:
(a) the Chair;
(b) the Director; and
(c) not more than 9 other members.
(2) The members, other than the Director, shall be appointed by the Governor‑General having regard to their knowledge and experience with respect to the visual arts or any other area of knowledge relevant to the affairs of the Gallery.
(3) A member, other than the Director, shall be appointed to be a part‑time member and holds office for such term, not exceeding 3 years, as is fixed by the Governor‑General in the instrument of his or her appointment.
(4) A part‑time member is eligible for re‑appointment.
(6) The exercise or performance of the powers or functions of the Council is not affected by reason only of there being a vacancy in the office of a member.
14 Deputy Chair
(1) There shall be a Deputy Chair of the Council who shall be elected by the members from among the part‑time members.
(2) A member elected as Deputy Chair holds office as Deputy Chair for the period fixed by the Council at the time of his or her election but that period shall not extend beyond the expiration of the term for which he or she is holding office as a member at that time.
(3) The Deputy Chair may resign his or her office by writing under his or her hand delivered to the Chair.
(4) The Deputy Chair is eligible for re‑election.
15 Deputies of members
(1) A part‑time member may, with the approval of the Minister, appoint a person, other than a member, to be his or her deputy.
(2) A member may revoke the appointment of a person as his or her deputy, but the revocation is not effective until the member has given notice of it, in writing, to the Minister.
(3) The deputy of a member is entitled, in the event of the absence of the member from a meeting of the Council, to attend that meeting and, when so attending, shall be deemed to be a member.
16 Remuneration and allowances of members etc.
(1) A part‑time member, the deputy of a member or a member of a committee constituted under section 21 who is not a member of the Council shall be paid such remuneration as is determined by the Remuneration Tribunal, but, if no determination of that remuneration by the Tribunal is in operation, he or she shall be paid such remuneration as is prescribed.
(2) A person referred to in subsection (1) shall be paid such allowances as are prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
17 Termination of appointment
(1) The Governor‑General may terminate the appointment of a part‑time member by reason of misbehaviour or physical or mental incapacity.
(2) If a part‑time member:
(a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit; or
(b) is absent, except on leave granted by the Council, from 3 consecutive meetings of the Council;
the Governor‑General shall terminate his or her appointment.
Note: The appointment of a part‑time member may also be terminated under section 30 of the Public Governance, Performance and Accountability Act 2013 (which deals with terminating the appointment of an accountable authority, or a member of an accountable authority, for contravening general duties of officials).
18 Resignation
A part‑time member may resign his or her office by writing under his or her hand delivered to the Governor‑General.
20 Meetings of Council
(1) The Chair or, if for any reason the Chair is unable to act, the Deputy Chair:
(a) shall convene such meetings of the Council as he or she considers necessary for the efficient conduct of its business; and
(b) shall, on receipt of a written request signed by not less than 4 members, convene a meeting of the Council.
(2) The Minister may at any time convene a meeting of the Council.
(3) The Chair shall preside at all meetings of the Council at which he or she is present.
(4) In the event of the absence of the Chair from a meeting of the Council, the Deputy Chair shall preside at that meeting.
(5) In the event of the absence of both the Chair and the Deputy Chair from a meeting of the Council, the members present shall elect one of their number to preside at that meeting.
(6) At a meeting of the Council, 7 members constitute a quorum.
(7) Subject to subsection (8), all questions arising at a meeting of the Council shall be decided by a majority of the votes of the members present and voting, including the member presiding.
(8) In the event of an equality of votes on a resolution proposed at a meeting of the Council, the resolution shall be taken not to be passed but, if the same resolution is proposed at the first meeting of the Council held after the date of that first‑mentioned meeting and there is again an equality of votes, the member presiding has a casting vote on the resolution.
21 Committees of Council
(1) Subject to this section, the Council may constitute such committees as it thinks necessary for the purposes of this Act.
(2) A committee may be constituted wholly by members of the Council or partly by members of the Council and partly by other persons.
22 Delegation
(1) The Council may, by resolution, either generally or as otherwise provided by the resolution, delegate to the Chair, the Director or any other member of the Council or to a member of the staff of the Gallery, all or any of its powers under this Act or the regulations, other than this power of delegation.
(2) A power so delegated, when exercised by the delegate, shall, for the purposes of this Act and the regulations, be deemed to have been exercised by the Council.
(3) A delegation of a power under this section:
(a) may be revoked by resolution of the Council (whether or not constituted by the persons constituting the Council at the time the power was delegated);
(b) does not prevent the exercise of the power by the Council; and
(c) continues in force notwithstanding a change in the membership of the Council.
(4) Section 34A of the Acts Interpretation Act 1901 applies in relation to a delegation under this section as if the Council were a person.
(5) A certificate signed by the Chair stating any matter with respect to a delegation of a power under this section is prima facie evidence of that matter.
(6) A document purporting to be a certificate mentioned in subsection (5) shall, unless the contrary is established, be deemed to be such a certificate and to have been duly given.
Part IV—The Director
24 Director
(1) There shall be a Director of the National Gallery of Australia, who shall be appointed by the Governor‑General.
(2) The Director is the executive officer of the Council.
26 Terms and conditions of appointment etc.
(1) The Director holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Governor‑General.
(2) The Director holds office for such period, not exceeding 7 years, as is specified in the instrument of his or her appointment, but is eligible for re‑appointment.
