NATIONAL AGENCY FOR THE PERFORMING ARTS (ESTABLISHMENT AS AN AGENCY) ORDER

(ESTABLISHMENT AS AN AGENCY)

SUBSIDIARY LEGISLATION 595.46

NATIONAL AGENCY FOR THE PERFORMING ARTS

(ESTABLISHMENT AS AN AGENCY) ORDER

30th June, 2023

LEGAL NOTICE 117 of 2023, as amended by Legal Notice 118 of

2023.

The title of this order is National Agency for the

Performing Arts (Establishment as an Agency) Order.

In this order, unless the context otherwise requires

"Act" means, unless otherwise indicated, the Public

Administration Act;

"Agency" means the National Agency for the Performing

Arts established by article 3;

"Board" means the Board of Management as established

by article 4;

"Chairperson" means the Chairperson of the Board

appointed in terms of article 4(2)(a);

"Council" means the Arts Council Malta, the body

corporate established in terms of article 3 of the Arts Council

Malta Act;

"Executive Head" means the Executive Head as provided

for in article 6;

"Executive Team" means the Executive Team as

provided for in article 6(4);

"financial year" means the period of twelve (12) months,

starting 1st January and ending 31st December

Provided that the financial year which

commenced on the appointed date shall terminate on the 31st

December 2024;

"Gazette" means the same as the meaning assigned to it

in article 3 of the Interpretation Act;

"Malta" means the same as the meaning assigned to it by

article 124 of the Constitution of Malta;

"Minister" means the Minister responsible for culture;

(ESTABLISHMENT AS AN AGENCY)

"national choir" means the Malta national choir, the

specialised performing arts initiative undertaken by the Council

in the year 2018, better known as "Kor Malta";

"national dance ensemble" means the Malta national

dance ensemble, the specialised performing arts initiative

undertaken by the Council in the year 2014 and established as

ŻFIN Malta, better known as "Żfin Malta";

"national theatre company" means the Malta national

theatre company, the specialised performing arts initiative

undertaken by the Council in the year 2016 and managed as a

theatrical company, not in terms of the Companies Act, for

cultural and not commercial purposes, better known as "Teatru

Malta";

"Permanent Secretary" means the person, appointed in

terms of article 92 of the Constitution of Malta who is assigned

and acts in the role of Permanent Secretary as described in the

Act within the Ministry responsible for culture;

"Public Cultural Organisations" means the same as the

meaning assigned to it in article 2 of the Arts Council Malta Act;

"sector" means the cultural sector and refers to activities

carried out by individuals, organisations and enterprises that

operate in any of the activities listed in the Arts Council Malta

Act.

(1)

There shall be an Agency, that shall be known as

the National Agency for the Performing Arts, for the primary purposes

of promoting performing arts, provide national platforms for the

performing arts sector in Malta and serve as the organisational and

administrative framework for the Żfin Malta Unit, the Teatru Malta

Unit and the Kor Malta Unit, nurture regular audiences and establish

new ones, and cultivate a sense of artistic culture among the people.

(2)

The Agency shall be a body corporate having a distinct

legal personality and shall be capable, subject to the provisions of this

order, of entering into contracts, of employing personnel, of acquiring,

holding and disposing of any property for the purpose of its functions,

of suing and of being sued, of doing all such things and entering into all

such transactions as are incidental or conducive to the exercise and

performance of its functions under this order, and any other function or

operation of government as may be assigned under law.

(3)

The legal representation of the Agency shall be vested in

the Chairperson

Provided that the Chairperson may, from time to time and

under such terms and conditions and with such powers as he determines

(ESTABLISHMENT AS AN AGENCY)

in writing and presents in a meeting of the Board, and which are

approved by the Board, appoint any one (1) or more of the members of

the Board, or any one (1) or more of the officers or employees of the

Agency, to appear in the name and on behalf of the Agency in any

judicial proceedings or on any act, contract, instrument or other

document whatsoever.

(1)

The Agency shall have a Board of Management,

with the primary role of overseeing the management of the Agency

administratively and artistically.

(2)

The Board shall be composed of the following members

(a)

the Chairperson, who shall be appointed by the

Minister after consultation with the Permanent Secretary;

(b)

the Deputy Chairperson, who shall be appointed

by the Minister after consultation with the Council;

(c)

not less than three (3) and not more than seven (7)

ordinary members, appointed by the Minister,

who shall possess professional qualifications, or technical

expertise, or knowledge or experience in the performing arts

sector, or show that they have skills in matters related to the

performing arts sector, or have skills and competences that by

means of which, they may aid the Board in the fulfilment of its

role

Provided that the Minister shall ensure that the

Board has

(i)

a member who specializes in the art of

dance;

(ii)

a member who specializes in the art of

theatre;

(iii)

a member who specializes in choral music

art; and

(d)

the Secretary, who shall be appointed by the

Minister after consultation with the Chairperson.

