US Free Trade Agreement Implementation Act 2004
No. 120, 2004
An Act to implement the Australia‑United States Free Trade
Agreement, and for other purposes
[Assented to 16
August 2004]
The Parliament of Australia enacts:
1 Short
title
This Act may be cited as the US
Free Trade Agreement Implementation Act 2004.
2
Commencement
(1) Each provision of this Act specified in
column 1 of the table commences, or is taken to have commenced, in accordance
with column 2 of the table. Any other statement in column 2 has effect
according to its terms.
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Commencement
information
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Column 1
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Column 2
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Column 3
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Provision(s)
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Commencement
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Date/Details
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1. Sections 1 to 3 and anything in this Act not
elsewhere covered by this table
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The day on which this Act receives the Royal Assent.
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16 August 2004
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2. Schedule 1
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The later of:
(a) 1 January 2005; and
(b) the day on which the Australia‑United States Free
Trade Agreement, done at Washington DC on 18 May 2004, comes into force for Australia.
However, the provision(s) do not commence at all if the
event mentioned in paragraph (b) does not occur.
The Minister for Trade must announce by notice in the Gazette
the day on which the Agreement comes into force for Australia.
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1 January 2005 (see Gazette 2004, GN51)
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3. Schedule 2, Parts 1 and 2
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At the same time as the provisions covered by table
item 2.
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1 January 2005
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4. Schedule 2, Part 3
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The later of:
(a) immediately after the commencement of Parts 1 and 2
of Schedule 2 to this Act; and
(b) immediately after the commencement of item 1 of
Schedule 1 to the Agricultural and Veterinary Chemicals Legislation
Amendment (Name Change) Act 2004.
However, the provision(s) do not commence at all unless
both of the events mentioned in paragraphs (a) and (b) occur.
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1 January 2005 (paragraph (a) applies)
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5. Schedules 3 to 5
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At the same time as the provisions covered by table
item 2.
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1 January 2005
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6. Schedule 6
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The day on which this Act receives the Royal Assent.
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16 August 2004
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7. Schedule 7
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At the same time as the provisions covered by table
item 2.
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1 January 2005
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8. Schedule 8
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The day on which this Act receives the Royal Assent.
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16 August 2004
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9. Schedule 9, Part 1
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1 January 2005.
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1 January 2005
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10. Schedule 9, Part 2
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The day on which the WIPO Performances and Phonograms
Treaty, done at Geneva on 26 December 1996, comes into force for Australia.
The Minister administering the Copyright Act 1968 must
announce by notice in the Gazette the day on which the Treaty comes
into force for Australia.
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26 July 2007
(see Gazette 2007, GN22)
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11. Schedule 9, Parts 3 and 4
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The earlier of the following times:
(a) the time at which the provisions covered by table
item 2 commence;
(b) the time at which the provisions covered by table
item 10 commence.
(Parts 3 and 4 of Schedule 9 still commence even
if one of the times mentioned in paragraph (a) or (b) does not occur.)
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1 January 2005 (paragraph (a) applies)
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12. Schedule 9, items 107 to 112
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1 January 2005.
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1 January 2005
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13. Schedule 9, item 113
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The day on which this Act receives the Royal Assent.
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16 August 2004
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14. Schedule 9, items 114 to 119
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1 January 2005.
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1 January 2005
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15. Schedule 9, item 120
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At the same time as the provisions covered by table
item 2. However, if that time is the same time as the time at which the
provisions covered by table item 12 commence, then item 120
commences immediately after those provisions commence.
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1 January 2005
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16. Schedule 9, item 121
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At the same time as the provisions covered by table
item 2.
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1 January 2005
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17. Schedule 9, item 122
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At the same time as the provisions covered by table
item 2. However, if that time is the same time as the time at which the
provisions covered by table item 12 commence, then item 122
commences immediately after those provisions commence.
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1 January 2005
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18. Schedule 9, items 123 to 166
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At the same time as the provisions covered by table
item 2.
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1 January 2005
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19. Schedule 9, item 167
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The day on which this Act receives the Royal Assent.
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16 August 2004
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20. Schedule 9, items 168 to 192
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At the same time as the provisions covered by table
item 2.
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1 January 2005
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21. Schedule 10
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The day on which this Act receives the Royal Assent.
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16 August 2004
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Note: This table relates only to the provisions of
this Act as originally passed by the Parliament and assented to. It will not be
expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional
information that is not part of this Act. Information in this column may be
added to or edited in any published version of this Act.
3
Schedule(s)
Each Act that is specified in a Schedule
to this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
Schedule 1—Customs amendments
Part 1—US originating goods
Customs Act 1901
1 After Division 1B of Part VIII
Insert:
Division 1C—US originating goods
Subdivision A—Preliminary
153Y
Simplified outline
The following is a simplified outline of
this Division:
• This Division defines US
originating goods. Preferential rates of customs duty under the Customs
Tariff Act 1995 apply to US originating goods that are imported into Australia.
• Subdivision B provides that
goods are US originating goods if they are wholly obtained or
produced entirely in the US.
• Subdivision C provides that
goods are US originating goods if they are produced entirely in
the US, or in the US and Australia, exclusively from originating materials.
• Subdivision D sets out when
goods (except clothing and textiles) that are produced entirely in the US, or
in the US and Australia, from non‑originating materials only, or from non‑originating
materials and originating materials, are US originating goods.
• Subdivision E sets out when
goods that are clothing or textiles that are produced entirely in the US, or in
the US and Australia, from non‑originating materials only, or from non‑originating
materials and originating materials, are US originating goods.
• Subdivision F sets out when
accessories, spare parts or tools (imported with other goods) are US
originating goods.
• Subdivision G deals with
how the packaging materials or containers in which goods are packaged affects
whether the goods are US originating goods.
• Subdivision H deals with
how the consignment of goods affects whether the goods are US originating
goods.
153YA
Interpretation
Definitions
(1) In this Division:
Agreement means the Australia‑United
States Free Trade Agreement done at Washington DC on 18 May 2004, as amended from time to time.
Note: In 2004 the text of the Agreement was
accessible on the Internet through the web site of the Department of Foreign
Affairs and Trade.
Australian originating goods means goods that
are Australian originating goods under a law of the US that implements the
Agreement.
Convention means the International Convention
on the Harmonized Commodity Description and Coding System done at Brussels on 14 June 1983.
Note: The text of the Convention is set out in
Australian Treaty Series 1988 No. 30. In 2004 this was available in the
Australian Treaties Library of the Department of Foreign Affairs and Trade,
accessible on the Internet through that Department’s world‑wide web site.
customs value, in relation to goods, has the
meaning given by section 159.
fuel has its ordinary meaning.
Harmonized System means the Harmonized
Commodity Description and Coding System (as in force from time to time) that is
established by or under the Convention.
Harmonized US Tariff Schedule means the
Harmonized Tariff Schedule of the United States (as in force from time to
time).
indirect materials means:
(a) goods used in the production,
testing or inspection of other goods, but that are not physically incorporated
in the other goods; or
(b) goods used in the operation or
maintenance of buildings or equipment associated with the production of other
goods;
including:
(c) fuel; and
(d) tools, dies and moulds; and
(e) lubricants, greases, compounding
materials and other similar goods; and
(f) gloves, glasses, footwear, clothing,
safety equipment and supplies for any of these things; and
(g) catalysts and solvents.
Interpretation Rules means the General Rules
for the Interpretation of the Harmonized System provided for by the Convention.
national of the US has the meaning given by
Annex 1‑A to Chapter 1 of the Agreement.
non‑originating materials means goods
that are not originating materials.
originating materials means:
(a) goods that are used in the
production of other goods and that are US originating goods; or
(b) goods that are used in the
production of other goods and that are Australian originating goods; or
(c) indirect materials.
Example: This example illustrates goods produced from
originating materials and non‑originating materials.
Pork sausages are produced in the US from
US cereals, Hungarian frozen pork meat and Brazilian spices.
The US cereals are originating materials
since they are goods used in the production of other goods (the sausages) and
they are US originating goods under Subdivision B.
The Hungarian frozen pork meat and
Brazilian spices are non‑originating materials since they are produced in
countries other than the US and Australia.
produce means grow, raise, mine, harvest,
fish, trap, hunt, manufacture, process, assemble or disassemble. Producer
and production have corresponding meanings.
recovered goods means goods in the form of
individual parts that:
(a) have resulted from the complete
disassembly of goods which have passed their useful life or which are no longer
useable due to defects; and
(b) have been cleaned, inspected or
tested (as necessary) to bring them into reliable working condition.
remanufactured goods means goods that:
(a) are produced entirely in the US;
and
(b) are classified to:
(i) Chapter 84, 85 or
87 (other than heading 8418, 8516 or 8701 to 8706), or to heading 9026, 9031 or
9032 of Chapter 90, of the Harmonized System; or
(ii) any other tariff
classification prescribed by the regulations; and
(c) are entirely or partially
comprised of recovered goods; and
(d) have a similar useful life, and
meet the same performance standards, as new goods:
(i) that are so
classified; and
(ii) that are not comprised
of any recovered goods; and
(e) have a producer’s warranty similar
to such new goods.
Schedule 1 tariff table means the table
in Schedule 1 to the Customs (Australia‑United States Free Trade
Agreement) Regulations 2004.
Schedule 2 tariff table means the table
in Schedule 2 to the Customs (Australia‑United States Free Trade
Agreement) Regulations 2004.
US means the United States of America.
used means used or consumed in the production
of goods.
US originating goods means goods that, under
this Division, are US originating goods.
Value of goods
(2) The value of goods for the
purposes of this Division is to be worked out in accordance with the
regulations. The regulations may prescribe different valuation rules for
different kinds of goods.
Tariff classifications
(3) In specifying tariff classifications for
the purposes of this Division, the regulations may refer to the following:
(a) the Harmonized System;
(b) the Harmonized US Tariff Schedule.
(4) Subsection 4(3A) does not apply for the
purposes of this Division.
Regulations
(5) For the purposes of this Division, the
regulations may apply, adopt or incorporate any matter contained in any
instrument or other writing as in force or existing from time to time.
Subdivision B—Goods wholly obtained or produced entirely in the US
153YB
Goods wholly obtained or produced entirely in the US
(1) Goods are US originating goods
if they are wholly obtained or produced entirely in the US.
(2) Goods are wholly obtained or
produced entirely in the US if, and only if, the goods
are:
(a) minerals extracted in the US; or
(b) plants grown in the US, or in the US
and Australia, or products obtained from such plants; or
(c) live animals born and raised in
the US, or in the US and Australia, or products obtained from such animals; or
(d) goods obtained from hunting,
trapping, fishing or aquaculture conducted in the US; or
(e) fish, shellfish or other marine
life taken from the sea by ships registered or recorded in the US and flying
the flag of the US; or
(f) goods produced exclusively from
goods referred to in paragraph (e) on board factory ships registered or
recorded in the US and flying the flag of the US; or
(g) goods taken from the seabed, or
beneath the seabed, outside the territorial waters of the US by the US or a
national of the US, but only if the US has the right to exploit that part of
the seabed; or
(h) goods taken from outer space by
the US or a national of the US; or
(i) waste and scrap that:
(i) has been derived from
production operations in the US; or
(ii) has been derived from
used goods that are collected in the US and that are fit only for the recovery
of raw materials; or
(j) recovered goods derived in the US
and used in the US in the production of remanufactured goods; or
(k) goods produced entirely in the US
exclusively from goods referred to in paragraphs (a) to (i) or from their
derivatives.
Subdivision C—Goods produced entirely in the US or in the US and Australia exclusively from
originating materials
153YC
Goods produced entirely in the US or in the US and Australia exclusively
from originating materials
Goods are US originating goods
if they are produced entirely in the US, or entirely in the US and Australia,
exclusively from originating materials.
Subdivision D—Goods (except clothing and textiles) produced entirely in
the US or
in the US and Australia from non‑originating
materials
153YD
Simplified outline
The following is a simplified outline of
this Subdivision:
• This Subdivision sets out
when goods (except clothing and textiles) that are produced entirely in the US,
or in the US and Australia, from non‑originating materials only, or from non‑originating
materials and originating materials, are US originating goods.
• The goods may be US
originating goods under section 153YE (which applies to all goods except
clothing and textiles).
• The goods may also be US
originating goods under section 153YF (which applies only to goods that
are chemicals, plastics or rubber).
153YE
Goods (except clothing and textiles) produced entirely in the US or in the US
and Australia from non‑originating materials
(1) Goods are US originating goods
if:
(a) a tariff classification (the final
classification) that is specified in column 2 of the Schedule 1
tariff table applies to the goods; and
(b) they are produced entirely in the US,
or entirely in the US and Australia, from non‑originating materials only
or from non‑originating materials and originating materials; and
(c) if any of the following 3
requirements apply in relation to the goods—that requirement is satisfied.
First requirement
(2) Subject to subsection (3), the first
requirement applies only if a change in tariff classification is specified in
column 3 of the Schedule 1 tariff table opposite the final classification
for the goods. The first requirement is that:
(a) each of the non‑originating
materials satisfies the transformation test (see subsection (8)); or
(b) the following are satisfied:
(i) the total value of all
the non‑originating materials does not exceed 10% of the customs value of
the goods;
(ii) if one or more of the
non‑originating materials are prescribed for the purposes of this paragraph—each
of those non‑originating materials satisfies the transformation test (see
subsection (8)).
Note 1: Paragraph (2)(b) relates to Article 5.2
(De Minimis) of the Agreement.
Note 2: The value of the non‑originating
materials is to be worked out in accordance with the regulations: see
subsection 153YA(2).
(3) However, the first requirement does not
apply if:
(a) an alternative requirement to the
change in tariff classification is also specified in column 3 of the
Schedule 1 tariff table opposite the final classification for the goods;
and
(b) that alternative requirement is
satisfied.
Second requirement
(4) Subject to subsection (5), the
second requirement applies only if a regional value content requirement is
specified in column 3 of the Schedule 1 tariff table opposite the final
classification for the goods. The second requirement is that the goods satisfy
that regional value content requirement.
(5) However, the second requirement does not
apply if:
(a) an alternative requirement to the
regional value content requirement is also specified in column 3 of the
Schedule 1 tariff table opposite the final classification for the goods;
and
(b) that alternative requirement is
satisfied.
(6) The regulations may prescribe different
regional value content requirements for different kinds of goods.
Third requirement
(7) The third requirement is that the goods
satisfy any other requirement that is specified in, or referred to in, column 3
of the Schedule 1 tariff table opposite the final classification for the
goods.
Transformation test
(8) A non‑originating material
satisfies the transformation test if:
(a) it satisfies the change in tariff
classification that is specified in column 3 of the Schedule 1 tariff
table opposite the final classification for the goods; or
(b) it does not satisfy the change in
tariff classification mentioned in paragraph (a), but it was produced
entirely in the US, or entirely in the US and Australia, from other non‑originating
materials, and each of those materials satisfies the transformation test
(including by one or more applications of this subsection).
Note 1: Paragraph (8)(b) relates to paragraph 2 of
Article 5.3 (Accumulation) of the Agreement.
Note 2: Subsection (8) operates in a recursive
manner: a non‑originating material may satisfy the transformation test in
its own right, or it may satisfy it because each non‑originating material
used to produce it satisfies the transformation test (whether because each of
those materials does so in its own right, or because each non‑originating
material used to produce the material does so), and so on.
153YF
Goods that are chemicals, plastics or rubber
Goods are US originating goods
if:
(a) they are produced entirely in the US,
or entirely in the US and Australia, from non‑originating materials only
or from non‑originating materials and originating materials; and
(b) they are goods that are classified
to any of Chapters 28 to 40 of the Harmonized System; and
(c) a tariff classification (the final
classification) that is specified in column 2 of the Schedule 1
tariff table applies to the goods; and
(d) before the tariff classifications
in column 2 of that table in relation to Chapter 28 or 39 of the
Harmonized System, the regulations specify particular rules in column 3 of that
table; and
(e) those rules apply in relation to
the final classification for the goods; and
(f) the goods satisfy those rules.
Subdivision E—Goods that are clothing or textiles produced entirely in the
US or in
the US and Australia from non‑originating
materials
153YG
Simplified outline
The following is a simplified outline of
this Subdivision:
• This Subdivision sets out
when goods that are clothing or textiles that are produced entirely in the US,
or in the US and Australia, from non‑originating materials only, or from
non‑originating materials and originating materials, are US originating
goods.
• The goods may be US
originating goods under section 153YH (which applies to all clothing and
textiles).
• The goods may also be US
originating goods under section 153YI (which applies only to clothing and
textiles classified to Chapter 62 of the Harmonized System).
153YH
Goods that are clothing or textiles produced entirely in the US or in the US
and Australia from non‑originating materials
(1) Subject to subsection (5), goods are
US originating goods if:
(a) a tariff classification (the final
classification) that is specified in column 2 of the Schedule 2
tariff table applies to the goods; and
(b) they are produced entirely in the US,
or entirely in the US and Australia, from non‑originating materials only
or from non‑originating materials and originating materials; and
(c) if any of the following 2
requirements apply in relation to the goods—that requirement is satisfied.
Note: Subsection (5) sets out a qualification
for goods put up in a set for retail sale.
First requirement
(2) The first requirement applies only if a
change in tariff classification is specified in column 3 of the Schedule 2
tariff table opposite the final classification for the goods. The first
requirement is that:
(a) subject to subsection (3),
each of the non‑originating materials satisfies the transformation test
(see subsection (7)); or
(b) the following are satisfied:
(i) the total weight of
all the non‑originating materials does not exceed 7% of the total weight
of the goods;
(ii) if one or more of the
non‑originating materials are prescribed for the purposes of this
paragraph—each of those non‑originating materials satisfies the
transformation test (see subsection (7)).
Note: Paragraph (2)(b) relates to paragraphs 6
and 7 (De Minimis) of Article 4.2 of the Agreement.
(3) In relation to goods classified to
Chapter 61, 62 or 63 of the Harmonized System, paragraph (2)(a) is to
be applied by applying:
(a) for goods covered by
Chapter 61 of the Harmonized System—Chapter Rule 2 for Chapter 61
that is set out in the Schedule 2 tariff table; and
(b) for goods covered by
Chapter 62 of the Harmonized System—Chapter Rule 3 for Chapter 62
that is set out in the Schedule 2 tariff table; and
(c) for goods covered by
Chapter 63 of the Harmonized System—Chapter Rule 1 for Chapter 63
that is set out in the Schedule 2 tariff table.
Second requirement
(4) The second requirement is that the goods
satisfy any other requirement that is specified in, or referred to in, column 3
of the Schedule 2 tariff table opposite the final classification for the
goods.
Goods put up in a set for retail sale
(5) However, if:
(a) the goods are put up in a set for
retail sale; and
(b) the goods are classified in
accordance with Rule 3 of the Interpretation Rules;
the goods are US originating goods only if:
(c) all of the goods in the set are US
originating goods under this Division; or
(d) the total value of the goods in
the set that are not US originating goods under this Division does not exceed
10% of the customs value of the set of goods.
Note: The value of the goods in the set is to be
worked out in accordance with the regulations: see subsection 153YA(2).
(6) In applying paragraph (5)(c), assume
the goods were not part of a set.
Example: A skirt and a belt are put up in a set for retail
sale. The skirt and the belt have been classified under Rule 3 of the
Interpretation Rules according to the tariff classification applicable to
skirts.
The effect of subsection (6) is that
the origin of the belt must now be determined according to the tariff
classification applicable to belts.
Transformation test
(7) A non‑originating material
satisfies the transformation test if:
(a) it satisfies the change in tariff
classification that is specified in column 3 of the Schedule 2 tariff
table opposite the final classification for the goods; or
(b) it does not satisfy the change in
tariff classification mentioned in paragraph (a), but it was produced
entirely in the US, or entirely in the US and Australia, from other non‑originating
materials, and each of those materials satisfies the transformation test
(including by one or more applications of this subsection).