27 Remuneration and allowances
(1) The Director shall be paid such remuneration as is determined by the Remuneration Tribunal, but, if no determination of that remuneration by the Tribunal is in operation, he or she shall be paid such remuneration as is prescribed.
(2) The Director shall be paid such allowances as are prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
28 Leave of absence
(1) The Director has such recreation leave entitlements as are determined by the Remuneration Tribunal.
(2) The Minister may grant the Director leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines.
29 Termination of appointment
(1) The Governor‑General may terminate the appointment of the Director by reason of misbehaviour or physical or mental incapacity.
(2) If the Director:
(a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit; or
(aa) fails, without reasonable excuse, to comply with subsection (3); or
(ab) is absent, except on leave granted by the Council, from 3 consecutive meetings of the Council; or
(b) is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(c) engages in paid employment outside the duties of his or her office without the approval of the Minister;
the Governor‑General shall terminate his or her appointment.
Note: The appointment of the Director may also be terminated under section 30 of the Public Governance, Performance and Accountability Act 2013 (which deals with terminating the appointment of an accountable authority, or a member of an accountable authority, for contravening general duties of officials).
(3) The Director shall give written notice to the Minister of all direct or indirect pecuniary interests that the Director has or acquires in any business or in any body corporate carrying on any business.
(4) Subsection (3) applies in addition to section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests).
30 Resignation
The Director may resign his or her office by writing under his or her hand delivered to the Governor‑General.
31 Acting Director
The Minister may appoint a person to act in the office of Director:
(a) during a vacancy in the office; or
(b) during any period, or during all periods, when the person holding the office is absent from duty or from Australia or is, for any other reason, unable to perform the functions of the office.
Note: For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
Part V—Staff
33 Staff
Subject to any direction of the Minister:
(a) the Gallery may employ such persons as are necessary for the purposes of this Act; and
(b) the terms and conditions of employment (other than in respect of matters provided for by this Act) of persons so employed shall be as determined by the Council.
Part VI—Finance
34 Moneys payable to Gallery
(1) There are payable to the Gallery such moneys as are appropriated, from time to time, by the Parliament for the purposes of this Act.
(2) The Finance Minister may give directions as to the amounts in which, and the times at which, moneys referred to in subsection (1) are to be paid to the Gallery.
36 National Gallery of Australia Fund
(1) There is established by this subsection a fund, to be known as the National Gallery of Australia Fund.
(2) Income received from the investment of money standing to the credit of the Fund forms part of the Fund.
(3) There shall be paid into the Fund:
(a) gifts and bequests of money accepted by the Gallery after the commencement of this section otherwise than on trust;
(b) money received by the Gallery after that commencement from the disposal of gifts, devises, bequests and assignments of property accepted by the Gallery, whether before or after that commencement, otherwise than on trust; and
(c) so much of the money held by the Gallery in bank accounts otherwise than on trust immediately before that commencement as the Minister, by notice in writing given to the Gallery within 21 days after that commencement, determines.
37 Application of moneys
(1) The moneys of the Gallery (including money standing to the credit of the Fund) shall be applied only:
(a) in payment or discharge of the costs or expenses of the Gallery under this Act; and
(b) in payment of any remuneration and allowances payable under this Act.
(2) Subsection (1) does not prevent investment, under section 59 of the Public Governance, Performance and Accountability Act 2013, of money that is not immediately required for the purposes of the Gallery.
38 Power to purchase and dispose of assets
The Gallery shall not, without the approval of the Minister:
(a) acquire any work of art for a consideration exceeding in amount or value $450,000 or, if a higher amount is prescribed, that higher amount;
(b) acquire any property, right or privilege, other than a work of art, for a consideration exceeding in amount or value $250,000 or, if a higher amount is prescribed, that higher amount;
(c) dispose of any property, right or privilege, other than a work of art, where the amount or value of the consideration for the disposal or the value of the property, right or privilege exceeds $250,000 or, if a higher amount is prescribed, that higher amount;
(d) enter into a contract for the construction of a building being a contract under which the Gallery is to pay an amount exceeding $100,000 or, if a higher amount is prescribed, that higher amount; or
(e) enter into a lease of land for a period exceeding 10 years.
40 Annual report
The annual report prepared by the Council and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 for a period must include particulars of any disposals of works of art under section 9 of this Act during the period.
41 Exemption from taxation
The Gallery is not subject to taxation under a law of the Commonwealth or of a State or Territory.
Part VII—Miscellaneous
45 Supply of liquor on premises of Gallery
(1) The regulations may make provision for and in relation to the sale, supply, disposal, possession or control of liquor on premises in the Australian Capital Territory owned by or under the control of the Gallery.
(2) The law of the Australian Capital Territory relating to the sale, supply and disposal of liquor does not apply with respect to premises in respect of which regulations are in force under subsection (1).
(3) In this section, liquor means wine, spirits, ale, beer, porter, cider, perry or any liquid containing alcohol ordinarily used or fit for use as a beverage.
46 Regulations
The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters that by this Act are required or permitted to be prescribed, or are necessary or convenient to be prescribed for carrying out or giving effect to this Act, and in particular:
(a) for regulating the conduct of persons on any land or building owned by, or under the control of, the Gallery;
(b) for fixing charges for entry onto any land, or into any building, owned by, or under the control of, the Gallery; and
(c) for prescribing penalties not exceeding a fine of 5 penalty units for offences against the regulations.
