Federal Register of Legislation - Australian Government

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Rules/Other as made
Sets out the arrangements for making and dealing with applications for the licence to raise concessional capital under the Film Licensed Investment Company Scheme.
Administered by: Prime Minister and Cabinet
Registered 10 Aug 2005
Tabling HistoryDate
Tabled HR16-Aug-2005
Tabled Senate16-Aug-2005
Date of repeal 05 Oct 2011
Repealed by Revocation of Film Licensed Investment Company (Reporting Requirements) Determination 2005, Film Licensed Investment Company (Decision-making Criteria and Procedures) Determination 2005, Film Licensed Investment Company (Application) Rules 2005

I, CHARLES RODERICK KEMP, Minister for the Arts and Sport, make these Rules under section 8 of the Film Licensed Investment Company Act 2005.

Dated 4 August 2005

ROD KEMP


Contents

Part 1                    Preliminary

                        1     Name of Rules                                                                                    3

                        2     Commencement                                                                                  3

                        3     Object of Rules                                                                                   3

                        4     Definitions                                                                                           3

Part 2                    Applications

                        5     Calling for applications                                                                         4

                        6     Closing date for applications                                                                 4

                        7     Form of applications                                                                            4

                        8     Documents to accompany applications                                                 5

                        9     Number of copies                                                                                5

Part 3                    Selection Advisory Panel

                       10     Selection Advisory Panel                                                                      7

                       11     Confidentiality                                                                                     7

                       12     Functions of Panel                                                                               7

                       13     Powers of Panel                                                                                  7

                       14     Panel procedures — general                                                                 8

                       15     Minister may cancel appointments of members                                      8

                       16     Decisions of Panel                                                                               8

                       17     Duty of confidentiality                                                                           9

                       18     Disclosure of certain interests of members                                             9

Part 4                    Assessment and recommendations

                       19     Comparison and ranking of applications                                               10

                       20     Recommendations to Minister                                                             10

Schedule 1             Documents to be attached to application                                        11

 


Part 1                 Preliminary

  

1              Name of Rules

                These Rules are the Film Licensed Investment Company (Application) Rules 2005.

2              Commencement

                These Rules commence on the day after they are registered.

3              Object of Rules

                The object of these Rules is to explain the arrangements for making and dealing with applications for the licence to raise concessional capital under the scheme set out in Part 2 of the Film Licensed Investment Company Act 2005, including:

                (a)    the method of calling for applications; and

               (b)    the closing date for a round of applications; and

                (c)    the form of the application and the documentation that must accompany an application; and

               (d)    the establishing of a Selection Advisory Panel to advise the Minister in respect of the applications including the membership of the panel and tenure of members; and

                (e)    the rules governing the operation of the Selection Advisory Panel; and

                (f)    other matters relevant to the application process under the scheme.

4              Definitions

                In these Rules, unless the contrary intention appears:

Act means the Film Licensed Investment Company Act 2005.

application means an application for the licence made under section 11 of the Act.

licence means the concessional capital licence granted by the Minister under section 14 of the Act.

member means a member of the Panel.

Panel means the Selection Advisory Panel established under section 10.

State includes the Australian Capital Territory and the Northern Territory.

Note 1   concessional capital licence is defined in subsection 6 (1) of the Act.

Note 2   An applicant to which the concessional capital licence is granted becomes the film licensed investment company: this is defined as the FLIC in subsection 6 (1) of the Act.

Part 2                 Applications

  

5              Calling for applications

         (1)   This section applies when the Minister wishes to call for a round of applications from interested persons for the licence under section 10 of the Act.

         (2)   The Secretary must, as soon as practicable, publish advertisements:

                (a)    in at least 1 daily newspaper that circulates generally in all States; and

               (b)    in at least 1 journal (in print or electronic form) that publishes information relating to the Australian film industry; and

                (c)    on an Internet site operated by or for the Department;

stating that the Minister is calling for the applications and explaining how applications may be made.