Note 1: Paragraph (7)(b) relates to paragraph 2 of
Article 5.3 (Accumulation) of the Agreement.
Note 2: Subsection (7) operates in a recursive
manner: a non‑originating material may satisfy the transformation test in
its own right, or it may satisfy it because each non‑originating material
used to produce it satisfies the transformation test (whether because each of
those materials does so in its own right, or because each non‑originating
material used to produce the material does so), and so on.
153YI
Goods that are clothing and textiles classified to Chapter 62 of the
Harmonized System
Goods are US originating goods
if:
(a) they are produced entirely in the US,
or entirely in the US and Australia, from non‑originating materials only
or from non‑originating materials and originating materials; and
(b) they are goods that are classified
to Chapter 62 of the Harmonized System; and
(c) either:
(i) in any case—the goods
satisfy Chapter Rule 2 for Chapter 62 that is set out in the
Schedule 2 tariff table; or
(ii) in the case of goods
that are classified to subheading 6205.20 or 6205.30 of Chapter 62 of the
Harmonized System—the goods satisfy the subheading rule for that subheading
that is set out in the Schedule 2 tariff table.
Subdivision F—Other US originating goods
153YJ
Standard accessories, spare parts and tools
(1) If goods (the underlying goods)
are imported into Australia with standard accessories, standard spare parts or
standard tools, then the accessories, spare parts or tools are US
originating goods if:
(a) the underlying goods are US
originating goods; and
(b) the accessories, spare parts or
tools are not invoiced separately from the underlying goods; and
(c) the quantities and value of the
accessories, spare parts or tools are the usual quantities and value in
relation to the underlying goods.
(2) In working out if the underlying goods
are US originating goods, if the goods must satisfy a regional value content
requirement under Subdivision D, the regulations must require the value of the
accessories, spare parts or tools to be taken into account for the purposes of
that requirement.
Note: The value of the accessories, spare parts or
tools is to be worked out in accordance with the regulations: see subsection
153YA(2).
Subdivision G—Packaging materials and containers
153YK
Packaging materials and containers
(1) If:
(a) goods are packaged for retail sale
in packaging material or a container; and
(b) the packaging material or
container is classified with the goods in accordance with Rule 5 of the
Interpretation Rules;
then the packaging material or container is to be
disregarded for the purposes of this Division (with 1 exception).
(2) The exception is that in working out if
the goods are US originating goods, if the goods must satisfy a regional value
content requirement under Subdivision D, the regulations must require the value
of the packaging material or container to be taken into account for the
purposes of that requirement.
Note: The value of the packaging material or
container is to be worked out in accordance with the regulations: see subsection
153YA(2).
Subdivision H—Consignment
153YL
Consignment
(1) Goods are not US originating goods under
this Division if:
(a) they are transported through a
country or place other than the US or Australia; and
(b) they undergo any process of production
in that country or place (other than unloading, reloading, any operation to
preserve them in good condition or any operation that is necessary for them to
be transported to Australia).
(2) This section applies despite any other
provision of this Division.
Part 2—Verification powers
Customs Act 1901
2 At the end of subsection 4C(1)
Add “or is a verification officer for the purposes of Subdivision
JA of Division 1 of Part XII”.
3 Paragraph 4C(2)(b)
Omit “or monitoring officer”, substitute “, monitoring officer or
verification officer”.
4 Subsection 4C(3)
Omit “or monitoring officer”, substitute “, monitoring officer or
verification officer”.
5 Subsection 4C(5)
Omit “or monitoring officer”, substitute “, monitoring officer or
verification officer”.
6 After Division 4A of Part VI
Insert:
Division 4B—Exportation of textile and clothing goods to the US
126AE
Authorised officer may request records or ask questions
(1) If textile and clothing goods are
exported to the US, an authorised officer may request a person who:
(a) is the exporter or producer of the
goods; or
(b) is involved in the transportation
of the goods from Australia to the US;
to produce particular records, or to answer questions put
by the officer, in relation to the export, production or transportation of the
goods.
(2) The person is not obliged to comply with
the request.
Disclosing records or answers to US
(3) An authorised officer may disclose any
records so produced, or disclose any answers to such questions, to a US customs
official for the purpose of a matter covered by Article 4.3 of the Agreement.
Definitions
(4) In this section:
Agreement means the Australia‑United
States Free Trade Agreement done at Washington DC on 18 May 2004, as amended from time to time.
Note: In 2004 the text of the Agreement was
accessible on the Internet through the web site of the Department of Foreign
Affairs and Trade.
Harmonized System has the same meaning as in
section 153YA.
textile and clothing goods means goods that
are classified to:
(a) subheading 4202.12, 4202.22,
4202.32 or 4202.92 of Chapter 42 of the Harmonized System; or
(b) any of Chapters 50 to 63 of
the Harmonized System; or
(c) heading 7019 of Chapter 70 of
the Harmonized System; or
(d) subheading 9409.90 of
Chapter 94 of the Harmonized System.
US means the United States of America.
US customs official means a
person representing the customs administration of the US.
7 Subdivision J of Division 1 of Part XII
(heading)
Repeal the heading, substitute:
Subdivision J—General powers to monitor and audit
8 After Subdivision J of Division 1 of Part XII
Insert:
Subdivision
JA—Powers to monitor and audit—Australia‑United
States Free Trade Agreement
214BAA
Simplified outline
The following is a simplified outline of
this Subdivision:
• This Subdivision allows
certain officers (verification officers) to enter premises, and
to exercise certain powers (AUSFTA verification powers) in or on
the premises, for the purpose of verifying information relating to the export,
production or transportation of textile and clothing goods that are exported to
the US.
• However, verification
officers may only enter premises under this Subdivision with the occupier’s
consent.
• In entering premises and
exercising AUSFTA verification powers, verification officers may be accompanied
by US customs officials, but only with the occupier’s consent.
214BAB
Definitions
In this Subdivision:
Agreement means the Australia‑United
States Free Trade Agreement done at Washington DC on 18 May 2004, as amended from time to time.
Note: In 2004 the text of the Agreement was
accessible on the Internet through the web site of the Department of Foreign
Affairs and Trade.
AUSFTA verification powers has the meaning
given by section 214BAC.
Harmonized System has the same meaning as in
section 153YA.
occupier of premises includes a person who is
apparently in charge of the premises.
textile and clothing goods means goods that
are classified to:
(a) subheading 4202.12, 4202.22,
4202.32 or 4202.92 of Chapter 42 of the Harmonized System; or
(b) any of Chapters 50 to 63 of
the Harmonized System; or
(c) heading 7019 of Chapter 70 of
the Harmonized System; or
(d) subheading 9409.90 of
Chapter 94 of the Harmonized System.
US means the United States of America.
US customs official means a
person representing the customs administration of the US.
verification officer means a person
authorised under section 214BAD to enter premises and to exercise AUSFTA
verification powers.
214BAC
AUSFTA verification powers
(1) For the purposes of this Subdivision, the
following are the AUSFTA verification powers:
(a) the power to search premises;
(b) the power to take photographs
(including a video recording), or make sketches, of premises or anything at
premises;
(c) the power to inspect, examine, count,
measure, weigh, gauge, test or analyse, and take samples of, anything in or on
premises;
(d) the power to inspect any document
or record in or on premises;
(e) the power to take extracts from,
or make copies of, any document or record in or on premises;
(f) the power to take into or onto
premises any equipment or material reasonably necessary for the purpose of
exercising a power under paragraph (a), (b), (c), (d) or (e);
(g) the power to test and operate
record‑keeping, accounting, computing or other operating systems of any
kind that are at premises and may be used to generate or record information or
documents of a kind that may be communicated to Customs;
(h) the powers in subsections (2)
and (3).
Operation of equipment
(2) For the purposes of this Subdivision, the
AUSFTA verification powers include the power to operate equipment
at premises to see whether:
(a) the equipment; or
(b) a disk, tape or other storage
device that:
(i) is at the premises;
and
(ii) can be used with the
equipment or is associated with it;
contains information that is relevant to the verification
of information relating to the export, production or transportation of textile
and clothing goods that are exported to the US.
Removing documents and disks etc.
(3) For the purposes of this Subdivision, the
AUSFTA verification powers include the following powers in
relation to information described in subsection (2) that is found in the
exercise of the power under that subsection:
(a) the power to operate equipment or
other facilities at the premises to put the information in documentary form and
remove the documents so produced;
(b) the power to operate equipment or
other facilities at the premises to transfer the information to a disk, tape or
other storage device:
(i) that is brought to the
premises for the exercise of the power; or
(ii) that is at the
premises and the use of which for the purpose has been agreed in writing by the
occupier of the premises;
and to remove the disk, tape or
other storage device from the premises.
214BAD
Appointment of verification officers
(1) The CEO may, by writing, authorise an
officer to enter premises, and to exercise AUSFTA verification powers in or on
premises, for the purposes of this Subdivision.
Who may be authorised to be a verification officer
(2) The CEO must not do so unless the CEO is
satisfied that the officer is suitably qualified, because of the officer’s
abilities and experience, to exercise AUSFTA verification powers.
Form of authorisation
(3) An authorisation may apply:
(a) generally; or
(b) during a specified period; or
(c) in or on specified premises; or
(d) during a specified period in or on
specified premises.
AUSFTA verification powers to be used only as
authorised
(4) This Subdivision does not allow:
(a) an officer who is authorised to
enter premises and exercise AUSFTA verification powers during a specified
period to enter the premises or exercise the powers at a time outside that
period; or
(b) an officer who is authorised to
enter specified premises and to exercise AUSFTA verification powers in or on
the premises to enter other premises or to exercise the powers in or on the
other premises.
214BAE
Verification officers may enter premises and exercise AUSFTA verification
powers with consent
(1) A verification officer may enter
premises, and exercise AUSFTA verification powers in or on the premises, to the
extent that it is reasonably necessary for the purpose of verifying information
relating to the export, production or transportation of textile and clothing
goods that are exported to the US.
Occupier’s consent required
(2) However, a verification officer must not
enter premises under this section unless the occupier of the premises consents
to the officer entering the premises and exercising AUSFTA verification powers
in or on the premises.
(3) Before obtaining a consent under
subsection (2), a verification officer must give to the occupier of the
premises a written notice stating:
(a) that the officer wishes to enter
the premises and exercise AUSFTA verification powers in or on the premises; and
(b) the period during which the
officer wishes to exercise the powers; and
(c) the name of any US customs
official who the officer proposes will accompany the officer.
(4) Before obtaining a consent under
subsection (2), a verification officer must tell the occupier of the
premises that the occupier may refuse consent.
(5) An occupier of premises may express a
consent to be limited to entry to the premises, and to the exercise of AUSFTA
verification powers in or on the premises, during a particular period unless
the occupier withdraws the consent before the end of that period.
(6) An occupier’s consent that is not so
limited has effect in relation to any entry to the premises, and to any
exercise of AUSFTA verification powers in or on the premises, until the
occupier withdraws the consent.
Verification officer must leave premises if consent
withdrawn
(7) A verification officer must leave the
premises if the occupier withdraws the consent.
Consent to be voluntary
(8) A consent of a person does not have
effect for the purposes of this section unless it is voluntary.
Consent, or withdrawal of consent, to be in writing
(9) A consent of a person, or a withdrawal of
consent by a person, does not have effect for the purposes of this section
unless it is in writing.
Notice setting out the occupier’s rights and
obligations
(10) Before exercising AUSFTA verification
powers in respect of premises, a verification officer must give to the occupier
of the premises a written notice setting out the occupier’s rights and
obligations under this Subdivision.
Production of identity card
(11) Before a verification officer enters
premises or exercises any AUSFTA verification powers, he or she must produce
his or her identity card to the occupier.
214BAF US
customs officials may accompany verification officers
Occupier’s consent required
(1) In entering premises and exercising
AUSFTA verification powers, a verification officer may be accompanied by one or
more US customs officials, but only if the officer obtains the consent of the
occupier of the premises to those officials accompanying the officer.
(2) Before obtaining such a consent, a
verification officer must tell the occupier of the premises that the occupier
may refuse consent.
US customs officials must leave premises if consent
withdrawn
(3) The US customs officials must leave the
premises if the occupier withdraws the consent.
Consent to be voluntary
(4) A consent of a person does not have
effect for the purposes of this section unless it is voluntary.
Consent, or withdrawal of consent, to be in writing
(5) A consent of a person, or a withdrawal of
consent by a person, does not have effect for the purposes of this section
unless it is in writing.
214BAG
Availability of assistance in exercising AUSFTA verification powers
In entering premises and exercising
AUSFTA verification powers, a verification officer may obtain such assistance
as is necessary and reasonable in the circumstances.
214BAH
Verification officer may ask questions
(1) If a verification officer is in or on
premises that he or she entered under this Subdivision, the officer may request
the occupier to answer any questions put by the officer.
(2) The occupier is not obliged to comply
with the request.
214BAI
Verification officer may ask for assistance
(1) If a verification officer is in or on
premises that he or she entered under this Subdivision, then, while the officer
is entitled to remain in or on the premises, the officer may request the occupier
to provide reasonable assistance to the officer for the purpose of the
officer’s exercise of AUSFTA verification powers in or on the premises.
(2) The occupier is not obliged to comply
with the request.
214BAJ
Verification officer may disclose information to US
A verification officer may disclose any
information obtained in exercising AUSFTA verification powers to a US customs
official for the purpose of a matter covered by Article 4.3 of the Agreement.
214BAK
Operation of electronic equipment at premises
A person may operate electronic
equipment at premises in order to exercise a power under this Subdivision only
if he or she believes on reasonable grounds that the operation of the equipment
can be carried out without damage to the equipment.
214BAL
Compensation for damage to electronic equipment
(1) This section applies if:
(a) as a result of equipment being
operated as mentioned in section 214BAC:
(i) damage is caused to
the equipment; or
(ii) the data recorded on
the equipment is damaged; or
(iii) programs associated
with the use of the equipment, or with the use of the data, are damaged or
corrupted; and
(b) the damage or corruption occurs
because:
(i) insufficient care was
exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care was
exercised by the person operating the equipment.
(2) The Commonwealth must pay the owner of
the equipment, or the user of the data or programs, such reasonable
compensation for the damage or corruption as the Commonwealth and the owner or
user agree on.
(3) However, if the owner or user and the
Commonwealth fail to agree, the owner or user may institute proceedings in the
Federal Court of Australia for such reasonable amount of compensation as the
Court determines.
(4) In determining the amount of compensation
payable, regard is to be had to whether the occupier of the premises, or the
occupier’s employees and agents, if they were available at the time, provided
any appropriate warning or guidance on the operation of the equipment.
(5) Compensation is payable out of money
appropriated by the Parliament.
(6) For the purposes of subsection (1):
damage, in relation to data, includes damage
by erasure of data or addition of other data.
Schedule 2—Agricultural and veterinary chemicals amendments
Part 1—Limits on use of information
Agricultural and Veterinary Chemicals
Code Act 1994
1 After Division 4 of Part 2 of the Schedule
Insert:
Division 4A—Limits on use of information
Subdivision A—Preliminary
34B
Explanation of Division
(1) This Division limits for a period the use
the NRA can make of information given to it:
(a) in connection with an application
under section 10 or 27 relating to:
(i) approval of an active
constituent for a chemical product; or
(ii) registration of a
chemical product; or
(iii) approval of a label
for a container for a chemical product; or
(b) under section 161 in
connection with a registered chemical product.
(2) During the period, the NRA cannot use the
information for granting another application, or for a reconsideration of an
approval or registration, unless:
(a) the NRA is given a written
statement made by a person who can authorise the use of the information
consenting to the use; or
(b) certain other conditions are met.
(3) The object of limiting use of the
information in this way is to encourage innovation by making it easier for a
person who made an investment in finding out the information to get a return on
that investment.
Subdivision B—Limits on use of information
34C NRA
must not use some information during some periods for some purposes
(1) During the period described in an item of
the table, the NRA must not use information described in the item for a purpose
described in the item.
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Limits on use of
information
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The NRA must not use
this information:
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During this period:
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For this purpose:
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1
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Information that the applicant or an approved person gives
the NRA:
(a) in connection with an application under section 10
or 27; and
(b) before the NRA makes a preliminary assessment under
section 11A or 28A of the application
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The period:
(a) starting when the information is given; and
(b) ending when the NRA makes the preliminary assessment
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Making a decision under section 14, 29 or 34 (except
a decision on the application)
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2
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Information that the applicant or an approved person gives
the NRA:
(a) in connection with an application under section 10
or 27; and
(b) as required by the NRA or section 160A
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The period:
(a) starting when the NRA makes a preliminary assessment
under section 11A or 28A of the application; and
(b) ending when the NRA treats the application as having been
withdrawn or grants or refuses the application
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Making a decision under section 14, 29 or 34 (except
a decision on the application)
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3
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Information that:
(a) was given to the NRA by the applicant or an approved
person in connection with an application under section 10 or 27; and
(b) was given as required by the NRA or section 160A;
and
(c) was relied on by the NRA to grant the application
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The relevant period described in section 34F
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Making a decision under section 14, 29 or 34
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4
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Information that the interested person for a registered
chemical product gives the NRA under section 161 in connection with the
product
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The period:
(a) starting when the person gives the NRA the information;
and
(b) ending 5 years later if the product is an agricultural
chemical product or 3 years later if the product is a veterinary chemical
product
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Making a decision under section 14, 29 or 34
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Note 1: Section 34D sets out exceptions to this
subsection.
Note 2: Section 161 may require an interested
person for an approved active constituent to give the NRA information in
connection with the constituent, even though this table does not deal with that
requirement.
(2) This section applies only to information
given to the NRA:
(a) in connection with an application
made after the commencement of this section; or
(b) under section 161 in
connection with a chemical product that was registered as a result of an
application made after the commencement of this section.
(3) The use of information in contravention
of subsection (1) for making a decision does not affect the validity of
the decision.
(4) An action or proceeding does not lie
against any of the following for any loss directly or indirectly sustained
because of the use of information in contravention of subsection (1):
(a) the Commonwealth;
(b) the NRA;
(c) a person who is or has been:
(i) a director of the NRA;
or
(ii) the Chief Executive
Officer of the NRA; or
(iii) a delegate of the NRA;
or
(iv) a member of the staff
of the NRA.
Subdivision C—Exceptions to limits on use of information
34D
Exceptions
(1) Section 34C does not prevent the NRA
from using information for making a decision:
(a) under section 14 or 29 about
an application; or
(b) under section 34 about a
reconsideration of an approval or registration;
if a condition in subsection (2), (3), (4), (5) or
(6) of this section is met.
Evidence of consent for use
(2) One condition is that the applicant, an
approved person or the interested person for the approval or registration gives
the NRA a written statement by the authorising party of that party’s consent to
the NRA using the information for making the decision. This condition is met
even if the authorising party:
(a) later states that it has not
consented; or
(b) withdraws the consent (whether
before or after the NRA is given the statement of consent).
Note: Chapter 7 of the Criminal Code
creates offences relating to false and misleading statements and forgery.
Use in the public interest
(3) Another condition is that the NRA is
satisfied, having regard to the criteria (if any) prescribed by the
regulations, that the use of the information is in the public interest.
Note: Section 34E sets out other rules that are
relevant to the exception based on this condition.
Information does not favour the applicant or interested
person
(4) Another condition is that:
(a) the decision relates to:
(i) a proposed or existing
approval of an active constituent for a proposed or existing chemical product;
or
(ii) a proposed or existing
registration of a proposed or existing chemical product; and
(b) the information meets a condition
in paragraph 160A(4)(b) or (c) or 161(2)(b) or (c) (which are about showing
that use or dealing with the product may have adverse effects or that the
product may be ineffective), whether or not the information was given to the
NRA under section 160A or 161.