(3)

A person shall not be eligible to serve as member of the

Board or shall be disqualified from continuing to serve as member of

the Board

(a)

where such person is convicted of any of the

crimes mentioned in Titles V, VI and IX of Part II of Book First

of the Criminal Code;

(ESTABLISHMENT AS AN AGENCY)

(b)

where such person is subject to a disqualification

under article 320 of the Companies Act;

(c)

where such person is convicted of theft or fraud, or

of knowingly receiving property obtained by theft or fraud or of

money laundering or of bribery, or has otherwise been sentenced

to a term of imprisonment for a term not less than three (3)

months;

(d)

where such person is legally interdicted or

incapacitated;

(e)

where such person is a Judge or Magistrate of the

Courts of Justice;

(f)

where such person is a member of the Cabinet in

terms of article 79 of the Constitution of Malta or a

Parliamentary Secretary appointed in terms of article 88 of the

Constitution of Malta; or

(g)

where such person has a financial or any other

interest in any enterprise or activity which is likely to affect the

discharge of his functions as Board member.

(4)

All members of the Board, regardless of their role, shall

(a)

in the execution of their duties, act with prudence,

diligence, attention and observe the utmost good faith;

(b)

abide by the Code of Ethics for Board members in

the Public Sector issued by the Office of the Prime Minister; and

(c)

sign an understanding outlining his duties as Board

members, including the duty of confidentiality and regulating

conflicts of interest.

(5)

The term of office for the members of the Board shall

expire after a period of three (3) years from appointment

Provided that the term of office of a member of the Board

may also end upon the death or resignation of that member or the

disqualification of that person from continuing to serve as a member.

(1)

The quorum necessary for the operation of the

Board shall be half the members in office together plus one (1)

Provided that a person, with the approval of the

Chairperson, may be invited by any member of the Board or by the

Minister to attend a meeting of the Board as an observer, with the right

and time to speak as may be provided by the member chairing the

meeting

(ESTABLISHMENT AS AN AGENCY)

Provided further that the Executive Head and the

Executive Team shall have the right to request to attend a meeting of

the Board as an observer to make presentations on any matter relating

to the conduct of the Agency's affairs or the performance of the

Agency's functions.

(2)

The Board shall endeavour to meet at a minimum of once

every two (2) calendar months, on such date and at such time set by the

Chairperson after consultation with the other members of the Board

Provided that the Chairperson shall make the necessary

effort and arrangements to enable all the members to attend the

meeting on the set date and time.

(3)

In the absence of the Chairperson, the meetings shall be

chaired by the Deputy Chairperson.

(4)

The Secretary shall also be responsible for taking

minutes of all the procedures of the meetings of the Board, and for

keeping a record within such minutes of all the questions raised, the

correspondences and documents submitted, and any declarations of the

directions taken in the books kept for that purpose.

(5)

When the circumstances so require

(a)

that a vote shall be taken, each member of the

Board shall have an original vote, except for the Secretary who

shall be a non-voting member of the Board;

(b)

that a tie-breaking vote shall be taken, the member

chairing the meeting shall be vested with a casting vote;

(c)

that a member or observer is to be removed during

one (1) or more meetings, the member chairing the meeting

shall have the power to order the removal of such member or

observer;

(d)

that the term of office of a member is to be

suspended temporarily, the member may suspend himself or be

suspended by the Minister

Provided that

(i)

in the case of self-suspension, the member

shall write to the Board and the Minister informing them

of the self-suspension; and

(ii)

in the case of a member being suspended

by the Minister, the Minister shall write to the member

being suspended and to the Board explaining the reasons

for the suspension

(ESTABLISHMENT AS AN AGENCY)

Provided further that the members shall not be

allowed to take a vote ordering the suspension of the term of

office of a member;

(e)

that a member is to be removed from office, the

member may be removed by the Minister

Provided that the Minister shall write to the

member being removed from office and to the Board, explaining

the reasons for the removal

Provided further that the members shall not be

allowed to take a vote ordering the removal of a member from

office.

(6)

The Board shall afford to the Minister facilities for

obtaining any information with regard to the property and activities of

the Agency, and shall furnish the Minister with returns, accounts and

other information with respect to its functions, and afford facilities for

the verification of any information furnished, in such manner and at

such times as the Minister may so require.

