Federal Register of Legislation - Australian Government

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Determinations/Other as made
Sets out requirements for monitoring compliance with the Film Licensed Investment Company Act 2005 and evaluating 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Repealed by Revocation of Film Licensed Investment Company (Reporting Requirements) Determination 2005, Film Licensed Investment Company (Decision-making Criteria and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 this Determination under subsection 35 (1) of the Film Licensed Investment Company Act 2005.

Dated 9 August 2005

ROD KEMP


Contents

                        1     Name of Determination                                                                         2

                        2     Commencement                                                                                  2

                        3     Object of Determination                                                                        2

                        4     Definitions                                                                                           2

                        5     Reports — general                                                                               2

                        6     Reports — investment in provisionally certified films                                3

                        7     Access to records                                                                               4

Schedule 1             Material to be included in, or accompany, a report                          5

Part 1                      First report                                                                                          5

Part 2                      Second report                                                                                     6

Part 3                      Third report                                                                                         6

Part 4                      Fourth report                                                                                       7

Part 5                      Fifth report                                                                                          8

Part 6                      Sixth report                                                                                         9

Part 7                      Seventh report                                                                                   10

Part 8                      Additional material for all reports                                                         11

 


  

  

1              Name of Determination

                This Determination is the Film Licensed Investment Company (Reporting Requirements) Determination 2005.

2              Commencement

                This Determination commences on the day after it is registered.

3              Object of Determination

                The object of this Determination is to set out requirements for:

                (a)    monitoring compliance with the Film Licensed Investment Company Act 2005; and

               (b)    evaluating the scheme set out in Part 2 of that Act.

4              Definitions

                In this Determination, unless the contrary intention appears:

Act means the Film Licensed Investment Company Act 2005.

financial year means:

                (a)    the period:

                          (i)    starting on the day when a company is granted the concessional capital licence under section 14 of the Act; and

                         (ii)    ending at the end of the following 30 June; and

               (b)    each subsequent period starting on 1 July in a year and ending at the end of the following 30 June.

qualifying Australian film has the same meaning as in Division 10BA of the Income Tax Assessment Act 1936.

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.

5              Reports — general

         (1)   The FLIC must give the Minister the reports described in the table:

                (a)    for the period mentioned for the report; and

               (b)    by the time mentioned for the report.

 

Item

Report

Period of report

Report due by end of

 

 

From

To end of

 

1

First report

(annual report)

Date of grant of the concessional capital licence

30 June 2006

30 June 2006

2

Second report

(interim report)

1 July 2006

31 December 2006

11 February 2007

3

Third report

(annual report)

1 July 2006

30 June 2007

31 August 2007

4

Fourth report

(interim report)

1 July 2007

31 December 2007

11 February 2008

5

Fifth report

(annual report)

1 July 2007

30 June 2008

31 August 2008

6

Sixth report

(interim report)

1 July 2008

31 December 2008

11 February 2009

7

Seventh report

(annual report)

1 July 2008

30 June 2009

31 August 2009

         (2)   The report must include or be accompanied by the information set out in Schedule 1.

6              Reports — investment in provisionally certified films

         (1)   If:

                (a)    the Minister revokes the licence under section 32 of the Act; and

               (b)    section 34 of the Act applies to the FLIC;

the FLIC must, within 6 months of the date of the revocation of the licence, give a report to the Minister explaining whether the concessional capital to which section 34 relates has been invested in provisionally certified films.

Note   Under section 34 of the Act, if the Minister revokes the licence, but does not decide to remove the concessional status of the shares in the FLIC, the FLIC must ensure that concessional capital is invested in provisionally certified films within 6 months from the day on which the revocation of the licence took effect.

Under subsection 35 (3) of the Act, the FLIC may be required to give a report to the Minister, within 6 months of the date of the revocation of the licence, for the purpose of monitoring compliance with section 34.

         (2)   If the concessional capital has been invested in provisionally certified films, the report must include evidence of the investment.

         (3)   If some or all of the concessional capital has not been invested in provisionally certified films, the report must include an explanation of why the concessional capital has not been invested.

7              Access to records

         (1)   The FLIC must keep:

                (a)    a copy of all of its accounting and other financial records; and

               (b)    a copy of any document or supporting material that relates to explaining, or providing evidence about, a business transaction by the FLIC (including, but not limited to, the capital information set out in Part 8 of Schedule 1).

         (2)   The FLIC must give the Minister access to a record, document or material mentioned in subsection (1) if the Minister asks for access for the purpose of:

                (a)    monitoring compliance with the Act; or

               (b)    evaluating the scheme set out in Part 2 of the Act.