Identical information whose use is not limited
(5) Another condition is that the NRA is
satisfied that there is identical information, or information to the same
effect, whose use is not prevented by section 14B or 34C or Part 3.
Information given to NRA in connection with certain
applications
(6) Another condition is that the application
mentioned in subsection 34C(1) was one of the following:
(a) an application for approval, as an
active constituent for a chemical product, of a substance that was a previously
endorsed active constituent on the commencement of this Division;
(b) an application for the variation
of the relevant particulars or conditions of the approval of an active
constituent for a chemical product;
(c) an application for the
registration of a companion animal product each active constituent for which
was a previously endorsed active constituent at the time of the preliminary
assessment of the application under section 11A;
(d) an application for variation of
the relevant particulars or conditions of the registration of a companion
animal product;
(e) an application for the approval of
a label for a container for a companion animal product each active constituent
of which was a previously endorsed active constituent at the time of the
preliminary assessment of the application under section 11A;
(f) an application for variation of
the relevant particulars or conditions of the approval of a label for a
container for a companion animal product.
34E
Further rules about public interest exception
(1) This section applies if the NRA is
satisfied under subsection 34D(3) that it is in the public interest to use
information that section 34C would otherwise prohibit the NRA from using
for making a decision:
(a) under section 14 or 29 about
an application; or
(b) under section 34 about a
reconsideration of an approval or registration.
(2) As soon as practicable after becoming
satisfied, the NRA must give written notice of its satisfaction to:
(a) the applicant, an approved person
or the interested person for the approval or registration; and
(b) the person whom the NRA believes
is the authorising party for the information.
(3) Section 168 provides for additional
matters to be included in the notice.
(4) The NRA must not make the decision using
the information before the end of 28 days after the day on which the notice is
given.
(5) However, subsections (3) and (4) do
not apply if:
(a) the NRA believes it is necessary
to make the decision before the end of 28 days after the notice is given, to
prevent imminent risk to public health or occupational health or safety; and
(b) states that belief in the notice.
Subdivision D—Period of limit on use of information
34F
Period of limit on future use of information relied on in granting application
(1) Subsection 34C(1) prohibits the NRA from
using, during the period described in an item of the following table,
information that:
(a) was given to the NRA by the
applicant or an approved person in connection with an application described in
the item; and
(b) was given as required by the NRA
or section 160A; and
(c) was relied on by the NRA to grant
the application.
The period starts when the application was granted.
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Period for which the
NRA must not use the information
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Application
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Period
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1
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Application made under section 10 for approval of an
active constituent (for a proposed or existing chemical product) that was not
a previously endorsed active constituent on the commencement of this Division
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8 years
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2
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Application made under section 10 for:
(a) registration of a chemical product at least one of whose
active constituents was not a previously endorsed active constituent when the
application was acknowledged; or
(b) approval of a label for a container for a chemical
product at least one of whose active constituents was not a previously
endorsed active constituent when the application was acknowledged
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8 years
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3
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Application (except one covered by item 2) made under
section 10 for:
(a) registration of an agricultural chemical product; or
(b) approval of a label for a container for an agricultural
chemical product
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5 years
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4
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Application (except one covered by item 2) made under
section 10 for:
(a) registration of a veterinary chemical product; or
(b) approval of a label for a container for a veterinary
chemical product
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3 years
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5
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Application made under section 27 for variation of
the relevant particulars or conditions of:
(a) the registration of an agricultural chemical product; or
(b) the approval of a label for a container for an
agricultural chemical product
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5 years
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6
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Application made under section 27 for variation of
the relevant particulars or conditions of:
(a) the registration of a veterinary chemical product; or
(b) the approval of a label for a container for a veterinary
chemical product
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3 years
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Note 1: This section has effect for the purposes of
item 3 of the table in subsection 34C(1) (and not for any of the other
items in that table).
Note 2: This section is not relevant to information if
section 34D provides an exception to the prohibition in subsection 34C(1)
on the NRA using the information.
Extension of 8‑year limits
(2) The period mentioned in item 1 or 2
of the table in subsection (1) in relation to:
(a) an application for an approval of
an active constituent (a key constituent); or
(b) an application for registration of
a chemical product containing an active constituent (also a key constituent)
that had not been approved when the application was acknowledged; or
(c) an application for approval of a
label for a container for a chemical product containing an active constituent
(also a key constituent) that had not been approved when the application
was acknowledged;
is extended by 1 year for each 5 distinct uses that meet
the requirements in subsections (3), (4) and (5).
(3) The first requirement is that the uses
are uses of a chemical product (an extension product) for which
the following conditions are met:
(a) the key constituent is an active
constituent for the product;
(b) the product was registered as a
result of an application that:
(i) was made by the
applicant mentioned in subsection (1); and
(ii) was acknowledged
before the approval of the key constituent.
(4) The second requirement is that each of
the uses is included in an approved label for a container for an extension
product as a result of an application that:
(a) is for:
(i) the approval of the
label; or
(ii) the variation of the
relevant particulars or conditions of approval of the label; and
(b) was made by the applicant
mentioned in subsection (1) or by the interested person in relation to the
approval of the key constituent; and
(c) was acknowledged before the end of
6 years after the date of the approval of the key constituent as a result of an
application by the applicant mentioned in subsection (1).
(5) The third requirement is that all 5 of
the uses are prescribed by the regulations at the latest time an application
described in subsection (4) is granted.
(6) However, the period mentioned in
item 1 or 2 of the table in subsection (1) cannot be extended so that
it exceeds 11 years.
Subdivision E—Ancillary provisions
34G
Identifying information relied on in advice NRA relied on
(1) This section has effect if:
(a) the NRA made a decision under
subsection 14(1) or 29(1) to grant an application made after the commencement
of this section; and
(b) in making the decision, the NRA
relied on advice given by a person, body or Government the NRA consulted under
section 8 or 8A of the Agricultural and Veterinary Chemicals
(Administration) Act 1992.
(2) The NRA must cause to be published a
summary of the advice.
(3) The summary must:
(a) identify the information that the
person, body or Government relied on in giving the advice; and
(b) include the matters (if any)
prescribed by the regulations.
Part 2—Provisions relating to limits on use of information
Agricultural and Veterinary Chemicals
(Administration) Act 1992
2 Paragraph 69EX(a)
After “Part”, insert “or after the commencement of
Division 4A of Part 2 of the Code set out in the Schedule to the Agricultural
and Veterinary Chemicals Code Act 1994”.
Agricultural and Veterinary Chemicals
Code Act 1994
3 Section 3 of the Schedule
Insert:
acknowledge an application made under
section 10 or 27 has the meaning given in the table:
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Acknowledgment of an
application
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If:
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The application is
acknowledged when:
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1
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The NRA gives notice under subsection 11A(2) (applying of its
own force or because of section 28A) that the application has passed a
preliminary assessment and will be given a full evaluation in due course
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The NRA gives the notice
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2
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The NRA is satisfied that defects in the application have
been rectified as required by a notice given under paragraph 11A(3)(a)
(applying of its own force or because of section 28A)
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The NRA becomes satisfied
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3
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The NRA starts to consider the application after deferring
the consideration under subparagraph 11A(3)(b)(i) (applying of its own force
or because of section 28A)
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The NRA starts to consider the application
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4 Section 3 of the Schedule
Insert:
authorising party for information means a
person who would be entitled to bring an action for breach of an obligation of
confidence if the information were disclosed by someone else to the NRA for the
purposes of this Code without the person’s permission.
5 Section 3 of the Schedule
Insert:
companion animal product means a veterinary
chemical product solely for administration or application to animals that:
(a) are not food‑producing
species; and
(b) are not prescribed by the
regulations.
6 Section 3 of the Schedule
Insert:
previously endorsed active constituent for a
chemical product at a particular time means a substance that:
(a) before that time, had been
approved or registered (however described) under a law of the Commonwealth or a
State or Territory as an active constituent for a chemical product; or
(b) was an active constituent for a
chemical product that, before that time, had been approved or registered
(however described) under a law of the Commonwealth or a State or Territory as
a chemical product;
whether or not the approval or registration was a result
of an application by a particular person.
7 After section 11A of the Schedule
Insert:
11B NRA
to publish summary of application
(1) As soon as practicable after an
application is acknowledged, the NRA must cause to be published a summary of
the application.
(2) The summary must include the details
relating to the application that are prescribed by the regulations (if any).
8 After section 14A of the Schedule
Insert:
14B NRA
not to use information for registration of new agricultural chemical product to
approve a similar product after disclosure
(1) This section applies if:
(a) information was given to the NRA
in connection with an application made after the commencement of this section
for registration of an agricultural chemical product (the first product)
containing an active constituent that was not a previously endorsed active
constituent at the time of registration of the first product; and
(b) the information related to the
first product or the active constituent and a matter that:
(i) is described in
paragraph 14(3)(e) (except subparagraph 14(3)(e)(iv)) or paragraph 14(3)(f); or
(ii) is prescribed by the
regulations; and
(c) the information was disclosed:
(i) by the Commonwealth, a
State or a Territory; or
(ii) by an authority of the
Commonwealth, a State or a Territory (including the NRA); or
(iii) by anyone acting on
behalf of the Commonwealth, a State, a Territory or an authority of the
Commonwealth, a State or a Territory; and
(d) the information was not publicly
available before the disclosure; and
(e) as a result of the disclosure, the
interested person, or an approved person, for an application for registration
of an agricultural chemical product (the second product) that is
the same as, or similar to, the first product, seeks to have the NRA use the
information in granting the application.
(2) For 10 years after the first day on which
the first product was registered, the NRA must not use the information to grant
the application for registration of the second product if:
(a) the registration of the second
product would be commercially unfair; and
(b) the authorising party for the
information does not consent to the use.
(3) The use of information in contravention
of subsection (2) for granting the application for registration of the
second product does not affect the validity of the grant or of the registration
of the second product.
(4) An action or proceeding does not lie
against any of the following for any loss directly or indirectly sustained
because of the use of information in contravention of subsection (2):
(a) the Commonwealth;
(b) the NRA;
(c) a person who is or has been:
(i) a director of the NRA;
or
(ii) the Chief Executive
Officer of the NRA; or
(iii) a delegate of the NRA;
or
(iv) a member of the staff
of the NRA.
(5) This section has effect in addition to
Division 4A.
9 Subparagraph 15(1)(a)(i) of the Schedule
Repeal the subparagraph, substitute:
(i) the NRA also grants or
has granted an application for approval of each active constituent for the
product; and
10 After section 28 of the Schedule
Insert:
28A
Preliminary assessment of application
Section 11A applies to an
application lodged under section 28 and compliance with subsection 28(1)
in the same way as it applies to an application lodged under section 11
and compliance with subsection 11(1).
28B NRA
to publish summary of application
(1) As soon as practicable after an
application is acknowledged, the NRA must cause to be published a summary of
the application, unless satisfied that the variation applied for does not
relate to use of or dealing with a proposed or existing chemical product.
(2) The summary must include the details
relating to the application that are prescribed by the regulations (if any).
11 Subsection 58(1) of the Schedule
After “in”, insert “section 14B, Division 4A of
Part 2 and”.
12 After paragraph 167(1)(b) of the Schedule
Insert:
(ba) a decision under section 28A
that the application does not comply with subsection 28(1);
(bb) a decision under section 28A:
(i) to defer consideration
of an application to vary the relevant particulars, or the conditions, of an
approval or registration; or
(ii) to treat such an
application as having been withdrawn; or
(iii) to reject such an
application;
(bc) a decision under section 28A
refusing to extend a period;
13 After paragraph 167(1)(e) of the Schedule
Insert:
(ea) a decision (the information
decision) under subsection 34D(3) that the NRA is satisfied that it is
in the public interest to use information that section 34C would otherwise
prohibit the NRA from using for making a decision (the substantive
decision):
(a) under section 14
or 29 about an application; or
(b) under section 34
about a reconsideration of an approval or registration;
14 After subsection 167(2) of the Schedule
Insert:
(2A) Despite paragraph (1)(ea), an
application may not be made to the Administrative Appeals Tribunal for review
of the information decision if the NRA stated in the notice of that decision
given under section 34E that the NRA believed it was necessary to make the
substantive decision before the end of 28 days after giving the notice, to
prevent imminent risk to public health or occupational health or safety.
Part 3—Change of name from NRA to APVMA
Agricultural and Veterinary Chemicals
Code Act 1994
15 Section 3 of the Schedule (definition of acknowledge)
Omit “NRA” (wherever occurring), substitute “APVMA”.
16 Section 3 of the Schedule (definition of authorising
party)
Omit “NRA”, substitute “APVMA”.
17 Sections 11B and 14B of the Schedule
Omit “NRA” (wherever occurring), substitute “APVMA”.
Note: The headings to sections 11B and 14B of
the Schedule are altered by omitting “NRA” and substituting “APVMA”.
18 Subparagraph 15(1)(a)(i) of the Schedule
Omit “NRA”, substitute “APVMA”.
19 Subsection 28B(1) of the Schedule
Omit “NRA”, substitute “APVMA”.
Note: The heading to section 28B of the Schedule
is altered by omitting “NRA” and substituting “APVMA”.
20 Division 4A of Part 2 of the Schedule
Omit “NRA” (wherever occurring), substitute “APVMA”.
Note: The headings to sections 34C and 34G of
the Schedule are altered by omitting “NRA” and substituting “APVMA”.
21 Section 167 of the Schedule
Omit “NRA” (wherever occurring), substitute “APVMA”.
Schedule 3—Australian geographical indications for wine amendments
Australian Wine and Brandy Corporation
Act 1980
1 Subsection 4(1)
Insert:
Federal Court means the Federal Court of
Australia.
2 Subsection 4(1)
Insert:
pending, in relation to an application for
the registration of a trade mark under the Trade Marks Act 1995, has the
meaning given in that Act.
3 Subsection 4(1)
Insert:
registered owner, in relation to a trade
mark, means the person in whose name the trade mark is registered under the Trade
Marks Act 1995.
4 Subsection 4(1)
Insert:
registered trade mark means a trade mark
whose particulars are entered in the Register of Trade Marks under the Trade
Marks Act 1995.
5 Subsection 4(1)
Insert:
Register of Trade Marks means the register
kept under section 207 of the Trade Marks Act 1995.
6 Subsection 4(1)
Insert:
trade mark has the meaning given in the Trade
Marks Act 1995.
7 Subsection 40P(1)
Repeal the subsection, substitute:
(1) The functions of the Committee are:
(a) to deal with applications for the
determination of geographical indications for wine in relation to regions and
localities in Australia (Australian GIs) in accordance with this
Part; and
(b) to make determinations of
Australian GIs in accordance with this Part; and
(c) to make determinations for the
omission of Australian GIs in accordance with this Part; and
(d) any other functions conferred on
the Committee under this Part.
8 Subsection 40P(2)
Omit “function”, substitute “functions”.
9 Before section 40Q in Division 4 of
Part VIB
Insert:
Subdivision A—What this Division is about
40PA
What this Division is about
(1) This Division deals with the determining
of geographical indications (GIs) in relation to a region or
locality in Australia.
Note: Geographical indications in relation to wine
manufactured in an agreement country are not determined under this Division.
They are determined in the agreement between Australia and the agreement
country.
(2) Subdivisions B and C deal with the powers
of the Committee and applications for the determination of GIs. Subdivision D
deals with objections to the determination of a GI on the basis of pre‑existing
trade mark rights. GIs are determined under Subdivision E.
Subdivision B—Powers of Committee to determine geographical indications
10 After section 40Q
Insert:
40QA
Committee must await decisions under Subdivision D
The Committee must not do a thing under
Subdivision E in respect of a proposed GI unless the requirements of
Subdivision D have been complied with.
Subdivision C—Applications for determinations of geographical indications
11 After section 40R
Insert:
Subdivision D—Objections to determination of geographical indications
based on pre‑existing trade mark rights
40RA
Notice to be given of proposed geographical indication
(1) The Presiding Member of the Committee
must cause a notice under subsection (2) to be published if:
(a) an application under
section 40R has been made for the determination of a geographical
indication (the proposed GI); or
(b) the Committee is considering
determining a geographical indication (the proposed GI) on its
own initiative under section 40Q; or
(c) after an application under
section 40R has been made, the Committee is considering, under paragraph
40T(3)(b), determining a geographical indication (the proposed GI)
that is different from the GI proposed in the application.
(2) The notice must:
(a) set out the proposed GI; and
(b) invite persons to make written
objections to the Registrar of Trade Marks in relation to the proposed GI on a
ground set out in section 40RB; and
(c) invite those objections to be made
within the period of not less than one month stated in the notice.
40RB
Grounds of objection to the determination of a geographical indication
Registered owner of a registered trade mark
(1) The registered owner of a registered
trade mark may object to the determination of a proposed GI on one of the
following grounds:
(a) that the trade mark consists of a
word or expression that is identical to the proposed GI;
(b) that:
(i) the trade mark
consists of a word or expression; and
(ii) the proposed GI is likely
to cause confusion with that word or expression;
(c) that:
(i) the trade mark
contains a word or expression; and
(ii) the proposed GI is
likely to cause confusion with that word or expression; and
(iii) the owner has trade
mark rights in that word or expression.
(2) The owner may object on the ground
specified in paragraph (1)(c) even if there are conditions or limitations
entered on the Register of Trade Marks suggesting that the owner does not have
trade mark rights to that word or expression.
Trade mark pending
(3) If a person has an application pending
for the registration of a trade mark under the Trade Marks Act 1995, the
person may object to the determination of a proposed GI on one of the following
grounds:
(a) that:
(i) the application was
made in good faith; and
(ii) the trade mark
consists of a word or expression that is identical to the proposed GI; and
(iii) prima facie, the
requirements under the Trade Marks Act 1995 for accepting an application
for registration of a trade mark would be satisfied in respect of the trade
mark applied for;
(b) that:
(i) the application was
made in good faith; and
(ii) the trade mark
consists of a word or expression; and
(iii) the proposed GI is likely
to cause confusion with that word or expression; and
(iv) prima facie, the
requirements under the Trade Marks Act 1995 for accepting an application
for registration of a trade mark would be satisfied in respect of the trade
mark applied for;
(c) that:
(i) the application was
made in good faith; and
(ii) the trade mark
contains a word or expression; and
(iii) the proposed GI is likely
to cause confusion with that word or expression; and
(iv) prima facie, the
requirements under the Trade Marks Act 1995 for accepting an application
for registration of a trade mark would be satisfied in respect of the trade
mark applied for; and
(v) after registration, the
applicant would have trade mark rights in the word or expression.
Trade mark not registered
(4) If a person claims to have trade mark
rights in a trade mark that is not registered, the person may object to
the determination of a proposed GI on one of the following grounds:
(a) that:
(i) the trade mark
consists of a word or expression that is identical to the proposed GI; and
(ii) the person has trade
mark rights in that word or expression; and
(iii) the rights were
acquired through use in good faith;
(b) that:
(i) the trade mark
consists of or contains a word or expression; and
(ii) the proposed GI is likely
to cause confusion with that word or expression; and
(iii) the person has trade
mark rights in that word or expression; and
(iv) the rights were
acquired through use in good faith.
40RC
Consideration of objections
Notice of objection to be given to Committee
(1) If:
(a) the Registrar of Trade Marks
receives an objection in relation to the proposed GI on a ground set out in
section 40RB; and
(b) the objection is received within
the period stated in the notice under section 40RA;
the Registrar of Trade Marks must in writing notify the
Committee of the receipt and terms of the objection.
Registrar of Trade Marks to make decision on whether
ground made out or not
(2) If an objection is notified to the
Committee under subsection (1), the Registrar of Trade Marks must decide
in writing whether the ground of objection is or is not made out.