(7)

Without prejudice to the provisions of this order, the

Board may regulate its own procedure generally and, in particular,

regarding the holding of meetings of the Board, the notice shall be

given of such meetings, the proceedings in relation to them, the

keeping of minutes, the custody, production and inspection of those

minutes and the opening, keeping, closing and audit of accounts.

(8)

The remuneration paid to members of the Board shall be

in accordance with the applicable directives and guidelines issued by

the Government from time to time.

(1)

The affairs and work of the Agency shall be the

responsibility of and shall be managed by the Executive Head

Provided that, for the purposes of the Act, the Executive

Head is the Chief Executive Officer.

(2)

The Executive Head, shall be responsible in particular,

but not limited to

(a)

the day-to-day running of the Agency;

(b)

the overall organisational supervision, general

operational control of the Agency, and the coordination of work

of the Units of the Agency;

(c)

the implementation of the performance agreement

and the development of strategies necessary for the

implementation of the Agency’s objectives;

(ESTABLISHMENT AS AN AGENCY)

(d)

the collection, and to provide information and the

carrying out of preparatory work for the purpose of reports on

the operation of the Agency;

(e)

the internationalisation, and the development of a

relationship, collaboration and coordination with the Council

and other Public Cultural Organisations, and from the Agency’s

part in the sector;

(f)

the management of the Executive Team.

(3)

The Agency shall be composed of the following Units

(a)

the Administrative Unit, managed by the

Administrative Director, and which shall be responsible, but not

limited to

(i)

the financial supervision, and the business

plan and the budget of the Agency, and the

commercialisation of the operation of the Agency;

(ii)

human resources;

(iii)

the communication of the Agency;

(iv) the administrative support to the Board and

the Executive Team;

(v)

the logistical support to the Units of the

Agencies;

(b)

the Żfin Malta Unit, managed by the Artistic

Director (Dance), and which shall be responsible, but not

limited to

(i)

the artistic program, operation, logistics

and artistic development of the national dance ensemble;

(ii)

the training and educational initiatives

related to the art of dance;

(iii) the coordination with the members of the

national dance ensemble; and

(iv) the management of communication, public

relations, and marketing of the national dance ensemble;

(c)

the Teatru Malta Unit, managed by the Artistic

Director (Theatre), and which shall be responsible, but not

limited to

(i)

the artistic program, operation, logistics

(ESTABLISHMENT AS AN AGENCY)

and artistic development of the national theatre company;

(ii)

the training and educational initiatives

related to the art of theatre;

(iii) the coordination with persons involved in

the national theatre company; and

(iv) the management of communication, public

relations, and marketing of the national theatre company;

(d)

the Kor Malta Unit, managed by the Artistic

Director (Choir), and which shall be responsible, but not limited

to

(i)

the artistic program, operation, logistics and

artistic development of the national choir;

(ii)

the training and educational initiatives

related to choral music art;

(iii) the coordination with the members of the

national choir; and

(iv) the management of communication, public

relations, and marketing of the national choir.

(4)

In the execution of his role, the Executive Head shall be

assisted by the Executive Team

(a)

which shall be managed by the Executive Head,

and shall be composed of the following members

(i)

the Administrative Director;

(ii)

the Artistic Director (Dance);

(iii)

the Artistic Director (Theatre);

(iv)

the Artistic Director (Choir);

(v)

the Secretary, appointed by the Executive

Head from amongst the officers or the employees of the

Agency, who shall be a non-voting member of the

Executive Team, and who shall be responsible for the

taking of minutes of the meetings of the Executive Team;

(b)

which shall meet at a minimum of once every

calendar month (1).

(5)

In the exercise of his power to appoint or re-appoint

persons to the position of Executive Head or to any one (1) of the

(ESTABLISHMENT AS AN AGENCY)

positions referred to in sub-article (4)(a)(i), (ii), (iii) and (iv), the

Minister shall make sure that the chosen person has suitable

qualifications and competences, and may appoint an Evaluation

Committee for Appointments, with the role of managing the selection

process, and evaluating the candidates who have submitted their

names for the vacant position

Provided that the Evaluation Committee for

Appointments shall be composed of persons with skills and

competences related to the management of the Agency, and who are

not members of the Board or under any disqualification set out in the

provisions of sub-articles (3) and (4) of article 4.

(6)

The provisions of sub-articles (3) and (4) of article 4 and

of paragraphs (d) and (e) of sub-article (5) of article 5 shall apply

mutatis mutandis for persons serving in the position of Executive Head

or any of the positions referred to in sub-article (4)(a)(i), (ii), (iii) and

(iv).