6              Closing date for applications

         (1)   An application must be received by the Minister not later than 5:00 pm on the date specified in the advertisement.

Note   The application may be in electronic form or in hard copy.

         (2)   The date must be at least 6 weeks later than the day on which the advertisement is first published.

Note   It is not intended that late applications will be considered.

7              Form of applications

         (1)   An application must be in a form:

                (a)    approved by the Secretary; and

               (b)    made available on request from the Department.

Note 1   The application form will be included in comprehensive information available to potential applicants.

Note 2   The licence will be granted to a company: see section 11 of the Act.

         (2)   The application form must include instructions for the following information to be provided by an applicant that is a registered company:

                (a)    the company’s name;

               (b)    the company’s registered address;

                (c)    the full name of each director of the company;

               (d)    the company’s date of registration;

                (e)    the company’s ACN;

                (f)    the company’s paid-up share capital on the date on which the company was registered.

         (3)   The application form must include instructions for the following information to be provided by an applicant that is a company that has not been registered:

                (a)    the company’s name;

               (b)    the company’s address;

                (c)    the full name of each director of the company;

               (d)    a statement that an application has been made for the registration of the company;

                (e)    an estimate of what the company’s paid-up share capital will be on the date on which it is expected to be registered.

Note   The requirements set out in paragraph 13 (a) of the Act would need to be met before the licence could be issued.

         (4)   An applicant may make an application in electronic form.

Note   See subsections 8 (1), 9 (2) and 9 (3).

8              Documents to accompany applications

         (1)   Documents that must accompany an application are set out in Schedule 1.

Note   An applicant that wishes to make an application in electronic form will need to submit all of these documents electronically as part of the application.

         (2)   If an applicant is unable to provide particular information required by the application form when making an application:

                (a)    the applicant must, to the extent that is practicable, explain in writing what the information is likely to be; and

               (b)    the written explanation must accompany the application; and

                (c)    if the written explanation accompanies the application, the application is taken to comply with section 7.

         (3)   If, an applicant is unable to provide a particular document to accompany an application:

                (a)    the applicant must, to the extent that is practicable, explain in writing what the contents of the document are likely to be; and

               (b)    the written explanation must accompany the application; and

                (c)    if the written explanation accompanies the application, the application is taken to comply with subsection (1).

9              Number of copies

         (1)   If an applicant makes an application in a form other than electronic form, the application must include:

                (a)    7 completed application forms; and

               (b)    7 copies of each document that is required to accompany the application under section 8.

Note   These documents will be given to the members of the Selection Advisory Panel.

         (2)   If an applicant makes an application in electronic form, the applicant must give the Minister:

                (a)    7 completed application forms whose content is identical to the electronic form of the application; and

               (b)    7 copies of each document that is required to accompany the application under section 8;

as hard copies not later than 48 hours after the closing date.

Note   These documents will be given to the members of the Selection Advisory Panel.

         (3)   The Minister is not required to consider an application that does not comply with subsection (1) or (2).

Note   An application may be considered if, for example, the incorrect number of copies is provided for a reason beyond the applicant’s control. However, an applicant should not assume that the application will be considered if the copies are not provided.

Part 3                 Selection Advisory Panel

  

10            Selection Advisory Panel

         (1)   The Selection Advisory Panel is established to advise the Minister in respect of applications for the licence.

         (2)   The Panel consists of an officer of the Department who has been nominated in writing by the Secretary, and the following persons appointed in writing by the Minister:

                (a)    2 persons who:

                          (i)    are involved in the film or television industry in Australia; and

                         (ii)    have expertise in development, production or distribution in the industry;

               (b)    2 persons who have expertise in accounting, banking, investment or law.

         (3)   A member’s appointment under paragraph (2) (a) or (b) is for a period, not exceeding 12 months, specified in the instrument of appointment.

         (4)   A member appointed by the Minister may resign by signed instrument given to the Minister.

Note   The remuneration of members is determined by the Remuneration Tribunal.