Registrar may make recommendation to Committee to
determine a GI
(3) If:
(a) the Registrar of Trade Marks
decides that the ground of objection is made out; and
(b) the Registrar of Trade Marks is
satisfied that it is reasonable in the circumstances to recommend to the
Committee that the proposed GI be determined despite the objection having been
made out;
the Registrar of Trade Marks may make the recommendation.
The recommendation must be in writing.
Note 1: For example, it may be reasonable for the
Registrar of Trade Marks to make such a recommendation if the Registrar of
Trade Marks is satisfied that the proposed GI was in use before the trade mark
rights arose.
Note 2: If a recommendation is made under
subsection (3), the Committee may determine the GI (see subsection
40SA(4)).
(4) In determining under
paragraph (3)(b) whether it is reasonable in the circumstances to make the
recommendation to the Committee, the Registrar of Trade Marks must have regard
to Australia’s international obligations.
Regulations
(5) Regulations may set out the procedure to
be followed in making a decision under subsection (2) or (3). The
procedures may include the charging of fees, the holding of hearings and the
taking of evidence.
40RD
Notice to be given of decision
Notice to be given by Registrar of Trade Marks
(1) After the Registrar of Trade Marks has
made a decision under section 40RC in relation to the proposed GI, the
Registrar of Trade Marks must, in writing, inform the following of the outcome
of the decision and of any recommendation that has been made under subsection
40RC(3):
(a) the person who proposed the GI, if
there was an application under section 40R for the GI;
(b) the person who objected to the
determination of the proposed GI;
(c) the Committee.
Notice to be given by Committee
(2) After receiving notice of a decision
under subsection (1), the Presiding Member must cause a notice to be
published:
(a) setting out the proposed GI; and
(b) stating that a decision of the
Registrar of Trade Marks has been made in relation to the proposed GI; and
(c) setting out the terms of the
decision and any recommendation made under subsection 40RC(3) in relation to
the proposed GI.
(3) The notice under subsection (2) is
to be published in the manner that the Committee thinks appropriate.
40RE
Decision that ground of objection no longer exists
(1) If:
(a) a decision has been made that a
ground of objection to a proposed GI has been made out; and
(b) a person applies in writing to the
Registrar of Trade Marks for a decision that circumstances have changed since
that decision was made such that the ground of objection no longer exists;
the Registrar of Trade Marks may, in writing, make a
decision that the ground of objection no longer exists.
Note: If the Registrar of Trade Marks makes a
decision under this section, the Committee may determine the GI (see subsection
40SA(5)).
(2) Regulations may set out the procedure to
be followed in making a decision under subsection (1). The procedures may
include the charging of fees, the holding of hearings and the taking of
evidence.
40RF
Appeals
(1) An appeal lies to the Federal Court
against a decision of the Registrar of Trade Marks, made under:
(a) subsection 40RC(2) (a decision
that a ground of objection is or is not made out); and
(b) subsection 40RC(3) (a
recommendation that a proposed GI be determined or a refusal to make such a
recommendation); and
(c) section 40RE (a decision that
a ground of objection no longer exists or a refusal to make such a decision).
(2) The jurisdiction of the Federal Court to
hear and determine appeals against decisions of the Registrar of Trade Marks
under this Act is exclusive of the jurisdiction of any other court except the
jurisdiction of the High Court under section 75 of the Constitution.
(3) On hearing an appeal against a decision
of the Registrar of Trade Marks under this Act, the Federal Court may do any
one or more of the following:
(a) admit further evidence orally, or
on affidavit or otherwise;
(b) permit the examination and cross‑examination
of witnesses, including witnesses who gave evidence before the Registrar of
Trade Marks;
(c) order an issue of fact to be tried
as it directs;
(d) affirm, reverse or vary the
Registrar of Trade Marks’s decision;
(e) give any judgment, or make any
order, that, in all the circumstances, it thinks fit;
(f) order a party to pay costs to
another party.
(4) The Registrar of Trade Marks may appear
and be heard at the hearing of an appeal to the Federal Court against a decision
of the Registrar of Trade Marks.
(5) Except with the leave of the Federal
Court, an appeal does not lie to the Full Court of the Federal Court against a
decision of a single judge of the Federal Court in the exercise of its
jurisdiction to hear and determine appeals from decisions of the Registrar of
Trade Marks.
(6) The regulations may make provision about
the practice and procedure of the Federal Court in a proceeding under this
section, including provision:
(a) prescribing the time for starting
the action or proceeding or for doing any other act or thing; or
(b) for an extension of that time.
40RG
Decisions made under this Division not to affect rights under Trade Marks Act
A decision made under this Division does
not:
(a) create or affect a right under the
Trade Marks Act 1995 or at common law in respect of a trade mark; or
(b) in any way pre‑empt or
affect a decision of the Registrar of Trade Marks under the Trade Marks Act
1995 in respect of a pending application for the registration of a trade
mark.
Subdivision E—Determinations of geographical indications
12 Before section 40S
Insert:
40SA
When may a determination be made under this Subdivision?
(1) If an objection was made to a proposed
geographical indication (GI) under section 40RB, the
Committee may only determine the GI in the circumstances set out in this
section.
Grounds of objection not made out
(2) The Committee may determine a GI that was
the subject of a decision under subsection 40RC(2), if:
(a) all appeals against, or reviews
of, the decision (if any) in relation to the GI have been finalised; and
(b) the decision standing after the
appeals and reviews have been finalised is that a ground of objection has not
been made out in relation to the GI.
If grounds for objection made out and person agrees to
determination of GI
(3) The Committee may determine a GI that is
the subject of a decision that a ground of objection has been made out, if the
person who objected to the determination of the GI has agreed, by notice in
writing given to the Committee, to the determination of the GI.
If grounds for objection made out and a recommendation
is made under subsection 40RC(3)
(4) The Committee may determine a GI that is
the subject of a decision that a ground of objection has been made out, if:
(a) a recommendation has been made to
the Committee under subsection 40RC(3) that the GI should be determined despite
the ground of objection having been made out; and
(b) all appeals against, or reviews
of, the decision that the GI should be determined (if any) have been finalised;
and
(c) the decision standing after the
appeals and reviews have been finalised is that the GI should be determined.
If grounds for objection made out and a decision is
made under section 40RE
(5) The Committee may determine a GI that is
the subject of a decision that a ground of objection has been made out, if:
(a) a decision has been made under
section 40RE that the ground of objection no longer exists; and
(b) all appeals against, or reviews
of, the decision that the ground no longer exists (if any) have been finalised;
and
(c) the decision standing after the
appeals and reviews have been finalised is that the ground no longer exists.
13 At the end of section 40T
Add:
(4) In determining a geographical indication,
the Committee must not consider any submission to the extent that the
submission asserts a trade mark right in respect of the proposed geographical
indication.
14 At the end of subsection 40X(2)
Add:
; and (c) if a decision has been made under
section 40RC before the final determination, no application to the
Administrative Appeals Tribunal may be made in respect of that decision under
section 40RC. An appeal lies to the Federal Court under section 40RF
from a decision under section 40RC.
15 At the end of subsection 40Y(1)
Add:
Note: Under section 40RF, an appeal lies to the
Federal Court from a decision under section 40RC.
16 Application
The amendments made by items 1 to 15 of this Schedule apply
to applications for determination of geographical indications that have not
been finally determined under section 40W of the Australian Wine and
Brandy Corporation Act 1980 on the day this item commences.
17 After Division 4 of Part VIB
Insert:
Division 4A—Omission of registered geographical indications
Subdivision A—What this Division is about
40ZAA
What this Division is about
(1) This Division deals with determining the
omission from the Register of geographical indications (Australian GIs)
determined under Division 4.
(2) The grounds for omission are that an
Australian GI is not in use (see Subdivision B) or is no longer required (see
Subdivision C).
Note: Subsection 40ZD(3) also deals with changes to
the Register.
Subdivision B—Omission of Australian GIs for non‑use
40ZAB
Power of Committee to determine that an Australian GI should be omitted from
the Register
The Committee may, either on its own
initiative or on an application made in accordance with section 40ZAC,
determine that an Australian GI is to be omitted from the Register on the
ground that the GI is not in use.
40ZAC
Application
(1) A person (the applicant)
may apply in the prescribed form to the Committee to omit an Australian GI from
the Register on the ground that the GI is not in use.
(2) The application must be accompanied by
such fee (if any) charged by the Corporation for the making of such an
application.
(3) The Corporation may waive the fee.
(4) If the application is not accompanied by
the fee, and the fee is not waived by the Corporation, the application is
treated as having never been made.
40ZAD
Further information concerning an application
(1) For the purposes of determining the
application, the Committee may, by notice in writing, require the applicant to
provide such further information as the Committee directs, within the period
specified in the notice.
(2) If the applicant does not comply with
this requirement, the application is taken to have been withdrawn.
(3) A notice must include a statement about
the effect of the above.
40ZAE
Notice by Committee
If the Committee:
(a) receives an application under
section 40ZAC; or
(b) proposes on its own initiative
that an Australian GI should be omitted from the Register on the ground that
the GI is not in use;
the Presiding Member of the Committee must cause a notice
to be published in the manner that the Committee thinks appropriate:
(c) setting out the Australian GI; and
(d) stating that an application under
section 40ZAC has been made, or that the Committee is proposing to make a
determination to omit the GI on its own initiative; and
(e) inviting persons to make written
submissions to the Committee in relation to the application or proposal within
the period of not less than one month that is stated in the notice.
40ZAF
Determination by Committee
(1) After considering any submissions made to
it in response to a notice under section 40ZAE, the Committee must
determine whether to omit the Australian GI on the ground that the GI is not in
use.
(2) The Committee may, in writing, make a
determination to omit the GI on that ground if the Committee is satisfied of
the following matters:
(a) that the GI has been registered
for a period of more than 5 years before the date of the notice under
section 40ZAE;
(b) that the GI has not been used
during the period of 3 years before the date of the notice under
section 40ZAE (see subsection (3));
(c) that no special circumstances
exist in relation to the region or locality indicated by the GI that would
preclude the making of a determination to omit the GI from the Register (see subsection (4)).
Meaning of GI not been used
(3) For the purposes of
paragraph (2)(b), an Australian GI has not been used if:
(a) there has not been a production of
wine for commercial use originating in the region or locality indicated by the
GI; and
(b) wine originating in the region or
locality indicated by the GI has not been described and presented for sale
within Australia, or for export, using that GI.
Meaning of special circumstances
(4) For the purposes of
paragraph (2)(c), special circumstances exist if:
(a) the region or locality indicated
by the GI has been affected by fire, drought or some other disaster; and
(b) as a result of being so affected,
there has not been a production of wine for commercial use originating in the
region or locality indicated by the GI during the period of 3 years immediately
before the date of the notice under section 40ZAE.
40ZAG
Notice of determination
The Presiding Member of the Committee
must cause:
(a) a notice to be given of the
Committee’s determination to the applicant (if any); and
(b) if the determination made is to
omit the Australian GI from the Register—a notice setting out the terms of the
determination to be published in the manner that the Committee thinks
appropriate.
40ZAH
AAT review of a determination
(1) Application may be made to the
Administrative Appeals Tribunal for review of the determination made under
section 40ZAF.
(2) Despite paragraph 29(1)(d) and subsection
29(2) of the Administrative Appeals Tribunal Act 1975, an application to
the Tribunal for review of a determination under section 40ZAF must be
made within 28 days after notice of the determination is published in
accordance with section 40ZAG.
(3) Despite subsection 29(8) of the Administrative
Appeals Tribunal Act 1975, an application under subsection 29(7) of that
Act in respect of a determination under section 40ZAF must be made before
the time fixed by subsection (2) of this section ends.
40ZAI
Date of effect of determination to omit GI
(1) If the determination made by the
Committee under section 40ZAF is a determination to omit the Australian GI
from the Register, the Presiding Member must give a copy of the determination
to the Registrar so that particulars of the determination can be omitted from
the Register:
(a) if an application is made to the
Administrative Appeals Tribunal under section 40ZAH for review of the
determination—as soon as practicable after the decision of the Tribunal on the
review is given; or
(b) otherwise—as soon as practicable
after the 28th day after notice of the determination is published in accordance
with section 40ZAG.
(2) When the Presiding Member gives a copy of
the determination to the Registrar, the Presiding Member must also give a copy
to the Chairperson of the Corporation.
(3) The determination of the Committee takes
effect on the day on which particulars of the GI are omitted from the Register.
Subdivision C—Omission of Australian GIs because no longer required
40ZAJ
Application
(1) A person (the applicant)
may apply in the prescribed form to the Committee to omit an Australian GI from
the Register on the ground that the GI is no longer required.
(2) The application must be accompanied by a
written statement from each of the following organisations supporting the
application:
(a) a declared winemakers’
organisation (if any);
(b) a declared wine grape growers’
organisation (if any);
(c) the organisation or organisations
representing winemakers in a State or Territory wholly or partly covered by the
region or locality in Australia indicated by the GI;
(d) the organisation or organisations
representing growers of wine grapes in a State or Territory wholly or partly
covered by the region or locality in Australia indicated by the GI.
(3) The application must also be accompanied
by such fee (if any) charged by the Corporation for the making of such an
application.
(4) The Corporation may waive the fee.
(5) If:
(a) the application is not accompanied
by the fee, and the fee is not waived by the Corporation; or
(b) the application is not accompanied
by the statements referred to in subsection (2);
then the application is taken never to have been made.
40ZAK
Further information concerning an application
(1) For the purposes of determining the
application, the Committee may, by notice in writing, require the applicant to
provide such further information as the Committee directs, within the period
specified in the notice.
(2) If the applicant does not comply with
this requirement, the application is taken to have been withdrawn.
(3) A notice must include a statement about
the effect of subsection (2).
40ZAL
Notice by Committee
After receiving an application under
section 40ZAJ, the Presiding Member of the Committee must cause a notice
to be published in the manner that the Committee thinks appropriate:
(a) stating that an application under
section 40ZAJ has been made and setting out the Australian GI; and
(b) inviting:
(i) interested persons in
relation to the GI (see section 40ZAM); and
(ii) members of the
organisations referred to in subsection 40ZAJ(2); and
(iii) the organisations
referred to in subsection 40ZAJ(2);
to object to the omission of the
GI from the Register by making written submissions to the Committee within the
period of not less than one month that is stated in the notice.
40ZAM
Meaning of interested person
For the purposes of subparagraph
40ZAL(b)(i), an interested person in relation to an Australian GI is a person
who the Committee is satisfied is:
(a) a winemaker who makes wine for
commercial purposes from grapes grown in the region or locality indicated by
the GI; or
(b) a grower of grapes who grows wine
grapes in the region or locality indicated by the GI; or
(c) a person who owns or leases a
tract of land that is:
(i) 5 hectares or more in
size and situated in the region or locality indicated by the GI; and
(ii) capable of being used
to grow grapes for commercial wine production; or
(d) a person who:
(i) has a mortgage, lien
or other commercial interest over, or in relation to, a vineyard or other
property used in the production of wine that is situated in the region or
locality indicated by the GI; and
(ii) has the agreement of
the owner of the property to that person making a submission to the Committee
under section 40ZAL.
40ZAN
Determination by Committee
No submission made
(1) If no submissions have been made to the
Committee in response to the notice under section 40ZAL, the Committee
must make a determination in writing to omit the Australian GI from the
Register on the grounds that the GI is no longer required.
Submission made
(2) If a submission has been made to the
Committee, the Committee must make a determination in writing not to omit the
GI from the Register.
40ZAO
Notice of determination
The Presiding Member of the Committee must
cause:
(a) notice to be given of the
Committee’s determination to the applicant; and
(b) a notice setting out the terms of
the determination to be published in any manner that the Committee thinks
appropriate.
40ZAP
Date of effect of determination to omit Australian GI
(1) If the determination made by the
Committee under section 40ZAN is a determination to omit the Australian GI
from the Register, the Presiding Member must give a copy of the determination
to the Registrar so that particulars of the determination can be omitted from
the Register as soon as is practicable.
(2) When the Presiding Member gives a copy of
the determination to the Registrar, the Presiding Member must also give a copy
to the Chairperson of the Corporation.
(3) The determination of the Committee takes
effect on the day on which particulars of the GI are omitted from the Register.
Schedule 4—Life insurance amendments
Life Insurance Act 1995
1 After Part 2A
Insert:
Part 2B—Special provisions relating to Australian branches of
foreign life insurance companies
16ZD
Eligible foreign life insurance company
(1) A body corporate is an eligible
foreign life insurance company if:
(a) it is a foreign corporation within
the meaning of paragraph 51(xx) of the Constitution; and
(b) it is authorised in a foreign
country, or part of a foreign country, to carry on life insurance business; and
(c) it has established, or proposes to
establish, an Australian branch; and
(d) it is not an existing life company
that is registered under this Act; and
(e) the conditions specified in the
regulations are satisfied in relation to the body corporate.
(2) The conditions specified in the
regulations for the purposes of paragraph (1)(e) may include either or
both of the following kinds of conditions:
(a) a condition that the body
corporate be authorised to carry on life insurance business in a specified
country, or a specified part of a foreign country;
(b) a condition that the body
corporate be incorporated in a specified country, or a specified part of a
foreign country.
Note: For specification by class, see subsection
13(3) of the Legislative Instruments Act 2003.
(3) Subsection (2) does not limit the
regulations that may be made for the purposes of paragraph (1)(e).
(4) In this section:
Australian branch, in relation to a body
corporate, means a permanent establishment (as defined in subsection 6(1) of
the Income Tax Assessment Act 1936) in Australia through which the body
corporate carries on or proposes to carry on life insurance business.
16ZE
Act does not apply to foreign life insurance business of eligible foreign life
insurance company
This Act does not apply in relation to
life insurance business carried on outside Australia by an eligible foreign
life insurance company.
16ZF Compliance
Committee of eligible foreign life insurance company
(1) A committee is the Compliance
Committee of an eligible foreign life insurance company if:
(a) the members of the committee have
powers of management in relation to the Australian branch of the company that
carries out life insurance business in Australia; and
(b) those powers of management are
sufficient to enable those members to ensure that the company complies with
this Act; and
(c) the committee is established and
operated in accordance with requirements set out in the prudential standards.
(2) The prudential standards may set out the
following requirements in relation to the establishment and operation of
Compliance Committees:
(a) requirements relating to the
composition of Compliance Committees;
(b) requirements relating to the
resignation of members of Compliance Committees;
(c) requirements relating to the
disclosure of interests of members of Compliance Committees;
(d) requirements relating to the
termination of appointment of members of Compliance Committees;
(e) requirements relating to the
residency in Australia of members of Compliance Committees.
(3) Subsection (2) does not limit the
requirements that may be set out in the prudential standards for the purposes
of paragraph (1)(c).
(4) An eligible foreign life insurance
company that is a life company must establish and operate a Compliance
Committee.
16ZG
Address for service of eligible foreign life insurance companies
(1) A document or notice required or
permitted to be served on, or given to, an eligible foreign life insurance
company for the purposes of this Act may be served or given by:
(a) leaving it at its address for
service (see subsection (2)); or
(b) sending it by registered post to
that address.
(2) An address becomes the address for
service for the eligible foreign life insurance company when written notice of
the address is given to APRA. (The address continues to be the address for
service until APRA is given written notice of another address.)
2 Paragraph 31(c)
After “outside Australia”, insert “(other than an eligible
foreign life insurance company)”.
3 Subparagraph 31(d)(ii)
Omit “this Act.”, substitute “this Act; and”.
4 At the end of paragraph 31(d)
Add:
(iii) the company is not an
eligible foreign life insurance company.
5 At the end of section 76
Add:
(3) This section does not apply in relation
to an eligible foreign life insurance company.