(7)

Persons serving in the position of Executive Head or any

one (1) of the positions referred to in sub-article (4)(a)(i), (ii), (iii) and

(iv), shall hold office for a period of four (4) years

Provided that the term of office may also end upon the

death or resignation of that person or the disqualification of that person

from continuing to serve in the position.

(1)

It shall be the function and objective of the

Agency to

(a)

promote performing arts in Malta through, but not

limited to, the performance of these functions, and promote

knowledge, awareness, appreciation and enjoyment of the

performing arts, involve existing audiences and develop new

audiences;

(b)

develop and maintain a national and international

profile in the field of performing arts through the Żfin Malta

Unit, Teatru Malta Unit and Kor Malta Unit;

(c)

bring the art of dance, theatre and choral music

closer to the people and cultivate a sense of artistic culture

among the people;

(d)

publish annually the respective artistic programs

drawn up by its Units, that should include productions of a high

artistic level addressed to different audiences, through, but not

limited to, the commissioning of new work and the creation of

innovative and stimulating productions and co-productions,

while prioritizing the use of the Maltese language and culture,

even in the European context whenever possible;

(ESTABLISHMENT AS AN AGENCY)

(e)

provide what is necessary to make it easier to

attend activities and events of its Units, and increase the

participation and involvement of the audience, and make use of

technology, communication and collaboration for the full

support of the same activities and events;

(f)

choose places in different localities in Malta for

the creations of such productions, and collaborate with and

utilize the theatres or other adequate spaces in the community;

(g)

foster a relationship between the field of

performing arts in Malta and that of other countries, through, but

not limited to, the promotion and availability of its work on an

international level, and the support of the Malta's position as a

hub for performing arts in Europe and the Mediterranean, and as

an international partner in the cultural and creative fields;

(h)

support the strengthening of the various skills and

talents in performing arts, taking into account the cultural

diversity and the local resources of the performing arts in Malta;

(i)

assist and support, by collaborating with the

educational authorities, the teaching of performing arts in

primary, middle and secondary schools, and collaborating with

training institutions for the professional development of

performing arts in Malta;

(j)

organize educational, training and development

initiatives;

(k)

build the performing arts part in the field of

cultural promotion of Malta and in the field of local cultural

tourism;

(l)

contribute and collaborate in the national culture

calendar of arts and culture, which offers a consolidated

program and spurs greater synergies, impact and alignment with

Public Cultural Organizations and private ones;

(m) establish a strong network of affiliations with local

and international cultural organizations, which may also include

partnerships in local, regional and international concerts, events

and festivals;

(n)

determine further recognition of the individual

brands of the Units of the Agency;

(o)

do those things that may be considered ancillary to

the functions provided for in this article.

(2)

For the purpose of carrying out its functions, the Agency

(ESTABLISHMENT AS AN AGENCY)

(a)

may collaborate with Ministries, Departments,

authorities, corporations and agencies of Government, local

councils, regional councils, non-governmental organisations,

Public Cultural Organisations and private ones, and other

persons;

(b)

may enter into agreements, contracts and

obligations with natural as well as legal persons, public entities

and local, national and international organisations

Provided that the Agency, by a resolution of the

Board endorsed by the Executive Team, shall seek the consent

of the Minister before taking part in negotiations leading to and

before taking part in the formation of a company or partnership

or entering into a joint venture.

(1)

From the appointed date, the employees of the

Council and of ŻFIN Malta assigned to work

(a)

with the national dance ensemble;

(b)

with the national theatre company;

(c)

with the national choir,

shall become employees of the Agency under the same terms

and conditions as they exist on the appointed date, and relevant

contracts of employment concluded by the Council, and which

still active and valid on the appointed date, shall remain in force

as if these contracts had been concluded by the Agency.

(2)

All employees of the Agency shall be considered as

employees of the Agency from the appointed date.

(3)

Without prejudice to the provisions of the Constitution of

Malta, and of any other law applicable thereto, and without prejudice

to the other provisions of this order and any applicable directives, the

appointment of employees of the Agency who are necessary for the

proper and effective performance of its functions, shall be made by the

Agency itself, with that remuneration and under those terms and

conditions which may be determined by the Agency.

(4)

(a)

In accordance with the provisions of the Act and

with the approval of the Prime Minister, the Agency may request from

time to time and after consultation with the Minister, that any public

employee shall be detailed for duty with the Agency in such capacity

and with effect from such date as may be specifically requested,

agreed or approved.