Schedule 1        Material to be included in, or accompany, a report

(subsection 5 (2))

Part 1          First report

(section 5, table, item 1)

    101       Information about the FLIC’s progress towards meeting the $5 million capital raising requirement set out in paragraph 22 (a) and subparagraph 23 (c) (i) of the Act.

    102       A copy of the FLIC’s annual financial report, prepared in accordance with Part 2M.3 of the Corporations Act 2001.

    103       A copy of the FLIC’s audited annual financial report.

    104       A report of the FLIC’s operations, and progress against the FLIC’s business plan, including a report of progress against the FLIC’s capital raising strategy.

    105       Any other document relating to the financial year that the Corporations Act 2001 requires:

                (a)    to be laid before the FLIC’s annual general meeting; or

               (b)    to be sent to members.

    106       The additional material mentioned in Part 8.

    107       Notification of shares that are on-sold or traded during the period.

    108       If a later date applies under the Corporations Act 2001 for the provision of a report or document mentioned in items 102 to 105, the FLIC must:

                (a)    inform the Minister in the FLIC’s report of the date by which the reports are due under the Corporations Act 2001; and

               (b)    provide a draft copy of the report to the Minister when it becomes available; and

                (c)    provide the final report to the Minister at the same time as it is provided to Australian Securities and Investments Commission under the Corporations Act 2001.

    109       If information, a report or document mentioned in items 101 to 107 is not available to be included in the FLIC’s report by the end of 30 June 2006 the FLIC must:

                (a)    give an assessment in the report of the likely content of the information, report or document; and

               (b)    inform the Minister in the FLIC’s report of the likely date, that is reasonable but as soon as practicable after 30 June 2006, by which the content of the information, report or document will be known; and

                (c)    confirm or amend its assessment by the date mentioned in paragraph (b), in the form of an addendum to the report.

Note   For paragraph (b), it is in the FLIC’s interests to identify a likely date that is reasonable but as soon as practicable after 30 June 2006. If the Minister is not given a confirmed or amended assessment as soon as practicable after that date, the Minister may not be able to assess adequately the FLIC’s performance during the first reporting period, and may need to take appropriate action.

Part 2          Second report

(section 5, table, item 2)

    201       Information about the FLIC’s progress towards meeting the $5 million capital raising requirement set out in paragraph 22 (a) and subparagraph 23 (c) (i) of the Act.

Note   The FLIC may have met its capital raising requirement, and reported on that fact, before the second report is required. In that case, the information only needs to confirm what the FLIC has already reported.

    202       A report of operations and progress against the FLIC’s business plan during the period, including a report of progress against the FLIC’s capital raising strategy.

    203       A copy of the FLIC’s financial statements for the period, including a profit and loss statement, balance sheet, statement of cash flows, notes and other material forming the company’s financial statements.

    204       Notification of shares that are on-sold or traded during the period.

    205       The additional material mentioned in Part 8.

Part 3          Third report

(section 5, table, item 3)

    301       A copy of the FLIC’s annual financial report, prepared in accordance with Part 2M.3 of the Corporations Act 2001.

    302       A copy of the FLIC’s audited annual financial report.

    303       A report of operations and progress against the FLIC’s business plan during the period, including a report of progress against the FLIC’s capital raising strategy.

    304       Any other document relating to the financial year that the Corporations Act 2001 requires:

                (a)    to be laid before the FLIC’s annual general meeting; or

               (b)    to be sent to members.

    305       Notification of shares that are on-sold or traded during the period.

    306       The additional material mentioned in Part 8.

    307       If a later date applies under the Corporations Act 2001 for the provision of a report or document mentioned in items 301 to 304, the FLIC must:

                (a)    inform the Minister in the FLIC’s report of the date by which the reports are due under the Corporations Act 2001; and

               (b)    provide a draft copy of the report to the Minister when it becomes available; and

                (c)    provide the final report to the Minister at the same time as it is provided to Australian Securities and Investments Commission under the Corporations Act 2001.

Part 4          Fourth report

(section 5, table, item 4)

    401       A report of operations and progress against the FLIC’s business plan during the period, including a report of progress against the FLIC’s capital raising strategy.

    402       A copy of the FLIC’s financial statements for the period, including a profit and loss statement, balance sheet, statement of cash flows, notes and other material forming the company’s financial statements.

    403       The additional material mentioned in Part 8.

    404       Information about the performance of the FLIC’s production slate, in accordance with the following requirements:

                (a)    the information must be provided both in relation to individual projects and in relation to all productions;

               (b)    if available, performance reporting information should include, but need not be limited to:

                          (i)    the local and international sales of productions; and

                         (ii)    if applicable, each geographical area in relation to which the rights to exploit a production have been acquired;

Note   The geographical areas mentioned in subparagraph (b) (ii) are often described as territories.