6 At the end of section 92
Add:
(5) In this section:
director, in relation to a life company that
is an eligible foreign life insurance company, means a member of the Compliance
Committee of the company.
7 At the end of section 113
Add:
(3) To avoid doubt, if the life company is an
eligible foreign life insurance company, the investigation need not cover the
financial condition of the company to the extent that the financial condition
relates to life insurance business carried on outside Australia by the company
(see section 16ZE).
8 At the end of section 165
Add:
(3) To avoid doubt, if the life company is an
eligible foreign life insurance company, paragraphs (1)(c) and (d) do not
apply to the extent that the management of the company, or of the business,
relates to life insurance business carried on outside Australia by the company
(see section 16ZE).
9 At the end of section 230B
Add:
(10) In this section:
director, in relation to a life company that
is an eligible foreign life insurance company, means a member of the Compliance
Committee of the company.
10 At the end of subsection 230F(5)
Add:
Note: Officer would include a member
of the Compliance Committee of an eligible foreign life insurance company.
11 After subsection 235(1)
Insert:
(1A) If a life company that is an eligible
foreign life insurance company has engaged, is engaging, or proposes to engage,
in any conduct in contravention of this Act, of a direction given under this
Act or of a condition imposed on the registration of the company, the Court may
grant an injunction:
(a) restraining a member or members of
the Compliance Committee of the company from doing anything that would result
in the company engaging in the conduct; or
(b) if the Court thinks it desirable
to do so, requiring a member or members of the Compliance Committee of the
company to do a particular act.
12 After subsection 235(2)
Insert:
(2A) If a life company that is an eligible
foreign life insurance company has refused or failed, or is proposing to refuse
or fail, to do an act that the company is required by this Act to do, the Court
may grant an injunction requiring a member or members of the Compliance
Committee of the company to take action to ensure that the company does the
act.
13 Subsection 235(3)
Omit “(1) or (2)”, substitute “(1), (1A), (2) or (2A)”.
14 Subsection 235(5)
Omit “(1) or (2)”, substitute “(1), (1A), (2) or (2A)”.
15 Subsection 235(7)
After “life company”, insert “or other person”.
16 Paragraph 235(7)(a)
After “the company”, insert “or person”.
17 Paragraph 235(7)(b)
After “the company”, insert “or person”.
18 Subsection 235(8)
Omit “person” (wherever occurring), substitute “company or
person”.
19 After subsection 242(1)
Insert:
(1A) This section does not apply in relation to
an eligible foreign life insurance company.
20 At the end of section 245
Add:
(8) In this section:
director, in relation to a life company that
is an eligible foreign life insurance company, means a member of the Compliance
Committee of the company.
21 Schedule (paragraph (b) of the definition of company)
Omit “Territory.”, substitute “Territory; or”.
22 Schedule (at the end of the definition of company)
Add:
(c) an eligible foreign life insurance
company.
23 Schedule
Insert:
Compliance Committee, in relation to an
eligible foreign life insurance company, has the meaning given by subsection
16ZF(1).
24 Schedule
Insert:
director, in relation to an eligible foreign
life insurance company, includes a member of the Compliance Committee of the
company.
25 Schedule
Insert:
eligible foreign life insurance company has
the meaning given by section 16ZD.
Schedule 5—Foreign acquisitions and takeovers amendments
Foreign Acquisitions and Takeovers Act
1975
1 Subsection 5(1)
Insert:
foreign government investor has the meaning
given by section 17F.
2 Subsection 5(1)
Insert:
prescribed foreign government investor has
the meaning given by section 17G.
3 Subsection 5(1)
Insert:
prescribed foreign investor has the meaning
given by section 17E.
4 Subsection 5(1)
Insert:
prescribed sensitive sector has the meaning
given by section 17H.
5 Subsection 13B(1)
Omit “In determining whether a corporation is an exempt
corporation in relation to the application of section 18 or 26, the value
of its total assets”, substitute “For the purposes of Part IA, or in
determining whether a corporation is an exempt corporation, in relation to the
application of section 18 or 26, the value of a corporation’s total
assets”.
6 Subsection 13B(4)
Omit “In determining whether a business is an exempt business in
relation to the application of section 19, the value of its total assets”,
substitute “For the purposes of Part IA, or in determining whether a
business is an exempt business, in relation to the application of
section 19, the value of a business’ total assets”.
7 Subsection 13B(5)
Omit “In determining whether a corporation is an exempt corporation
in relation to the application of section 20, the value of its total
assets”, substitute “For the purposes of Part IA, or in determining
whether a corporation is an exempt corporation, in relation to the application
of section 20, the value of a corporation’s total assets”.
8 Subsection 13B(6)
Omit “In determining whether a business is an exempt business in
relation to the application of section 21, the value of its total assets”,
substitute “For the purposes of Part IA, or in determining whether a business
is an exempt business, in relation to the application of section 21, the
value of a business’ total assets”.
9 After Part I
Insert:
Part IA—Exempt foreign investments
17A
Exempt foreign investments in prescribed corporations etc.
(1) Section 18 applies in relation to a
prescribed corporation as if neither of the following were a foreign person for
the purposes of that section:
(a) a prescribed foreign investor that
is covered by subsection 17B(1) or (2) in relation to the corporation;
(b) a prescribed foreign government
investor that is covered by subsection 17C(1) in relation to the corporation.
(2) Section 20 applies in
relation to an Australian corporation as if neither of the following were a
foreign person for the purposes of that section:
(a) a prescribed foreign investor that
is covered by subsection 17B(1) or (2) in relation to the corporation;
(b) a prescribed foreign government
investor that is covered by subsection 17C(1) in relation to the corporation.
(3) Sections 19 and 21 apply in
relation to a business as if neither of the following were a foreign person for
the purposes of those sections:
(a) a prescribed foreign investor that
is covered by subsection 17B(3) in relation to the business;
(b) a prescribed foreign government investor
that is covered by subsection 17C(2) in relation to the business.
(4) Section 26 applies in
relation to an Australian corporation as if neither of the following were a
person covered by that section:
(a) a prescribed foreign investor that
is covered by subsection 17B(1) or (2) in relation to the corporation;
(b) a prescribed foreign government
investor that is covered by subsection 17C(1) in relation to the corporation.
(5) In applying section 18, 19, 20, 21
or 26 in relation to an entity that is neither a prescribed foreign investor
nor a prescribed foreign government investor, do not apply subsection (1),
(2), (3) or (4) for the purposes of:
(a) determining whether 2 or more
persons (whether or not those persons are associates) hold an aggregate
controlling interest in a corporation; or
(b) determining whether 2 or more
persons (whether or not those persons are associates) together are in a
position to control an amount of the voting power in a corporation; or
(c) determining whether 2 or more
persons (whether or not those persons are associates) together hold interests
in the issued shares in a corporation; or
(d) determining whether 2 or more
persons (whether or not those persons are associates) together are in a
position to determine the policy of a business or corporation.
17B
Asset thresholds for exempt foreign investments in prescribed corporations
etc.—prescribed foreign investors
(1) A prescribed foreign investor is covered
by this subsection in relation to a corporation if:
(a) the corporation, or a subsidiary
of the corporation, carries on a business wholly or partly in a prescribed
sensitive sector in relation to the prescribed foreign investor; and
(b) for a corporation covered by
paragraph 13(1)(a), (b), (c), (g) or (h)—the value of the corporation’s total
assets, determined under section 13B, does not exceed the amount
ascertained in accordance with regulations made for the purposes of this
paragraph; and
(c) for a corporation covered by
paragraph 13(1)(d), (e) or (f) because the corporation, or another corporation
or other corporations, held certain assets on a particular date—the value of
those assets on that date, determined in accordance with section 13, does
not exceed the amount ascertained in accordance with regulations made for the
purposes of this paragraph.
(2) A prescribed foreign investor is covered
by this subsection in relation to a corporation if:
(a) neither the corporation, nor a
subsidiary of the corporation, carries on a business wholly or partly in a
prescribed sensitive sector in relation to the prescribed foreign investor; and
(b) for a corporation covered by
paragraph 13(1)(a), (b), (c), (g) or (h)—the value of the corporation’s total
assets, determined under section 13B, does not exceed the amount ascertained
in accordance with regulations made for the purposes of this paragraph; and
(c) for a corporation covered by
paragraph 13(1)(d), (e) or (f) because the corporation, or another corporation
or other corporations, held certain assets on a particular date—the value of
those assets on that date, determined in accordance with section 13, does
not exceed the amount ascertained in accordance with regulations made for the
purposes of this paragraph.
(3) A prescribed foreign investor is covered
by this subsection in relation to a business if:
(a) both of the following conditions
are satisfied:
(i) the business is wholly
or partly in a prescribed sensitive sector in relation to the prescribed
foreign investor;
(ii) the value of the total
assets of the business, determined under section 13B, does not exceed the
amount ascertained in accordance with regulations made for the purposes of this
subparagraph; or
(b) both of the following conditions
are satisfied:
(i) the business is
neither wholly nor partly in a prescribed sensitive sector in relation to the
prescribed foreign investor;
(ii) the value of the total
assets of the business, determined under section 13B, does not exceed the
amount ascertained in accordance with regulations made for the purposes of this
subparagraph.
(4) Regulations made for the purposes of a
particular provision of this section may provide for different amounts for
different prescribed foreign investors, depending on all or any of the
following:
(a) the kind of prescribed foreign investor
concerned;
(b) in relation to subsection (1)
or paragraph (3)(a)—the kind of prescribed sensitive sector concerned;
(c) in relation to subsection (1)
or (2)—the kind of corporation concerned;
(d) in relation to
subsection (3)—the kind of business concerned;
(e) any other matter.
(5) Regulations made for the purposes of a
particular provision of this section may provide for a method for indexing an
amount.
(6) Subsections (4) and (5) do not limit
the regulations that may be made for the purposes of this section.
17C
Asset thresholds for exempt foreign investments in prescribed corporations
etc.—prescribed foreign government investors
(1) A prescribed foreign government investor
is covered by this subsection in relation to a corporation if:
(a) for a corporation covered by
paragraph 13(1)(a), (b), (c), (g) or (h)—the value of the corporation’s total
assets, determined under section 13B, does not exceed the amount
ascertained in accordance with regulations made for the purposes of this paragraph;
and
(b) for a corporation covered by
paragraph 13(1)(d), (e) or (f) because the corporation, or another corporation
or other corporations, held certain assets on a particular date—the value of
those assets on that date, determined in accordance with section 13, does
not exceed the amount ascertained in accordance with regulations made for the
purposes of this paragraph.
(2) A prescribed foreign government investor
is covered by this subsection in relation to a business if the value of the
total assets of the business, determined under section 13B, does not
exceed the amount ascertained in accordance with regulations made for the
purposes of this subsection.
(3) Regulations made for the purposes of a
particular provision of this section may provide for different amounts for
different prescribed foreign government investors, depending on all or any of
the following:
(a) the kind of prescribed foreign
government investor concerned;
(b) in relation to
subsection (1)—the kind of corporation concerned;
(c) in relation to
subsection (2)—the kind of business concerned;
(d) any other matter.
(4) Regulations made for the purposes of a
particular provision of this section may provide for a method for indexing an
amount.
(5) Subsections (3) and (4) do not limit
the regulations that may be made for the purposes of this section.
17D
Exempt foreign investments in financial sector companies etc.
(1) Section 18 applies in relation to a
financial sector company as if a prescribed foreign investor covered by
subsection (3) were not a foreign person for the purposes of that section.
(2) Section 26 applies in
relation to a financial sector company as if a prescribed foreign investor
covered by subsection (3) were not a person covered by that section.
(3) A prescribed foreign investor is covered
by this subsection if the conditions specified in the regulations are satisfied
in relation to the prescribed foreign investor.
(4) In applying section 18 or 26 in
relation to an entity that is not a prescribed foreign investor covered by
subsection (3), do not apply subsection (1) or (2) for the purposes
of:
(a) determining whether 2 or more
persons (whether or not those persons are associates) hold an aggregate
controlling interest in a corporation; or
(b) determining whether 2 or more
persons (whether or not those persons are associates) together are in a
position to control an amount of the voting power in a corporation; or
(c) determining whether 2 or more
persons (whether or not those persons are associates) together hold interests
in the issued shares in a corporation; or
(d) determining whether 2 or more
persons (whether or not those persons are associates) together are in a
position to determine the policy of a business or corporation.
(5) In this section:
financial sector company has the same meaning
as in the Financial Sector (Shareholdings) Act 1998.
17E
Prescribed foreign investor
(1) An entity is a prescribed foreign
investor if:
(a) the conditions specified in the
regulations are satisfied in relation to the entity; and
(b) the entity is not a foreign
government investor.
(2) The conditions specified in the
regulations for the purposes of subsection (1) may include any or all of
the following kinds of conditions:
(a) a condition that the entity be a
national of a specified foreign country;
(b) a condition that the entity be
incorporated under the law of a specified foreign country, or a specified part
of a foreign country;
(c) a condition that the entity be
constituted or organised under the law of a specified foreign country, or a
specified part of a foreign country.
Note: For specification by class, see subsection
13(3) of the Legislative Instruments Act 2003.
(3) Subsection (2) does not limit the
regulations that may be made for the purposes of subsection (1).
(4) In this section:
entity includes an individual.
17F
Foreign government investor
An entity is a foreign government
investor if:
(a) the entity is:
(i) a body politic of a
foreign country; or
(ii) a body politic of part
of a foreign country; or
(iii) a part of a body
politic mentioned in subparagraph (i) or (ii); or
(b) the entity is controlled by an
entity mentioned in paragraph (a); or
(c) an entity mentioned in
paragraph (a) holds an interest in the entity that satisfies the
conditions specified in the regulations.
17G
Prescribed foreign government investor
An entity is a prescribed foreign
government investor if:
(a) the entity is a foreign government
investor; and
(b) the conditions specified in the
regulations are satisfied in relation to the entity.
17H
Prescribed sensitive sector
A kind of business activity is a prescribed
sensitive sector in relation to a prescribed foreign investor if:
(a) the conditions specified in the
regulations are satisfied in relation to the prescribed foreign investor; and
(b) the conditions specified in the
regulations are satisfied in relation to the kind of business activity.
Schedule 6—Commonwealth authorities and companies amendments
Commonwealth Authorities and Companies
Act 1997
1 After section 47
Insert:
47A
Compliance with government procurement requirements
(1) This section applies to Commonwealth
authorities, and wholly‑owned Commonwealth companies, specified in the
regulations for the purposes of this section.
(2) Subject to subsection (3), the
Finance Minister may, in writing, give directions to the directors of an
authority or a company to which this section applies on matters related to the
procurement of property or services.
(3) The Finance Minister must not give a
direction that is inconsistent with Australia’s obligations under any
international agreement that deals with government procurement (whether or not
the agreement also deals with other matters).
(4) Without limiting the generality of
subsection (2), directions permitted by subsection (2) may apply,
adopt or incorporate, with or without modifications, all or any of the
Commonwealth Procurement Guidelines, as in force from time to time.
(5) The directors must ensure that the
directions are complied with by the authority or company.
(6) The directors must also ensure, as far as
practicable, that the directions are complied with by the subsidiaries of the
authority or company.
(7) In this section:
Commonwealth Procurement Guidelines means the
guidelines relating to procurement issued under the Financial Management and
Accountability Regulations 1997.
Schedule 7—Therapeutic goods amendments
Therapeutic Goods Act 1989
1 Subsection 25(3)
Repeal the subsection, substitute:
(3) If:
(a) the therapeutic goods are therapeutic
devices; and
(b) the evaluation of the goods for
registration has been completed;
the Secretary must:
(c) notify the applicant in writing of
his or her decision on the evaluation within 28 days of the making of the
decision and, in the case of a decision not to register the goods, of the
reasons for the decision; and
(d) if the decision is to register the
goods—include the goods in the Register and give the applicant a certificate of
registration.
(4) If:
(a) the therapeutic goods are not therapeutic
devices; and
(b) the evaluation of the goods for
registration has been completed;
the Secretary must:
(c) notify the applicant in writing of
his or her decision on the evaluation within 28 days of the making of the
decision and, in the case of a decision not to register the goods, of the
reasons for the decision; and
(d) if the decision is to register the
goods:
(i) notify the applicant
in writing that the goods will be included in the Register if the applicant
gives the Secretary the certificate required under subsection 26B(1); and
(ii) include the goods in
the Register and give the applicant a certificate of registration if the
applicant gives the Secretary the certificate required under subsection 26B(1).
To avoid doubt, if the applicant gives the Secretary the
certificate required under subsection 26B(1), the Secretary must include the
goods in the Register under subparagraph (d)(ii) without inquiring into
the correctness of the certificate.
(4A) Civil proceedings do not lie against the Secretary
(or a delegate of the Secretary) in respect of loss, damage or injury of any
kind suffered by another person as a result of the Secretary (or the delegate)
including therapeutic goods in the Register in reliance on a certificate
required under subsection 26B(1).
2 After paragraph 26(1)(a)
Insert:
(aa) if goods are not therapeutic
devices—the application is accompanied by the certificate required under
subsection 26B(1); and
3 After subsection 26(1)
Insert:
(1A) To avoid doubt, if:
(a) an application is made for the
listing of therapeutic goods in relation to a person in accordance with
section 23; and
(b) the application is accompanied by
the certificate required under subsection 26B(1); and
(c) the other requirements in
subsection (1) are met;
the Secretary must list the goods under
subsection (1) without inquiring into the correctness of the certificate.
(1B) Civil proceedings do not lie against the
Secretary (or a delegate of the Secretary) in respect of loss, damage or injury
of any kind suffered by another person as a result of the Secretary (or the
delegate) listing therapeutic goods in relation to a person in reliance on a
certificate required under subsection 26B(1).
4 After paragraph 26A(1)(a)
Insert:
(b) the application is accompanied by
the certificate required under subsection 26B(1); and
5 After subsection 26A(1)
Insert:
(1A) To avoid doubt, if:
(a) an application is made for the
listing of a medicine in relation to a person in accordance with
section 23; and
(b) the application is accompanied by
the certificate required under subsection 26B(1); and
(c) the other requirements in
subsection (1) are met;
the Secretary must list the medicine under
subsection (1) without inquiring into the correctness of the certificate.
(1B) Civil proceedings do not lie against the
Secretary (or a delegate of the Secretary) in respect of loss, damage or injury
of any kind suffered by another person as a result of the Secretary (or the
delegate) listing a medicine in relation to a person in reliance on a
certificate required under subsection 26B(1).
6 After section 26A
Insert:
26B
Certificates required in relation to patents
(1) The certificate required by this
subsection is either:
(a) a certificate to the effect that
the applicant, acting in good faith, believes on reasonable grounds that it is
not marketing, and does not propose to market, the therapeutic goods in a
manner, or in circumstances, that would infringe a valid claim of a patent that
has been granted in relation to the therapeutic goods; or
(b) a certificate to the effect that:
(i) a patent has been
granted in relation to the therapeutic goods; and
(ii) the applicant proposes
to market the therapeutic goods before the end of the term of the patent; and
(iii) the applicant has given
the patentee notice of the application for registration or listing of the
therapeutic goods under section 23.
The certificate must be signed by, or on behalf of, the
applicant and must be in a form approved by the Secretary.
(2) A person is guilty of an offence if:
(a) the person gives a certificate
required under subsection (1); and
(b) the certificate is false or
misleading in a material particular.
Maximum penalty: 1,000 penalty units.
(3) For the purposes of this section, a
patent is taken to have been granted in relation to therapeutic goods if
marketing the goods without the authority of the patentee would constitute an
infringement of the patent.
(4) In this section:
patent has the same meaning as in the Patents
Act 1990.