11            Confidentiality

                A member must, as soon as practicable after being appointed, sign an undertaking to the Minister to comply with sections 17 and 18.

12            Functions of Panel

         (1)   The Panel must:

                (a)    consider applications in accordance with section 19; and

               (b)    make a recommendation to the Minister in accordance with section 20.

         (2)   The Panel must perform its functions as quickly as the proper consideration of a matter allows.

13            Powers of Panel

         (1)   The Panel has power to do everything that is necessary or convenient to be done to perform its functions.

         (2)   As part of performing its functions, the Panel may require an applicant for the licence to give to the Panel, within a stated period, information in addition to the information given in the application that the Panel considers is necessary for proper consideration of the application.

14            Panel procedures — general

         (1)   4 members constitute a quorum.

         (2)   To perform its functions, the Panel must follow procedures that the Panel decides are:

                (a)    fair and reasonable; and

               (b)    consistent with other provisions of these Rules.

         (3)   The Minister may nominate a member as the chair of the Panel.

         (4)   The member who is nominated as chair of the Panel may appoint another member to act as the chair of the Panel.

         (5)   The Panel must hold such meetings as are necessary to discharge its functions.

         (6)   The chair of the Panel (or, if he or she is absent, the acting chair of the Panel) must preside at a meeting of the Panel.

         (7)   The Panel may invite a person to be present at the meeting to advise or inform the Panel.

15            Minister may cancel appointments of members

         (1)   The Minister may, by written notice given to a member, cancel the member’s appointment on the ground that the member:

                (a)    has failed to sign an undertaking under section 11 as soon as practicable after being appointed; or

               (b)    has breached the member’s undertaking in relation to the duty of confidentiality under section 17; or

                (c)    has breached the member’s undertaking in relation to participation, or continued participation, in the performance of the functions of a member while having an interest to which section 18 applies otherwise than with the consent of the Minister; or

               (d)    is otherwise not a fit and proper person to be a member.

         (2)   The cancellation of a member’s appointment takes effect:

                (a)    from the time when the member is given notice of the cancellation; or

               (b)    if the notice specifies a later time — from the later time.

16            Decisions of Panel

         (1)   A member has a single vote on a decision to be made by the Panel.

         (2)   A matter that is to be decided by the Panel must be decided by a majority of votes.

         (3)   If each member agrees in writing to a proposed decision, in circumstances other than holding a meeting of the Panel, the decision is taken to be a valid decision of the Panel.

17            Duty of confidentiality

         (1)   A member must not communicate information that is made known to him or her, in the capacity of a member, if communication of the information is, or is reasonably likely to be, detrimental to:

                (a)    an applicant for the licence or the FLIC; or

               (b)    a director, or member of the senior staff, of an applicant or the FLIC; or

                (c)    a shareholder in an applicant or the FLIC.

         (2)   However, subsection (1) does not apply if the member acts in the performance of the Panel’s functions.

18            Disclosure of certain interests of members

         (1)   If a member has a direct interest, or a pecuniary interest, that could conflict with the proper performance of his or her duties as a member in relation to a matter:

                (a)    the member must disclose the interest in any recommendation resulting from his or her performance of those duties; and

               (b)    the member must not participate, or continue to participate, in performance of those duties unless the member has the Minister’s consent.

         (2)   If:

                (a)    the Minister consents to a member’s participation, or continued participation, in the performance of his or her duties as a member; and

               (b)    the member participates or continues to participate;

the member must disclose the interest in any recommendation resulting from the member’s participation or continuing participation.

Part 4                 Assessment and recommendations

  

19            Comparison and ranking of applications

         (1)   In assessing the applications in a round of applications, the Panel must consider whether each application meets the requirements of:

                (a)    sections 11 and 13 of the Act; and

               (b)    the Film Licensed Investment Company (Decision-making Criteria and Procedures) Determination 2005.