(b)

During the time within which a public officer is

detailed for duty with the Agency, while he is under the

(ESTABLISHMENT AS AN AGENCY)

administrative direction and control of the Agency, he shall

remain and retain all the rights and obligations of a public

officer, and for the purposes of any law relating to pensions for

service with the Government, service with the Agency shall be

regarded as service with the Government

Provided that in assessing the pensionable

emoluments of such officer for the purposes of any law relating

to government service pensions, no account shall be taken of

any allowances, bonuses or gratuities paid to such officer by the

Agency in excess of what he is entitled to as a public officer

Provided further that, during the time within which

he is so detailed to perform duties with the Agency, his terms

and conditions of service shall not be less favourable than those

which are attached to his appointment with the Government

during the period aforesaid, and such terms and conditions shall

not be deemed to be less favourable because they are not in all

respects identical or superior to those enjoyed by the officer

concerned at the date of such detailing, if in the opinion of the

Prime Minister such terms and conditions, taken as a whole,

offer substantially equivalent or greater benefits.

(c)

The Agency shall follow the applicable directives,

and shall use the salary scale and grading structure adopted by

the Council

Provided that no position shall be classified in a

grade higher than Grade 3 of the service with the Government or

any other grade that the Minister responsible for finance may

from time to time by notice in the Gazette establish.

Rights and obligations arising from service contracts

entered into by the Government or the Council or ŻFIN Malta prior to

the entry into force of this order for the purposes and objectives

through which this order is being listed as a function of the Agency, and

which are still active and valid on the appointed date, shall, from the

appointed date, be assigned to the Agency and shall be considered to

have been entered into by the Agency.

(1)

The Agency shall be regulated by the provisions of

the Public Finance Management Act, as provided for in article 31 of the

(2)

For the performance of its functions, the Agency shall

receive from the Government, from the Consolidated Fund, those

amounts that may from time to time be authorized for allocation to

properly perform its functions or for specific works that shall be

continued or that shall be otherwise executed by the Agency.

(ESTABLISHMENT AS AN AGENCY)

(3)

Subject to the provision in sub-article (2), the Agency

shall also apply its income, including that from the commercialisation

of its operation, for the proper performance of its functions.

(4)

Subject to any decision which the Minister may from

time to time make after consultation with the Minister responsible for

finance, any excess of income over expenditure shall be applied by the

Agency to the formation of reserve funds which shall be used for the

objectives of the Agency

Provided that the Minister and the Minister responsible

for finance may, in writing, order the Agency

(a)

to transfer to the Government that excess on

income; or

(b)

to apply such excess revenue in such manner or

for such purpose as may be specified.

(5)

Any funds of the Agency which are not immediately

required to meet the expenditure, may be invested in such manner as

may from time to time be approved by the Minister.

(6)

The Agency, in the performance of its functions, may

impose fees, rates and other charges as may be published or agreed

upon with third parties.

(7)

The Executive Head and the Administrative Director

shall be responsible for administrating the Agency within the financial

parameters of the Agency.

(8)

(a)

The Agency shall prepare an annual report where

it shall render an account of its operation, activities, and financial

situation in respect of each financial year.

(b)

In its annual report, the Agency shall provide

(i)

an overview of the Agency’s operation

during that financial year, including reference to the

implementation of the incorporated functions and the

Agency’s corporate governance; and

(ii)

a financial statement and the report of the

auditor or auditors, appointed by half of the members of

the Board plus one (1), containing a statement

(aa)

on the financial position;

(bb)

on the financial performance;

(cc)

on the changes in net assets or

equity;

(ESTABLISHMENT AS AN AGENCY)

(dd)

on the cash flow;

(ee) of the comparison between the

estimates prepared for the financial year under

examination and the actual expenditure of the

financial year under examination, and between the

actual expenditure of the financial year under

examination and the actual expenditure of the

previous year;

(ff) containing the opinion of the auditor

or auditors on the procurement management,

financial position and performance of the Agency;

(gg) containing notes, including a

summary of significant accounting policies and

other explanatory notes

Provided that the contract of service

with the appointed auditor or auditors shall be

concluded within one (1) month from the end of

the financial year and the auditor or auditors shall

be bound to conclude their work and provide the

Agency with the report within five (5) months

from the date of conclusion of the contract of

service.

(c)

The Agency shall, within five (5) working days of

receipt of the audit report from the auditor or auditors, transmit

and present the annual report to the Minister and the Permanent

Secretary.

(d)

The Minister shall, within five (5) working days

after the receipt of the annual report of the Agency, lay the

annual report on the Table of the House, or if at any time during

that period the House is not in session, within one (1) week from

the beginning of the next following session.