26C Certificates required in relation
to patent infringement proceedings
(1) This section applies if:
(a) a person gives a certificate
required under subsection 26B(1) in relation to therapeutic goods; and
(b) another person (the second
person) intends to commence proceedings under the Patents Act 1990 against
the person referred to in paragraph (1)(a) for infringement of a patent that
has been granted in relation to the therapeutic goods (the proceedings).
(2) The second person, before the date upon
which the proceedings are commenced, must give to the Secretary and to the
person referred to in paragraph (1)(a) the certificate required by subsection
(3).
(3) The certificate required by this
subsection is a certificate to the effect that the proceedings:
(a) are to be commenced in good faith;
and
(b) have reasonable prospects of
success; and
(c) will be conducted without
unreasonable delay.
The certificate must be signed by, or on behalf of, the
second person and must be in a form approved by the Secretary.
(4) For the purpose of paragraph (3)(b),
proceedings have reasonable prospects of success if:
(a) the second person had reasonable
grounds in all the circumstances known to the second person, or which ought
reasonably to have been known to the second person (in addition to the fact of
grant of the patent), for believing that he or she would be entitled to be
granted final relief by the court against the person referred to in paragraph
(1)(a) for infringement by that person of the patent; and
(b) the second person had reasonable grounds in all the circumstances known to the
second person, or which ought reasonably to have been known to the second
person (in addition to the fact of grant of the patent), for believing that
each of the claims, in respect of which infringement is alleged, is valid; and
(c) the proceedings are not otherwise
vexatious or unreasonably pursued.
(5) The person referred to in paragraph
(1)(a), with leave of the court, or the Attorney-General, may apply to a
prescribed court for an order that the second person pay to the Commonwealth a
pecuniary penalty if the second person gives a certificate required under
subsection (3) and:
(a) the certificate is false or
misleading in a material particular; or
(b) the second person breaches an
undertaking given in the certificate.
Maximum penalty: $10,000,000.
(6) When determining the extent of a
pecuniary penalty to be ordered pursuant to subsection (5), the court must take
into account:
(a) any profit obtained by the second
person; and
(b) any loss or damage suffered by any
person;
by reason of the second person exploiting the patent
during the proceedings.
(7) For the avoidance of doubt, subsection
(6) does not limit the matters the court may take into account when determining
a pecuniary penalty ordered pursuant to subsection (5).
(8) If:
(a) the second person has sought and
obtained in the proceedings an interlocutory injunction restraining the person
referred to in paragraph (1)(a) from infringing a patent; and
(b) section 26D does not apply; and
(c) a prescribed court declares that
the second person has given a certificate required under subsection (3); and
(d) a prescribed court declares that:
(i) the certificate is
false or misleading in a material particular; or
(ii) the second person has
breached an undertaking given in the certificate;
the prescribed court may, pursuant to this section, order
that the second person pay to the Commonwealth, a State or a Territory
compensation for any damages sustained or costs incurred by the Commonwealth, a
State or a Territory as a result of the grant of the interlocutory injunction.
(9) In this section:
prescribed court has the same meaning as in
the Patents Act 1990.
26D Requirements for interlocutory
injunction
(1) This section applies where:
(a) an applicant gives notice to a
patentee in accordance with subparagraph 26B(1)(b)(iii); and
(b) the patentee and/or its exclusive
licensee (in this section the party or parties is or are referred to as the patentee)
applies to a prescribed court for an interlocutory injunction to restrain the
applicant from marketing the therapeutic goods the subject of the application
on the ground that such conduct will constitute an infringement of its patent.
(2) An application for interlocutory relief
in accordance with subsection (1) may not be instituted unless the patentee has
first notified the Attorney-General of the Commonwealth, or of a State or of a
Territory, in writing of the application.
(3) The Attorney-General of the Commonwealth
shall be deemed to be a party to any proceedings commenced in accordance with
subsection (1) unless the Attorney-General gives written notice to the
prescribed court that he or she does not desire to be a party.
(4) If an interlocutory injunction is
granted pursuant to an application made as described in subsection (1) and:
(a) the patentee subsequently
discontinues the principal proceedings without the consent of the other parties
thereto; or
(b) the principal proceedings are
dismissed; and
(c) in either case, the prescribed
court declares that:
(i) the patentee did not
have reasonable grounds, in all the circumstances known to the patentee or
which ought reasonably have been known to the patentee:
(A) to
believe that it would be granted final relief by the prescribed court against
the applicant referred to in paragraph (1)(a) for infringement by that person
of the patent; or
(B) (in
addition to the fact of grant of the patent), for believing that each of the
claims, in respect of which infringement is alleged in the proceedings, would
have a reasonable prospect of being held to be valid if challenged by the
applicant referred to in paragraph (1)(a); or
(ii) the application for
the interlocutory injunction was otherwise vexatious or not reasonably made or
pursued;
the prescribed court may, in addition to any other relief
which it believes should be granted to any person, make any of the orders
described in subsection (5).
(5) If the prescribed court makes a
declaration pursuant to paragraph (4)(c), the prescribed court may, pursuant to
the usual undertaking as to damages given by the patentee to the prescribed
court to obtain the interlocutory injunction:
(a) assess and award compensation to
the applicant referred to in paragraph (1)(a) against whom the interlocutory
injunction was made:
(i) on the basis of an
account of the gross profits of the patentee arising from the sale by it in
Australia of the therapeutic goods the subject of the interlocutory injunction,
during the period of the interlocutory injunction, without requiring the said
applicant to establish or quantify its actual loss; or
(ii) on such other basis as
the court determines to be appropriate; and
(b) award to the Commonwealth
compensation for any damages sustained, or costs incurred, by it as a result of
the grant of the interlocutory injunction; and
(c) award to a State or a Territory
compensation for any damages sustained, or costs incurred, by it as a result of
the grant of the interlocutory injunction.
(6) In this section:
prescribed court has the same meaning as in
the Patents Act 1990.
7 Application of amendments
(1) The amendments made by this Schedule apply to
applications for registration or listing under section 23 of the Therapeutic
Goods Act 1989 made on or after the day on which this Schedule commences.
(2) The amendments made by item 6 apply to legal
proceedings commenced on or after the day on which this Schedule commences.
Schedule 8—Patents amendments
Patents Act 1990
1 Paragraph 59(b)
Omit all the words after “patentable invention”.
2 Paragraph 59(d)
Repeal the paragraph.
3 Application of amendments of section 59 of the Patents
Act 1990
The amendments of section 59 of the Patents Act 1990
made by this Schedule apply in relation to each patent application for a
standard patent:
(a) made after the commencement of
this Schedule; or
(b) made before the commencement of
this Schedule, but for which a patent has not been granted by the commencement
of this Schedule.
4 Subsection 104(3)
Repeal the subsection.
5 Paragraph 138(3)(c)
Repeal the paragraph.
Schedule 9—Copyright amendments
Part 1—Performers’ rights in sound recordings
Copyright Act 1968
1 Paragraph 22(3)(a)
After “sound recording”, insert “, other than a sound recording
of a live performance,”.
Note 1: The following heading to subsection 22(1) is
inserted “Literary, dramatic, musical or artistic works”.
Note 2: The following heading to subsection 22(3) is
inserted “Sound recordings”.
2 After subsection 22(3)
Insert:
(3A) For the purposes of this Act, the makers of
a sound recording of a live performance are:
(a) the person or persons who, at the
time of the recording, own the record on which the recording is made; and
(b) the performer or performers who
performed in the performance (other than a performer who is already covered by
paragraph (a)).
Note: A performer might be liable to pay
compensation under section 116AAA to a person who owns the record on which
the recording is made.
(3B) If:
(a) a sound recording of a live
performance is made; and
(b) a performer performs in that
performance under the terms of his or her employment by another person (the employer)
under a contract of service or apprenticeship;
then, for the purposes of paragraph (3A)(b), the
employer is taken to be a maker instead of that performer.
(3C) Subsection (3B) may be excluded or
modified by agreement between the performer and the employer.
Note 1: The following heading to subsection 22(4) is
inserted “Cinematograph films”.
Note 2: The following heading to subsection 22(5) is
inserted “Broadcasts and other communications”.
3 At the end of section 22
Add:
Definitions
(7) In this section:
live performance means:
(a) a performance (including an
improvisation) of a dramatic work, or part of such a work, including such a
performance given with the use of puppets; or
(b) a performance (including an
improvisation) of a musical work or part of such a work; or
(c) the reading, recitation or
delivery of a literary work, or part of such a work, or the recitation or
delivery of an improvised literary work; or
(d) a performance of a dance; or
(e) a performance of a circus act or a
variety act or any similar presentation or show; or
(f) a performance of an expression of
folklore;
being a live performance, whether in the presence of an
audience or otherwise.
performer in a live performance:
(a) means each person who contributed
to the sounds of the performance; and
(b) if the performance includes a
performance of a musical work—includes the conductor.
sound recording of a live performance means a
sound recording, made at the time of the live performance, consisting of, or
including, the sounds of the performance.
4 Section 84
Repeal the section, substitute:
84
Definitions
In this Part:
live performance means:
(a) a performance (including an
improvisation) of a dramatic work, or part of such a work, including such a
performance given with the use of puppets; or
(b) a performance (including an
improvisation) of a musical work or part of such a work; or
(c) the reading, recitation or delivery
of a literary work, or part of such a work, or the recitation or delivery of an
improvised literary work; or
(d) a performance of a dance; or
(e) a performance of a circus act or a
variety act or any similar presentation or show; or
(f) a performance of an expression of
folklore;
being a live performance, whether in the presence of an
audience or otherwise.
performer in a live performance:
(a) means each person who contributed
to the sounds of the performance; and
(b) if the performance includes a performance
of a musical work—includes the conductor.
qualified person means:
(a) an Australian citizen, an
Australian protected person or a person (other than a body corporate) resident
in Australia; or
(b) a body corporate incorporated
under a law of the Commonwealth or of a State.
sound recording of a live performance means a
sound recording, made at the time of the live performance, consisting of, or
including, the sounds of the performance.
5 Before section 97
Insert:
Subdivision A—Ownership of copyright in subject‑matter other than
works
6 Subsection 97(2)
Omit “the next succeeding subsection”, substitute
“subsection (3)”.
7 After subsection 97(2)
Insert:
(2A) If there is more than one owner of the
copyright in a sound recording of a live performance, the owners own the
copyright as tenants in common in equal shares.
8 At the end of Division 5 of Part IV
Add:
Subdivision B—Specific provisions relating to the ownership of copyright
in pre‑commencement sound recordings of live performances
100AA
Application
This Subdivision applies to a sound
recording of a live performance if:
(a) copyright subsists in the
recording on the day on which this section commences; and
(b) at least one person would become a
maker of the recording under paragraph 100AD(1)(b) or subsection 100AD(2).
100AB
Definitions
In this Subdivision:
former owner of the copyright in a sound
recording of a live performance means a person mentioned in paragraph
100AD(1)(a).
new owner of the copyright in a sound
recording of a live performance means the following people:
(a) a person who becomes a maker of a
sound recording under paragraph 100AD(1)(b);
(b) if subsection 100AD(2) applies—an
employer who becomes a maker of a sound recording under that subsection.
Note: Other expressions used in this Subdivision are
defined in section 84.
100AC
Application of sections 100AD and 100AE
Sections 100AD and 100AE have
effect subject to Parts VII and X.
100AD
Makers of pre‑commencement sound recordings of live performances
(1) For the purpose of section 100AE,
the makers of a sound recording of a live performance are:
(a) the person or persons who,
immediately before the commencement of this section, owned the copyright
subsisting in the recording; and
(b) the performer or performers who
performed in the performance (other than a performer who is already covered by
paragraph (a)).
Employer may be a maker of the sound recording
(2) If:
(a) a sound recording of a live
performance was made; and
(b) a performer performed in that
performance under the terms of his or her employment by another person (the employer)
under a contract of service or apprenticeship;
then, for the purposes of paragraph (1)(b), the
employer is taken to be a maker instead of that performer.
(3) Subsection (2) may be excluded or
modified by an agreement (whether made before or after the live performance)
between the performer and the employer.
100AE
Ownership of pre‑commencement copyright in sound recordings of live
performances
Ownership of the copyright
(1) On and after the day on which this
section commences, all makers of a sound recording of a live performance are
owners of any copyright subsisting in the recording by virtue of this Part.
Division of the ownership of the copyright
(2) The former owners of the copyright and
the new owners of the copyright each own half of the copyright as tenants in
common in 2 equal shares.
(3) The former owners own their half of the
copyright in the same proportions as the whole copyright was owned by them
immediately before the commencement of this section.
(4) The new owners own their half of the
copyright as tenants in common in equal shares.
(5) Subsections (3) and (4) do not limit
section 196.
(6) Subsection (3) does not otherwise
affect the terms on which the former owners own their half of the copyright.
Copyright to devolve if a new owner is not alive
(7) If a new owner is not alive on the day on
which this section commences, then, for the purposes of subsections (2)
and (4), that owner is replaced by the person to whom the copyright would have
devolved if the new owner had owned the copyright immediately before his or her
death. If the copyright would have devolved to more than one person, those
persons are to be treated as a single new owner for the purposes of subsections (2)
and (4).
100AF
Former owners may continue to do any act in relation to the copyright
(1) On and after the day on which this
section commences, a former owner of the copyright in a sound recording of a
live performance may:
(a) do an act comprised in the
copyright; or
(b) do any other act in relation to
the copyright;
as if each new owner of the copyright had granted a
licence or permission (however described) to the former owner to do the act.
Note: However, the former owner may still need to
obtain the consent of other former owners of the copyright before doing the
act.
(2) Subsection (1) applies to:
(a) the former owner’s licensees and
successors in title; and
(b) any persons who are authorised by
the former owner; and
(c) any persons who are authorised by
the former owner’s licensees or successors in title;
in the same way as it applies to the former owner.
(3) Subsections (1) and (2) may be
excluded or modified by an agreement (whether made before or after this section
commences) between the former owner and a new owner.
100AG
Actions by new owners of copyright
If a new owner of the copyright in a
sound recording of a live performance brings an action under this Act in
respect of the copyright, the new owner is not entitled to the remedies listed
in the table.
|
Actions under this Act
|
|
Item
|
In this case...
|
the new owner is not
entitled to:
|
|
1
|
the action is for an infringement of the copyright under
section 115
|
(a) damages (other than additional damages); or
(b) an account of profits
|
|
2
|
the action is for conversion or detention under
section 116
|
(a) damages (other than additional damages); or
(b) an account of profits; or
(c) any other pecuniary remedy (other than costs); or
(d) delivery up of an infringing copy
|
|
3
|
the action is brought under section 116A, 116B or
116C
|
(a) damages (other than additional damages); or
(b) an account of profits
|
100AH
References to the owner of the copyright in a sound recording
A new owner of the copyright in a sound
recording of a live performance is taken not to be the owner of the copyright
for the purposes of the following provisions:
(a) sections 107, 108 and 109 (in
Part IV);
(b) sections 119 and 133 (in
Part V);
(c) the definitions of licence
and licensor in subsection 136(1), and sections 150, 151,
152, 153E, 153F, 153G, 159 and 163A (in Part VI);
(d) section 183 (in
Part VII).
Note: A new owner of the copyright in a sound
recording of a live performance is not a relevant right holder
under section 135A, nor a relevant copyright owner under section 135ZB
or 135ZZI.
9 At the end of Division 7 of Part IV
Add:
113A
Agents may act on behalf of groups of performers
(1) This section applies in respect of all
members of a group of performers who have an interest in the copyright in a
sound recording of a live performance.
(2) All members of the group are taken to
have granted a licence or permission (however described) to a person:
(a) to do an act comprised in the
copyright; or
(b) to do any other act in relation to
the copyright;
if an agent of the group, acting within the scope of his
or her actual or apparent authority, has granted a licence or permission to the
person to do the act.
Note: The person may still need to obtain the
licence or permission of other owners of the copyright before doing the act.
113B
Consent to the use of a sound recording of a live performance
A person is taken to have been granted a
licence or permission (however described) by a performer to use a sound
recording of a live performance if:
(a) the performer has given his or her
consent to recording the performance for a particular purpose; and
(b) the recording is used for that
purpose in accordance with the terms of the consent.
Note: The person may still need to obtain the
consent of the other owners of the copyright in the sound recording of the live
performance before using the sound recording.
113C
Use of published sound recordings when owners cannot be found etc.
(1) An owner (the first owner)
of the copyright in a sound recording of a live performance that is a published
sound recording is taken to have been granted a licence or permission (however
described) by another owner of the copyright to do an act comprised in the
copyright, or to do any other act in relation to the copyright, if:
(a) the first owner has entered into
an agreement with another person to do the act; and
(b) the first owner, after making
reasonable inquiries, cannot discover the identity or location of the other
owner or a person representing the other owner.
Note: The first owner may still need to obtain a
licence or permission from any other owners of the copyright in the sound
recording of the live performance.
(2) If the first owner does the act, then the
first owner must hold the other owner’s share of any amount received in respect
of it on trust for 4 years after the day on which the agreement is entered into
(unless the amount is distributed to, or on behalf of, the other owner before
then).
(3) If during the 4 year period, the other
owner is identified and located, the first owner must distribute the amount
held on trust to, or on behalf of, the other owner. If at the end of the 4 year
period, the other owner remains unidentified or is not located, the first owner
may retain the amount.
(4) After initially making reasonable
inquiries, the first owner is not required to continue making reasonable
inquiries during the 4 year period.
(5) The other owner cannot prevent the first
owner doing the act comprised in the copyright during the term of the agreement
if the other owner is identified or located.
10 At the end of Division 2 of Part V
Add:
116AAA
Compensation for acquisition of property
(1) This section applies if, apart from this
section, subsections 22(3A) and 97(2) and (2A) would result in the acquisition
of property from a maker of a sound recording of a live performance by a
performer in the performance otherwise than on just terms.
(2) There is payable to the maker by the
performer such amount of compensation as is agreed on between those persons,
or, failing agreement, as is determined by a court of competent jurisdiction.
(3) Any damages or compensation recovered or
other remedy given in a proceeding that is commenced otherwise than under this
section is to be taken into account in assessing compensation payable in a
proceeding that is commenced under this section and that arises out of the same
event or transaction.
(4) Any compensation payable in a proceeding
that is commenced under this section is to be taken into account in assessing
any damages or compensation or other remedy to be awarded in a proceeding that
is commenced otherwise than under this section and that arises out of the same
event or transaction.
(5) In this section:
acquisition of property has the same meaning
as in paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in
paragraph 51(xxxi) of the Constitution.
maker of a sound recording of a live
performance means a person mentioned in paragraph 22(3A)(a).
performer in a live performance means the
following people:
(a) a person who becomes a maker of a
sound recording under paragraph 22(3A)(b);
(b) if subsection 22(3B) applies—an
employer who becomes a maker of a sound recording under that subsection.
11 At the end of section 123
Add:
Note: However, not all owners of the copyright are
entitled to an account of profits: see section 100AG.
12 At the end of section 124
Add:
Note: However, not all owners of the copyright are
entitled to damages (other than additional damages) or an account of profits:
see section 100AG.
13 Section 135ZB (at the end of the definition of relevant
copyright owner)
Add “, but does not include a new owner of the copyright in a
sound recording of a live performance within the meaning of Subdivision B of
Division 5 of Part IV”.
14 Section 135ZZI (at the end of the definition of relevant
copyright owner)
Add “, but does not include a new owner of the copyright in a
sound recording of a live performance within the meaning of Subdivision B of
Division 5 of Part IV”.
15 Application
The amendments made by items 1 to 7, 9 and 10 of this Part
apply to a sound recording made on or after the day on which this item
commences.
Note: The amendments made by the other items of this
Part apply to a sound recording of a live performance in which copyright
subsists on the day on which this item commences.