         (2)   If the Panel considers that 1 or more applications meets those requirements, the Panel:

                (a)    must compare the merit of each of those applications; and

               (b)    may rank the applications in order of merit; and

                (c)    must identify the application that meets the requirements to the greatest extent as being first in merit.

20            Recommendations to Minister

         (1)   If the Panel considers that 1 or more applications meets the requirements mentioned in subsection 19 (1), the Panel must recommend in writing to the Minister that the applicant it has ranked first in merit should be granted the licence.

         (2)   If the Panel considers that none of the applications meets those requirements, the Panel must, in writing:

                (a)    advise the Minister of its opinion; and

               (b)    recommend to the Minister whether the Minister should call for a further round of applications for the licence.

         (3)   The recommendation must include the reasons for making the recommendation.


Schedule 1        Documents to be attached to application

(subsection 8 (1))

  

        1       A copy of the constitution of the applicant.

        2       A chart that:

                (a)    sets out the structure of the organisation of the applicant; and

               (b)    names each director and staff member; and

                (c)    identifies the key personnel of the applicant.

        3       A current resumé for each key person named on the chart, describing;

                (a)    his or her relevant experience and qualifications; and

               (b)    his or her nationality; and

                (c)    the responsibilities that he or she would exercise if the licence were granted to the applicant.

        4       At least 1 professional reference for each key person named on the chart.

        5       Information about the experience, qualifications and background of each board member.

        6       The business plan, for the period ending on 30 June 2009, under which the applicant would operate if it became the FLIC, including:

                (a)    the applicant’s immediate objectives and longer term aims; and

               (b)    the number of shares in the applicant that are expected to be issued, and the expected issue price of the shares; and

                (c)    the applicant’s capital-raising strategies, including:

                          (i)    the name of any potential investor in the applicant of whom the applicant is aware; and

                         (ii)    a description of any co-investment opportunities the applicant would seek; and

                         (iii)    an explanation of the applicant’s ability to use capital raised (whether concessional or non-concessional capital) to maximise co-investment opportunities; and

                        (iv)    an estimate of the amount of capital that would be raised; and

                         (v)    a description of the projected returns on investments; and

                        (vi)    a description how the applicant would expect returns to flow to its investment partners; and

               (d)    the criteria that the applicant would use for assessing and selecting productions in which to invest; and

                (e)    the applicant’s risk-management strategy, including an explanation of the action that the applicant would take as the FLIC in the event of a shortfall in capital raising against its capital raising targets; and

                (f)    an explanation of how the applicant would monitor progress of the productions in which it proposes to invest; and

                (g)    for each year to which the business plan relates:

                          (i)    the applicant’s projected operating costs (except those mentioned in subparagraph (iii)) and the appropriate allowable deduction percentage that would allow the applicant to cover administration costs as a proportion of total projected capital; and

Note   The information in subparagraph (i) will help the Minister if the Minister wishes to determine the FLIC’s allowable deduction percentage for section 37 of the Act.

                         (ii)    the amounts of those costs; and

                         (iii)    a description, and the amount, of each fee and other amount payable by the applicant to any director of the applicant; and

                        (iv)    the costs mentioned in subparagraphs (i), (ii) and (iii), expressed as a proportion of the applicant’s fully paid-up capital; and

                         (v)    the amounts that the applicant proposes to invest in development, or marketing and distribution (if any), of productions in which it invests; and

                        (vi)    the amounts mentioned in subparagraph (v), expressed as a proportion of the applicant’s fully paid-up capital; and

                        (vii)    the applicant’s financial statements, including profit and loss projections and balance sheet and cash flow statements; and

                       (viii)    a description of the types of productions in which the applicant proposes to invest, including format, number, nature, budget range and genre; and

                        (ix)    the performance targets for the number of film and television projects in which the applicant proposes to invest, including an assessment of:

                                   (A)     the range of formats and genres of the projects; and

                                   (B)     the potential for the projects to be exploited commercially in Australia and internationally.

Note

1.       All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See www.frli.gov.au.