                (c)    the information must relate, as relevant, to:

                          (i)    the box office performance of feature films; and

                         (ii)    the number of viewers on free-to-air television; and

                         (iii)    screenings on pay television and other media;

               (d)    the information must include:

                          (i)    the levels of recoupment on the FLIC’s productions; and

                         (ii)    information about whether returns have been made to investors; and

                         (iii)    if returns have been made to investors — the amount of the returns;

                (e)    if any of the information is not available by the time the report is required, the FLIC must provide an explanation as to why it is not available.

Note   The information in item 404 is intended to assist the Minister to evaluate the scheme under paragraph 35 (1) (b) of the Act.

Part 5          Fifth report

(section 5, table, item 5)

    501       A copy of the FLIC’s annual financial report, prepared in accordance with Part 2M.3 of the Corporations Act 2001.

    502       A copy of the FLIC’s audited annual financial report.

    503       A report of operations and progress against the FLIC’s business plan during the period, including a report of progress against the FLIC’s capital raising strategy.

    504       Any other document relating to the financial year that the Corporations Act 2001 requires:

                (a)    to be laid before the FLIC’s annual general meeting; or

               (b)    to be sent to members.

    505       The additional material mentioned in Part 8.

    506       Information about the performance of the FLIC’s production slate, in accordance with the following requirements:

                (a)    the information must be provided both in relation to individual projects and in relation to all productions;

               (b)    if available, performance reporting information should include, but need not be limited to:

                          (i)    the local and international sales of productions; and

                         (ii)    if applicable, each geographical area in relation to which the rights to exploit a production have been acquired;

Note   The geographical areas mentioned in subparagraph (b) (ii) are often described as territories.

                (c)    the information must relate, as relevant, to:

                          (i)    the box office performance of feature films; and

                         (ii)    the number of viewers on free-to-air television; and

                         (iii)    screenings on pay television and other media;

               (d)    the information must include:

                          (i)    the levels of recoupment on the FLIC’s productions; and

                         (ii)    information about whether returns have been made to investors; and

                         (iii)    if returns have been made to investors — the amount of the returns;

                (e)    if any of the information is not available by the time the report is required, the FLIC must provide an explanation as to why it is not available.

Note   The information in item 506 is intended to assist the Minister to evaluate the scheme under paragraph 35 (1) (b) of the Act.

    507       Evidence that the FLIC has invested all capital funds raised by 30 June 2008.

Note   See paragraphs 23 (a) and (b) of the Act.

    508       If a later date applies under the Corporations Act 2001 for the provision of a report or document mentioned in items 501 to 504, the FLIC must:

                (a)    inform the Minister in the FLIC’s report of the date by which the reports are due under the Corporations Act 2001; and

               (b)    provide a draft copy of the report to the Minister when it becomes available; and

                (c)    provide the final report to the Minister at the same time as it is provided to Australian Securities and Investments Commission under the Corporations Act 2001.

Part 6          Sixth report

(section 5, table, item 6)

    601       A report of operations and progress against the FLIC’s business plan during the period.

    602       A copy of the FLIC’s financial statements for the period, including a profit and loss statement, balance sheet, statement of cash flows, notes and other material forming the company’s financial statements.

    603       The additional material mentioned in Part 8.

    604       Information about the performance of the FLIC’s production slate, in accordance with the following requirements:

                (a)    the information must be provided both in relation to individual projects and in relation to all productions;

               (b)    if available, performance reporting information should include, but need not be limited to:

                          (i)    the local and international sales of productions; and

                         (ii)    if applicable, each geographical area in relation to which the rights to exploit a production have been acquired;

Note   The geographical areas mentioned in subparagraph (b) (ii) are often described as territories.

                (c)    the information must relate, as relevant, to:

                          (i)    the box office performance of feature films; and

                         (ii)    the number of viewers on free-to-air television; and

                         (iii)    screenings on pay television and other media;

               (d)    the information must include:

                          (i)    the levels of recoupment on the FLIC’s productions; and

                         (ii)    information about whether returns have been made to investors; and

                         (iii)    if returns have been made to investors — the amount of the returns;

                (e)    if any of the information is not available by the time the report is required, the FLIC must provide an explanation as to why it is not available.

Note   The information in item 604 is intended to assist the Minister to evaluate the scheme under paragraph 35 (1) (b) of the Act.

Part 7          Seventh report

(section 5, table, item 7)

    701       A copy of the FLIC’s annual financial report, prepared in accordance with Part 2M.3 of the Corporations Act 2001.