Part 2—Performers’ moral rights
Copyright Act 1968
16 Part IX (heading)
Repeal the heading, substitute:
Part IX—Moral rights of performers and of authors of literary,
dramatic, musical or artistic works and cinematograph films
17 Section 189 (definition of act of false
attribution)
Repeal the definition, substitute:
act of false attribution:
(a) in relation to an author’s moral
rights—has the meaning given by subsection 195AC(2); and
(b) in relation to a performer’s moral
rights—has the meaning given by subsection 195AHA(2).
18 Section 189 (definition of attributable act)
Repeal the definition, substitute:
attributable act:
(a) in relation to an author’s moral
rights—has the meaning given by subsection 193(2); and
(b) in relation to a performer’s moral
rights—has the meaning given by subsection 195ABA(2).
19 Section 189 (definition of attributor)
Repeal the definition, substitute:
attributor:
(a) in relation to an author’s moral
rights—has the meaning given by subsection 195AC(2); and
(b) in relation to a performer’s moral
rights—has the meaning given by subsection 195AHA(2).
20 Section 189
Insert:
copy record means a record so far as it
embodies:
(a) a recorded performance; or
(b) a substantial part of a recorded
performance;
being a record derived directly or indirectly from an
original record of the performance.
21 Section 189 (definition of deal)
Omit “Division 3”, substitute “Divisions 3 and 3A”.
22 Section 189 (definition of derogatory treatment)
Repeal the definition, substitute:
derogatory treatment:
(a) in relation to an author’s moral
rights—has the relevant meaning given by Division 4; and
(b) in relation to a performer’s moral
rights—has the meaning given by section 195ALB.
23 Section 189 (definition of infringing article)
Repeal the definition, substitute:
infringing article
means:
(a) in relation to an author’s moral
rights:
(i) an article that
embodies a literary, dramatic, musical or artistic work, or a cinematograph
film, whether or not the article bears or contains other material; or
(ii) a reproduction of, or
of an adaptation of, a literary, dramatic or musical work; or
(iii) a reproduction of an
artistic work; or
(iv) a copy of a
cinematograph film;
being a work or film in respect
of which a moral right of the author has been infringed, other than by
derogatory treatment not involving the material distortion or alteration of, or
the mutilation of, the work or film; and
(b) in relation to the moral rights of
a performer in a live performance:
(i) a copy record of the
live performance, where the making of the copy record has infringed the
performer’s right of attribution of performership; or
(ii) a record embodying the
live performance, where a person’s name is inserted or affixed on the record
and the inserting or affixing has infringed the performer’s right not to have performership
falsely attributed; or
(iii) a record embodying the
live performance, where the record also embodies sounds the making of which
have infringed the performer’s right not to have performership falsely
attributed; or
(iv) a record embodying the
live performance, being the live performance as affected by derogatory
treatment that has infringed the performer’s right of integrity of performership;
and
(c) in relation to the moral rights of
a performer in a recorded performance:
(i) a copy record of the
recorded performance, where the making of the copy record has infringed the
performer’s right of attribution of performership; or
(ii) a record embodying the
recorded performance, where a person’s name is inserted or affixed on the
record and the inserting or affixing has infringed the performer’s right not to
have performership falsely attributed; or
(iii) a copy record of the
recorded performance, where dealings with the copy as a copy of an unaltered
recorded performance have infringed the performer’s right not to have performership
falsely attributed; or
(iv) a record embodying the
recorded performance, being a record that incorporates derogatory treatment
that has infringed the performer’s right of integrity of performership.
24 Section 189 (definition of moral right)
Repeal the definition, substitute:
moral right means:
(a) in relation to an author:
(i) a right of attribution
of authorship; or
(ii) a right not to have
authorship falsely attributed; or
(iii) a right of integrity
of authorship; and
(b) in relation to a performer:
(i) a right of attribution
of performership; or
(ii) a right not to have performership
falsely attributed; or
(iii) a right of integrity
of performership.
25 Section 189 (definition of name)
Omit “Division 3”, substitute “Divisions 3 and 3A”.
26 Section 189
Insert:
original record means a record produced upon
the making of a sound recording of a live performance.
Note: The sound track of a cinematograph film is
treated as not being a sound recording: see section 23.
27 Section 189
Insert:
performance means a performance within the
meaning of Part XIA, so far as the performance consists of sounds.
28 Section 189
Insert:
performer in a performance:
(a) means each person who contributed
to the sounds of the performance; and
(b) in relation to a performance that
occurs outside Australia, does not include a person who is not a qualified
person at the time of the performance.
Note: See also section 191B, which deals with
the conductor of a musical performance.
29 Section 189
Insert:
performership means participation in a
performance, as the performer or one of the performers.
30 Section 189
Insert:
person representing the performer means a
person who, under subsection 195ANB(1) or (2), is entitled to exercise and
enforce a performer’s moral right.
31 Section 189
Insert:
qualified person has the same meaning as in
Part XIA.
32 Section 189
Insert:
recorded performance means a performance
embodied in a record so as to constitute a sound recording.
33 Section 189
Insert:
record embodying a performance means:
(a) an original record of a
performance; or
(b) a copy record of a performance.
34 Section 189
Insert:
right not to have performership falsely attributed
has the meaning given by Division 3A.
35 Section 189
Insert:
right of attribution of performership has the
meaning given by Division 2A.
36 Section 189
Insert:
right of integrity of performership has the
meaning given by Division 4A.
37 Section 189
Insert:
sound recording means a sound recording in
which copyright subsists.
38 Section 189
Insert:
staged, in relation to a live performance,
has the meaning given by section 191A.
39 After section 191
Insert:
191A Staging
a performance
For the purposes of this Part, a live
performance is staged by the person who makes the arrangements
necessary for the performance (including elements of the performance not
consisting of sounds) to take place.
191B
Conductor to be treated as a performer
If a performance of a musical work is
conducted by a conductor, then the sounds of the performance are to be treated
as having been made by the conductor (as well as by the persons who actually
made those sounds).
Note: As a consequence, the conductor will be able
to be treated as being one of the performers. Note, however, the qualified
person requirement in the definition of performer in
section 189.
40 At the end of section 192
Add:
(2) The moral rights of a performer in a live
performance or recorded performance are in addition to any other rights in
relation to the performance that the performer or anyone else has under this
Act.
41 After Division 2 of Part IX
Insert:
Division 2A—Right of attribution of performership
195ABA Performer’s
right of attribution of performership
(1) A
performer in a live performance or recorded performance has a right of
attribution of performership in respect of the performance.
(2) The performer’s right is the right to be
identified in accordance with this Division as a performer in the performance
if any of the acts (the attributable acts) mentioned in
section 195ABB are done in respect of the performance.
Note: If there is more than one performer in a
performance, then each performer has a right of attribution of performership:
see subsection 195AZQ(2).
195ABB
Acts giving rise to right of attribution of performership
(1) The attributable
acts for a live performance are the following:
(a) communicating the live performance
to the public;
(b) staging the live performance in
public.
Note: For the definition of staged,
see section 191A.
(2) The attributable
acts for a recorded performance are the following:
(a) making a copy record of the
recorded performance;
(b) communicating the recorded performance
to the public.
195ABC
Nature of the identification of performer
(1) Subject to
this section, a performer may be identified by any reasonable form of
identification.
(2) If:
(a) a performer has made known, either
generally or to a person who is required under this Part to identify the
performer, that the performer wishes to be identified in a particular way; and
(b) the identification of the
performer in that way is reasonable in the circumstances;
the identification is to be made in that way.
(3) If a performance is presented by
performers who use a group name, then identification by using the group name is
sufficient identification of the performers in the group.
195ABD
Identification of performer to be clear and reasonably prominent or audible
An identification of a performer must be
clear and reasonably prominent or reasonably audible.
195ABE
What is a reasonably prominent identification
When a copy record is made of a recorded
performance, an identification of a performer or group of performers is taken
to be reasonably prominent if it is included on each copy record of the
recorded performance in such a way that a person acquiring the copy record will
have notice of the identity of the performer or group.
42 After Division 3 of Part IX
Insert:
Division 3A—Right not to have performership falsely attributed
195AHA
Performer’s right not to have performership falsely attributed
(1) A performer in a live performance or
recorded performance has a right not to have performership falsely attributed.
(2) A performer’s right is the right not to
have a person (the attributor) do, in respect of the live
performance or recorded performance (as the case may be), any of the acts (the acts
of false attribution) mentioned in sections 195AHB and 195AHC.
Note: If there is more than one performer in a
performance, then each performer has a right not to have performership falsely
attributed: see subsection 195AZQ(3).
195AHB
Acts of false attribution of performership
Acts of false attribution for live performances
(1) For a live performance, it is an act of
false attribution for the stager of the performance, or a person authorised by
the stager, to state falsely, or imply falsely, to the audience or intended
audience immediately before the performance that:
(a) a person is, or will be, a
performer in the performance; or
(b) the performance is being, or will
be, presented by a particular group of performers.
Note: For the definition of staged,
see section 191A.
Example 1: The
stager of a live performance given by X and Y attributes the performance to A
and B. This is an act of false attribution in relation to both X and Y.
Example 2: The
stager of a live performance given by X and Y attributes the performance to X
and A. This is an act of false attribution in relation to both X and Y (even
though X is mentioned in the attribution).
(2) For a live performance, it is an act of
false attribution for the stager of the performance, or a person authorised by
the stager, to state falsely, or imply falsely, to the audience during the
performance that:
(a) a person is, was, or will be a
performer in the performance; or
(b) the performance is being, was, or
will be, presented by a particular group of performers.
(3) For a live performance, it is an act of
false attribution for the stager of the performance, or a person authorised by
the stager, to state falsely, or imply falsely, to the audience immediately
after the performance that:
(a) a person was a performer in the
performance; or
(b) a particular group of performers
presented the performance.
(4) However, doing an act mentioned in
subsection (1), (2) or (3) is only an act of false attribution if the
performance is in public or is communicated to the public. For this purpose,
any unauthorised communication to the public is to be disregarded.
Acts of false attribution for recorded
performances—individual performers
(5) For a recorded performance, each of the
following acts is an act of false attribution:
(a) to insert or affix, or authorise
the inserting or affixing of, a person’s name in or on a record embodying the
performance in such a way as to imply falsely that the person is a performer in
the performance;
(b) to deal with a record embodying
the performance if:
(i) a person’s name has
been inserted or affixed in or on the record as mentioned in
paragraph (a); and
(ii) the attributor knows
that the person is not a performer in the performance;
(c) to communicate the recorded
performance to the public as being a performance in which a person is a performer,
if the attributor knows that the person is not a performer in the performance.
Acts of false attribution for recorded
performances—groups of performers
(6) For a recorded performance, each of the
following acts is an act of false attribution:
(a) to insert or affix, or authorise
the inserting or affixing of, a group name in or on a record embodying the
performance in such a way as to imply falsely that the group are performers in
the performance;
(b) to deal with a record embodying
the performance if:
(i) a group name has been
inserted or affixed in or on the record as mentioned in paragraph (a); and
(ii) the attributor knows
that the group are not performers in the performance;
(c) to communicate the recorded
performance to the public as being a performance in which a group are
performers, if the attributor knows that the group are not performers in the
performance.
Silent performers
(7) It is not an act of false attribution of performership
to state that a performer who participated silently in a performance performed
in the performance.
Example: X and Y together present a cabaret act in which X
sings and Y dances silently. The “performance” for the purposes of this Part
consists only of the sounds made by X. It is not an act of false attribution in
respect of the performance to state or imply that Y was also a performer.
195AHC
Act of false attribution of performership of altered recorded performance
(1) If the work is a recorded performance
that has been altered by a person other than a performer in the performance, it
is an act of false attribution of performership in relation to the performer to
deal with a copy of the recorded performance as so altered, as being a copy of
the unaltered recorded performance, if, to the knowledge of the attributor, the
copy of the recorded performance is not a copy of the unaltered recorded
performance.
(2) Subsection (1) does not apply if:
(a) the effect of the alteration is
insubstantial; or
(b) the alteration was required by law
to be made, or was otherwise necessary to avoid a breach of any law.
43 After Division 4 of Part IX
Insert:
Division 4A—Right of integrity of performership
195ALA
Performer’s right of integrity of performership
(1) A
performer in a live performance or recorded performance has a right of
integrity of performership in respect of the performance.
(2) The performer’s right is the right not to
have the performance subjected to derogatory treatment.
Note: If there is more than one performer in a
performance, then each performer has a right of integrity of performership: see
subsection 195AZQ(4).
195ALB
Derogatory treatment of performance
In this Part:
derogatory treatment, in relation to a
performer in a live performance or recorded performance, means the doing, in
relation to the performance, of anything that results in a material distortion
of, the mutilation of, or a material alteration to, the performance that is
prejudicial to the performer’s reputation.
44 Before section 195AM
Insert:
Subdivision A—Duration and exercise of moral rights of authors
Note 1: The heading to section 195AM is altered by
inserting “author’s” after “Duration of”.
Note 2: The heading to section 195AN is altered by
inserting “author’s” after “Exercise of”.
45 At the end of Division 5 of Part IX
Add:
Subdivision B—Duration and exercise of moral rights of performers
195ANA
Duration of performer’s moral rights for recorded performances
(1) A performer’s right of attribution of performership
in respect of a recorded performance continues in force until copyright ceases
to subsist in the recorded performance.
(2) A performer’s right not to have performership
falsely attributed in respect of a recorded performance continues in force
until copyright ceases to subsist in the recorded performance.
(3) A performer’s right of integrity of performership
in respect of a recorded performance continues in force until the performer
dies.
195ANB
Exercise of performer’s moral rights
(1) If a
performer in a live performance or recorded performance dies, the performer’s
moral rights in respect of the performance may be exercised and enforced by his
or her legal personal representative.
(2) If the affairs of a performer in a live
performance or recorded performance are lawfully administered by another person
(except under a law for the relief of bankrupt or insolvent debtors), the
performer’s moral rights may be exercised and enforced by the person
administering his or her affairs.
(3) Subject to this section, a moral right in
respect of a live performance or recorded performance is not transmissible by
assignment, by will, or by devolution by operation of law.
(4) If there are 2 or more performers in a
live performance or recorded performance, then the performers may enter into a
written co‑performership agreement by which each of them agrees not to
exercise his or her right of integrity of performership in respect of the live
performance or recorded performance, as the case may be, except jointly with
the other performer or performers.
(5) A co‑performership agreement has
effect according to its terms.
46 Before section 195AO
Insert:
Subdivision A—Infringement of moral rights of authors
47 Section 195AO
Omit “Division” (first occurring), substitute “Subdivision”.
48 Section 195AP
Omit “Division”, substitute “Subdivision”.
49 Subsection 195AQ(1)
Omit “Division”, substitute “Subdivision”.
50 Section 195AVA
After “moral rights”, insert “in respect of a work”.
51 Section 195AVB
After “moral rights”, insert “in respect of a work”.
52 At the end of Division 6 of Part IX
Add:
Subdivision B—Infringement of moral rights of performers
195AXA
Infringement of right of attribution of performership
Subject
to this Subdivision, a person infringes a performer’s right of attribution of performership
in respect of a live performance or recorded performance if the person does, or
authorises the doing of, an attributable act in respect of the performance
without the identification of the performer in accordance with Division 2A
as a performer in the performance.
195AXB
Infringement of right not to have performership falsely attributed
Subject
to this Subdivision, a person infringes a performer’s right not to have performership
falsely attributed if the person does an act of false attribution in respect of
the performance.
195AXC
Infringement of right of integrity of performership
(1) This section has effect subject to this
Subdivision.
(2) A person infringes a performer’s right of
integrity of performership in respect of a live performance or recorded
performance if the person subjects the performance, or authorises the
performance to be subjected, to derogatory treatment.
(3) If a live performance, as affected by
derogatory treatment, has become a recorded performance, then a person
infringes a performer’s right of integrity of performership in respect of the
live performance if the person does any of the following in respect of the
recorded performance:
(a) makes a copy record of the
recorded performance;
(b) communicates the recorded
performance to the public;
(c) causes the recorded performance to
be heard in public.
(4) If a recorded performance has been
subjected to derogatory treatment, then a person infringes a performer’s right
of integrity of performership in respect of the recorded performance if the
person does any of the following in respect of the recorded performance (as
affected by the derogatory treatment):
(a) makes a copy record of the
recorded performance;
(b) communicates the recorded
performance to the public;
(c) causes the recorded performance to
be heard in public.
195AXD
No infringement of right of attribution of performership if it was reasonable
not to identify the performer
(1) A person who does, or authorises the
doing of, an attributable act in respect of a live performance or recorded performance
does not, because a performer in the performance is not identified, infringe
the performer’s right of attribution of performership in respect of the
performance if the person establishes that it was reasonable in all the
circumstances not to identify the performer.
(2) The matters to be taken into account in
determining for the purposes of subsection (1) whether it was reasonable
in particular circumstances not to identify a performer in a live performance
or recorded performance include the following:
(a) the nature of the performance;
(b) the purpose for which the
performance is used;
(c) the manner in which the
performance is used;
(d) the context in which the
performance is used;
(e) any practice, in the industry in
which the performance is used, that is relevant to the performance or to the
use of the performance;
(f) any practice contained in a
voluntary code of practice, in the industry in which the performance is used,
that is relevant to the performance or to the use of the performance;
(g) any difficulty or expense that
would have been incurred as a result of identifying the performer;
(h) whether the performer participated
in the performance in the course of the employment of the performer.
Note: For example, a performance may be used to
attract custom in a hotel or restaurant.
195AXE
No infringement of right of integrity of performership if derogatory treatment
or other action was reasonable
(1) A person does not, by subjecting a live
performance or recorded performance to derogatory treatment, or by authorising
a live performance or recorded performance to be subjected to derogatory
treatment, infringe a performer’s right of integrity of performership in
respect of the performance if the person establishes that it was reasonable in
all the circumstances to subject the performance to the treatment.
(2) The matters to be taken into account in
determining for the purposes of subsection (1) whether it was reasonable
in particular circumstances to subject a live performance or recorded
performance to derogatory treatment include the following:
(a) the nature of the performance;
(b) the purpose for which the
performance is used;
(c) the manner in which the
performance is used;
(d) any practice, in the industry in
which the performance is used, that is relevant to the performance or to the
use of the performance;
(e) any practice contained in a
voluntary code of practice, in the industry in which the performance is used,
that is relevant to the performance or to the use of the performance;
(f) whether the performer who alleges
that the treatment was derogatory participated in the performance in the course
of the employment of the performer;
(g) whether the treatment was required
by law or was otherwise necessary to avoid a breach of any law.
Note: For example, a performance may be used to
attract custom in a hotel or restaurant.
(3) A person who:
(a) does an act referred to in
subsection 195AXC(3) in respect of a live performance that has been subjected
to derogatory treatment; or
(b) does an act referred to in
subsection 195AXC(4) in respect of a recorded performance that has been
subjected to derogatory treatment;
does not, by doing that act, infringe a performer’s right
of integrity of performership in respect of the performance if the person
establishes that it was reasonable in all the circumstances to do that act.
195AXF
Infringement by importation for sale or other dealing
(1) A performer’s moral right in respect of a
live performance or recorded performance is infringed by a person who imports
an article into Australia for the purpose of dealing with the article if the
importer knew, or ought reasonably to have known, that, if the article had been
made in Australia, it would have been an infringing article.
(2) In subsection (1):
dealing with does not include distributing
except where the proposed distribution is for the purposes of sale.
195AXG
Infringement by sale and other dealings
(1) A performer’s moral right in respect of a
live performance or recorded performance is infringed by a person who, in
Australia, deals with an article if the person knew, or ought reasonably to
have known, that the article was an infringing article or, in respect of an
imported article, would, if it had been made in Australia, have been an infringing
article.