    702       A copy of the FLIC’s audited annual financial report.

    703       A report of the FLIC’s operations, and progress against the FLIC’s business plan.

    704       Any other document relating to the financial year that the Corporations Act 2001 requires:

                (a)    to be laid before the FLIC’s annual general meeting; or

               (b)    to be sent to members.

    705       The additional material mentioned in Part 8.

    706       Information about the performance of the FLIC’s production slate, in accordance with the following requirements:

                (a)    the information must be provided both in relation to individual projects and in relation to all productions;

               (b)    if available, performance reporting information should include, but need not be limited to:

                          (i)    the local and international sales of productions; and

                         (ii)    if applicable, each geographical area in relation to which the rights to exploit a production have been acquired;

Note   The geographical areas mentioned in subparagraph (b) (ii) are often described as territories.

                (c)    the information must relate, as relevant, to:

                          (i)    the box office performance of feature films; and

                         (ii)    the number of viewers on free-to-air television; and

                         (iii)    screenings on pay television and other media;

               (d)    the information must include:

                          (i)    the levels of recoupment on the FLIC’s productions; and

                         (ii)    information about whether returns have been made to investors; and

                         (iii)    if returns have been made to investors — the amount of the returns;

                (e)    if any of the information is not available by the time the report is required, the FLIC must provide an explanation as to why it is not available.

Note   The information in item 706 is intended to assist the Minister to evaluate the scheme under paragraph 35 (1) (b) of the Act.

    707       Evidence that all of the FLIC’s projects have received a final certificate under section 124ZAC of the Income Tax Assessment Act 1936.

Note   See paragraph 25 (b) of the Act.

    708       If a later date applies under the Corporations Act 2001 for the provision of a report or document mentioned in items 701 to 704, the FLIC must:

                (a)    inform the Minister in the FLIC’s report of the date by which the reports are due under the Corporations Act 2001; and

               (b)    provide a draft copy of the report to the Minister when it becomes available; and

                (c)    provide the final report to the Minister at the same time as it is provided to Australian Securities and Investments Commission under the Corporations Act 2001.

Part 8          Additional material for all reports

Structure and business activity

    801       A copy of any amendments to the FLIC’s constitution.

    802       A copy of any report, application or document filed during the period with the Australian Securities and Investments Commission that relates to the operation of the FLIC.

    803       A copy of any report provided to investors or potential investors during the period, including any prospectus or other publication concerning the financial affairs of the FLIC.

    804       Information on any changes to the management structure and operations of the FLIC during the period.

    805       Information relating to the FLIC’s commencing or ceasing of any significant business activity during the period.

    806       Information relating to the acquisition or disposal of a significant shareholding in the FLIC during the period.

Shareholder information

    807       The number of shares issued by the FLIC during the period.

    808       The name, address and nationality of each shareholder to whom shares were issued during the period.

    809       The amount paid by each of those shareholders for those shares.

Investment information

    810       The time frame for development and production for each project.

    811       The expected completion date for each project.

    812       A progress report on the development and production of each project, including expenditure reports and records of any fees paid, charged or received in relation to each project.

    813       A progress report on marketing and distribution activity, including investment in the activity (if any), in relation to each project.

    814       Sales and exhibition of each project, including a copy of the sales and distribution agreements for the project.

    815       A production audit report, in relation to each completed project, being an audited statement made by the producer of the film that includes:

                (a)    details of all income and expenditure relating to the project (including, but not limited to, all amounts payable and receivable concerning the production of the film); and

               (b)    details of the assets, liabilities and investments of the producer and any investors relating to the production of the film; and

                (c)    a statement that:

                          (i)    all debtors in relation to the film have been made good; and

                         (ii)    all creditors in relation to the film have been satisfied; and

               (d)    details of any amounts paid or payable under the completion guarantee for the project; and

                (e)    for any overspend in relation to the budget for the project:

                          (i)    the amount of the overspend; and

                         (ii)    the name of any person who made a payment to cover the overspend, or on whose behalf a payment was made, and the amount paid by that person; and

                (f)    for any underspend in relation to the budget for the project:

                          (i)    the amount of the underspend; and

                         (ii)    the name of any person who received a share of the amount of the underspend, or for whose benefit a share of the amount was paid, and the amount paid to or for the benefit of that person.

    816       A copy of the production investment agreement for each project for which investment has been made.

    817       A copy of each provisional certificate issued under Division 10BA of Part III of the Income Tax Assessment Act 1936.

Capital information

    818       An explanation of how capital was raised.

    819       A statement of the capital expended on qualifying Australian films.

    820       A statement of the percentage spent on administration as a proportion of shareholders’ funds.

    821       If there has been a return of capital during the period:

                (a)    details of each return; and

               (b)    a statement of the amount returned in each case.