(2) In subsection (1):
deals with does not include:
(a) distributes, except where the
distribution is for the purposes of sale; or
(b) deals with by means of a dealing
covered by paragraph 195AHB(5)(b) or (6)(b).
195AXH
Matters to be taken into account
In determining whether a person has
authorised the doing of an act that is an infringement of moral rights in a
live performance or recorded performance, the matters that must be taken into
account include the following:
(a) the extent (if any) of the
person’s power to prevent the doing of the act concerned;
(b) the nature of any relationship
existing between the person and the person who did the act concerned;
(c) whether the person took any
reasonable steps to prevent or avoid the doing of the act, including whether
the person complied with any relevant industry codes of practice.
195AXI
Communication by use of certain facilities
A person (including a carrier or
carriage service provider) who provides facilities for making, or facilitating
the making of, a communication is not taken to have authorised the doing of an
act that is an infringement of moral rights in a live performance or recorded
performance merely because another person uses the facilities so provided to do
such an act.
195AXJ
Performer’s consent to act or omission
(1) It is not
an infringement of a performer’s moral right in respect of a live performance
or recorded performance to do, or omit to do, something if the act or omission
is within the scope of a written consent given by the performer or a person
representing the performer.
Note: The consent of one performer does not affect
the moral rights of any other performer: see subsection 195AZQ(5).
(2) A consent
may be given in relation to all or any acts or omissions occurring before or
after the consent is given.
(3) A consent may be given in relation to:
(a) a specified performance or
specified performances occurring before the consent is given; or
(b) a performance or performances of a
particular description:
(i) that have not yet
occurred; or
(ii) that are in the course
of occurring.
(4) A consent may be given by an employee for
the benefit of his or her employer in relation to all performances in which the
employee is to be a performer in the course of his or her employment.
(5) A consent given for the benefit of the
owner or prospective owner of copyright in the recorded performance or recorded
performances to which the consent relates is presumed, unless the contrary
intention appears in the consent instrument, to extend to his or her licensees
and successors in title, and to any persons who are authorised by the owner or
prospective owner, or by such a licensee or successor in title, to do acts
comprised in the copyright.
(6) Subsections (2) to (5), inclusive,
do not limit the operation of subsection (1).
195AXK
Consent invalidated by duress or false or misleading statements
(1) If a person applies duress to a performer
or, if a performer is represented by a person, to the person representing the performer,
in connection with the giving of a consent for the purposes of
section 195AXJ, the consent does not have any effect.
(2) If:
(a) a person makes a statement to
another person; and
(b) the person makes the statement
knowing:
(i) that the statement is
false or misleading in a material particular; or
(ii) that a matter or thing
has been omitted from the statement without which the statement is false or
misleading in a material particular; and
(c) the person makes the statement
with the intention of persuading the other person to give, or not to give, a
consent for the purposes of section 195AXJ;
the consent does not have any effect.
195AXL
Acts or omissions outside Australia
It is not an infringement of a
performer’s moral right in respect of a live performance or recorded
performance to do, or omit to do, something outside Australia.
53 Before section 195AY
Insert:
Subdivision A—Remedies for infringement of moral rights of authors
54 Section 195AY
Omit “Division” (wherever occurring), substitute “Subdivision”.
55 Sections 195AZB and 195AZC
Repeal the sections.
Note 1: The heading to section 195AZ is altered by
inserting “author’s” after “infringement of”.
Note 2: The heading to section 195AZA is altered by
inserting “author’s” after “infringement of”.
Note 3: The heading to section 195AZE is altered by
inserting “author’s” after “subsistence of”.
56 At the end of Division 7 of Part IX
Add:
Subdivision B—Remedies for infringement of moral rights of performers
195AZGA
Definition etc.
(1) In this Subdivision:
action means a proceeding of a civil nature
between parties, and includes a counterclaim.
(2) In the application of this Subdivision in
relation to a counterclaim, references to the defendant are taken to be
references to the plaintiff.
195AZGB
Actions for infringement of performer’s moral rights
If a person infringes any of the moral
rights of a performer in respect of a live performance or recorded performance,
then the performer or a person representing the performer may bring an action
in respect of the infringement, subject to any co‑performership agreement
in force under section 195ANB to which the performer is a party.
195AZGC
Remedies for infringements of performer’s moral rights
(1) Subject to section 203, the relief
that a court may grant in an action for an infringement of any of a performer’s
moral rights in respect of a live performance or recorded performance includes
any one or more of the following:
(a) an injunction (subject to any
terms that the court thinks fit);
(b) damages for loss resulting from
the infringement;
(c) a declaration that a moral right
of the performer has been infringed;
(d) an order that the defendant make a
public apology for the infringement;
(e) an order that any false
attribution of performership, or derogatory treatment, of the performance be
removed or reversed.
(2) In exercising its discretion as to the
appropriate relief to be granted, the court may take into account any of the
following:
(a) whether the defendant was aware,
or ought reasonably to have been aware, of the performer’s moral rights;
(b) the effect on the performer’s
reputation resulting from any damage to the performance;
(c) the number, and categories, of
people who have heard the performance;
(d) anything done by the defendant to
mitigate the effects of the infringement;
(e) if the moral right that was
infringed was a right of attribution of performership—any cost or difficulty
that would have been associated with identifying the performer;
(f) any cost or difficulty in
removing or reversing any false attribution of performership, or derogatory
treatment, of the performance.
(3) In deciding whether or not to grant an
injunction under subsection (1), the court must consider whether the
parties have made any attempt to negotiate a settlement of the action and
whether it should adjourn the hearing or further hearing of the action for the
purpose of giving the parties an appropriate opportunity to negotiate a
settlement, whether through a process of mediation or otherwise.
(4) If, after the death of a performer, in
respect of an act done in a live performance or recorded performance, damages
are recovered under this section by the legal personal representative of the
performer, those damages devolve as if they formed part of the performer’s
estate and as if the right of action in respect of the doing of the act had
subsisted, and had been vested in the performer, immediately before his or her
death.
Note: Subsection (4) does not apply in relation
to the right of integrity of performership, which ends on the performer’s
death: see section 195ANA.
195AZGD
Presumption as to subsistence of copyright
In an action brought under this Part for
an infringement of a moral right in respect of a recorded performance,
copyright is presumed to subsist in the recorded performance if the defendant
does not put in issue the question whether copyright subsists in the recorded
performance.
195AZGE
Presumption as to subsistence of performer’s moral rights
(1) In an
action brought under this Part for an infringement of a moral right in respect
of a recorded performance, if copyright is presumed or proved to have subsisted
in the recorded performance when the infringement is alleged to have occurred,
then the moral right is presumed to have subsisted in the recorded performance
at that time.
(2) This
section has effect subject to subsection 195ANA(3).
195AZGF
Presumptions in relation to performership
(1) If a name purporting to be the name of a
performer appears on a record embodying a performance so as to indicate that
the person was a performer in the performance, then, in an action brought under
this Part, the person whose name so appeared is, if it was his or her true name
or a name by which he or she was commonly known, presumed, unless the contrary
is established, to be a performer in the performance.
(2) If a name purporting to be the name of a
group of performers appears on a record embodying a performance so as to
indicate that the group performed in the performance, then, in an action
brought under this Part, the group whose name so appeared is, if it was a name
by which the group was commonly known, presumed, unless the contrary is
established, to have performed in the performance.
Subdivision C—Miscellaneous
195AZGG
Saving of other rights and remedies
(1) Subject to this section, this Part does
not affect any right of action or other remedy, whether civil or criminal, in
proceedings brought otherwise than under this Part.
(2) Any damages recovered in proceedings
brought under this Part are to be taken into account in assessing damages in
proceedings brought otherwise than under this Part and arising out of the same
event or transaction.
(3) Any damages recovered in proceedings
brought otherwise than under this Part are to be taken into account in
proceedings brought under this Part and arising out of the same event or
transaction.
195AZGH
Jurisdiction of courts
(1) The jurisdiction of the Supreme Court of
a State or Territory in a matter arising under this Part is to be exercised by
a single Judge of the Court.
(2) Subject to subsection (3), a
decision of a court of a State or Territory (however constituted) under this
Part is final.
(3) An appeal lies from a decision of a court
of a State or Territory under this Part:
(a) to the Federal Court of Australia;
or
(b) by special leave of the High
Court, to the High Court.
(4) The Federal Court of Australia has
jurisdiction with respect to matters arising under this Part.
(5) The Federal Magistrates Court has
jurisdiction with respect to matters arising under this Part.
57 Before section 195AZH
Insert:
Subdivision A—Miscellaneous provisions about moral rights of authors
58 At the end of Division 8 of Part IX
Add:
Subdivision B—Miscellaneous provisions about moral rights of performers
195AZP
Parts of performances
Moral rights in respect of a live
performance or recorded performance apply in relation to the whole or a
substantial part of the performance.
195AZQ
Performances that have more than one performer
(1) This section applies to a live
performance or recorded performance that has more than one performer.
(2) A performer’s right of attribution of performership
in respect of the performance is a right of the performer to be identified as a
performer.
Example: If X and Y are the performers in a performance,
then each of them has the right to be identified. However, there is no
infringement of X’s moral right if Y is not identified (and vice versa).
Note: See also subsection 195ABC(3), which relates
to the use of group names.
(3) An act of false attribution of performership
in respect of the performance infringes each performer’s right not to have performership
falsely attributed.
Example: X and Y are the performers in a performance that
is falsely attributed to X and Z. This false attribution infringes X’s moral
right and Y’s moral right.
(4) The right of integrity of performership
in respect of the performance is a right of each performer.
Example: X and Y are the performers in a performance. The
performance is subjected to derogatory treatment that is prejudicial to X’s
reputation but not to Y’s reputation. The result is an infringement of X’s
right of integrity of performership but not an infringement of Y’s right of
integrity of performership.
(5) The consent of one performer to any act
or omission affecting his or her moral rights in respect of the performance
does not affect the moral rights of any other performer in respect of the
performance.
195AZR
Application
(1) Moral rights in respect of a live
performance only subsist in a live performance that occurs after the
commencement of this section.
(2) Moral rights in respect of a recorded
performance only subsist if the live performance concerned occurs after the
commencement of this section.
Part 3—Performers’ protection
Copyright Act 1968
59 Subsection 10(1) (at the end of the definition of communicate)
Add “, including a performance or live performance within the
meaning of this Act”.
60 Subsection 248A(1) (paragraphs (a) and (b) of the
definition of exempt recording)
Repeal the paragraphs, substitute:
(a) an indirect cinematograph film of
a performance, being a film made solely for the purpose of the private and
domestic use of the person who made it;
(aa) an indirect sound recording of a
performance, being a recording that is a fair dealing with the performance for
the purpose of research or study;
(b) an indirect cinematograph film of
a performance, being a film made solely for the purpose of use in scientific
research;
61 Subsection 248A(1) (paragraphs (c), (d) and (e) of
the definition of exempt recording)
Omit “an indirect sound recording or an indirect cinematograph
film of a performance, being a sound recording or film”, substitute “an
indirect cinematograph film of a performance, being a film”.
62 Subsection 248A(1) (paragraph (f) of the definition
of exempt recording)
Omit “sound recording or”.
63 Subsection 248A(1) (after paragraph (f) of the
definition of exempt recording)
Insert:
(fa) a direct or indirect sound
recording of a performance, being a recording that is a fair dealing with the
performance:
(i) for the purpose of
criticism or review, whether of that performance or another performance; or
(ii) for the purpose of, or
associated with, the reporting of news in a newspaper, magazine or similar
periodical; or
(iii) for the purpose of, or
associated with, the reporting of news by means of a communication or in a
cinematograph film;
64 Subsection 248A(1) (after paragraph (j) of the
definition of exempt recording)
Insert:
(ja) a copy of a sound recording
referred to in paragraph (aa), (fa) or (g), being a copy made solely for a
purpose referred to in any of those paragraphs;
65 Subsection 248A(1) (paragraph (k) of the definition
of exempt recording)
Omit “sound recording or”.
66 Subsection 248A(1) (after subparagraph (n)(i) of the
definition of exempt recording)
Insert:
(ia) if the copy is of a
sound recording—solely for a purpose referred to in paragraph (aa), (fa)
or (g); or
67 Subsection 248A(1) (subparagraph (n)(ii) of the
definition of exempt recording)
Before “solely”, insert “if the copy is of a cinematograph
film—”.
68 Subsection 248A(1) (definition of indirect)
Omit “broadcast, or a re‑broadcast,”, substitute
“communication”.
69 Subsection 248A(1) (definition of performance)
Repeal the definition, substitute:
performance means:
(a) a performance (including an
improvisation) of a dramatic work, or part of such a work, including such a
performance given with the use of puppets; or
(b) a performance (including an
improvisation) of a musical work or part of such a work; or
(c) the reading, recitation or
delivery of a literary work, or part of such a work, or the recitation or
delivery of an improvised literary work; or
(d) a performance of a dance; or
(e) a performance of a circus act or a
variety act or any similar presentation or show; or
(f) a performance of an expression of
folklore;
being a live performance:
(g) that is given in Australia,
whether in the presence of an audience or otherwise; or
(h) that is given by one or more
qualified persons (even if it is also given by one or more persons who are not
qualified persons), whether in the presence of an audience or otherwise.
70 Subsection 248A(1)
Insert:
performer, in relation to a performance that
is given outside Australia, does not include a person who is not a qualified
person at the time of the performance.
71 After subsection 248A(1)
Insert:
(1A) For the purposes of paragraph (aa) of
the definition of exempt recording, in determining whether a
recording is a fair dealing with a performance for the purpose of research or
study, regard must be had to the following matters:
(a) the purpose and character of the
recording;
(b) the nature of the performance;
(c) the possibility of obtaining an
authorised recording of the performance within a reasonable time at an ordinary
commercial price;
(d) the effect of the recording upon
the potential market for, or the value of, authorised recordings of the
performance;
(e) if only part of the performance is
recorded—the amount and substantiality of the part recorded when compared to
the whole performance.
72 Section 248B
Omit “sound recording or”.
73 After subsection 248C(1)
Insert:
(1A) A sound recording, or a copy of a sound
recording, that is an exempt recording because it was made for a purpose
referred to in paragraph (aa) or (fa) of the definition of exempt
recording in subsection 248A(1) ceases to be an exempt recording if it
is used for any other purpose without the authority of the performer.
74 Subsection 248C(2)
Omit “A sound recording or cinematograph film, or a copy of such
a recording or film,”, substitute “A cinematograph film, or a copy of a
cinematograph film,”.
75 Section 248D
Repeal the section, substitute:
248D
Private and domestic use
For the purposes of this Part, a
cinematograph film is taken not to have been made for the private and domestic
use of the person who made it if it is made for the purpose of:
(a) selling it, letting it for hire,
or by way of trade offering or exposing it for sale or hire; or
(b) distributing it, whether for the
purpose of trade or otherwise; or
(c) by way of trade exhibiting it in
public; or
(d) broadcasting the film; or
(e) causing the film to be seen or
heard in public.
76 Paragraph 248G(1)(b)
Omit “broadcasts or re‑broadcasts the performance”,
substitute “communicates the performance to the public”.
77 Subsection 248G(3)
Omit “broadcasts or re‑broadcasts an authorised recording
of a performance”, substitute “communicates an authorised recording of a
performance to the public”.
78 At the end of section 248J
Add:
(4) If:
(a) a performer brings an action under
this section that relates to a recording of a performance; and
(b) the relief granted in the action
consists of or includes damages; and
(c) the performer has already been
granted damages in an action under another section of this Act in relation to
an infringement of his or her copyright in the recording; and
(d) the action referred to in
paragraph (c) arose out of the same event or transaction as the action
referred to in paragraph (a);
the amount of any damages referred to in
paragraph (b) that, apart from this subsection, would be awarded to the
performer is to be reduced by the amount of the damages referred to in
paragraph (c).
(5) If:
(a) a performer brings an action under
another section of this Act that relates to an infringement of his or her
copyright in a recording of a performance; and
(b) the relief granted in the action
consists of or includes damages; and
(c) the performer has already been
granted damages in an action under this section in relation to the performance;
and
(d) the action referred to in
paragraph (c) arose out of the same event or transaction as the action
referred to in paragraph (a);
the amount of any damages referred to in
paragraph (b) that, apart from this subsection, would be awarded to the
performer is to be reduced by the amount of the damages referred to in
paragraph (c).
79 Subsection 248P(3)
Omit “broadcast or re‑broadcast the performance”,
substitute “communicate the performance to the public”.
80 After subsection 248P(7A)
Insert:
(7B) A person who makes an indirect recording
solely for the purpose of his or her private and domestic use without the
authority of the performer does not, by doing so, contravene subsection (2).
Note: A defendant bears an evidential burden in
relation to the matter in subsection (7B) (see subsection 13.3(3) of the Criminal
Code).
81 Subsection 248P(8)
Omit “broadcasts or re‑broadcasts an authorised recording
of a performance”, substitute “communicates an authorised recording of a
performance to the public”.
82 After paragraph 248U(1)(a)
Insert:
(aa) so that the provisions apply in
relation to recordings, made in that country, of performances in like manner as
those provisions apply in relation to recordings of performances given in Australia;
(ab) so that the provisions apply in
relation to broadcasts, made in that country, of performances in like manner as
those provisions apply in relation to broadcasts of performances given in Australia;
(ac) so that the provisions apply in
relation to recordings, made by persons who are citizens, nationals or
residents of that country, of performances in like manner as those provisions
apply in relation to recordings of performances given in Australia;
83 Subsection 248V(1)
Omit “(whether the lack of protection relates to the nature of
the performance or the nationality, citizenship or country of residence of its
performer, or all of those matters)”, substitute “(whether the lack of
protection relates to all or any of the ways that the provisions may be applied
by the regulations under subsection 248U(1))”.
84 Application
The amendments made by this Part apply to acts done, in respect
of a performance, within the protection period of the performance after the day
on which this item commences (even if the performance was given before that
day).
Part 4—Copying and communicating broadcasts of performances
Copyright Act 1968
85 Section 135A
Insert:
performance has the same meaning as in
Part XIA.
86 Section 135A
Insert:
performer has the same meaning as in
Part XIA.
87 Section 135A (definition of relevant copyright
owner)
Repeal the definition.
88 Section 135A
Insert:
relevant right holder means:
(a) the owner of the copyright in a
work, a sound recording or a cinematograph film (other than a new owner of the
copyright in a sound recording of a live performance as defined in
section 100AB); or
(b) a performer in a performance.
89 After subsection 135E(1)
Insert:
(1A) For the purposes of Part XIA, each
performer of a performance is taken to have authorised an administering body,
or a person on behalf of an administering body, to make or communicate a copy
of a broadcast of the performance if the following paragraphs are satisfied:
(a) a remuneration notice, given by or
on behalf of the administering body to the collecting society, is in force;
(b) if the copy or communication is
made by, or on behalf of, a body administering an educational institution—the
copy or communication is made solely for the educational purposes of the
institution or of another educational institution;
(c) if the copy or communication is
made by, or on behalf of, a body administering an institution assisting persons
with an intellectual disability—the copy or communication is made solely for
the purposes of use in the provision of assistance to persons with an
intellectual disability by the institution or by another similar institution;
(d) the administering body complies
with subsection 135K(1) or (3), or section 135KA, as the case requires, in
relation to the copy or communication.
Note: The effect of this subsection is that no right
of action and no offence occurs in respect of the copy or communication under
Part XIA (performers’ protection).
90 Subsection 135E(2)
After “subsection (1)” (first occurring), insert “or (1A)”.
91 Paragraph 135E(2)(a)
After “paragraph (1)(b) or (c)”, insert “or (1A)(b) or (c)”.
92 Subsection 135E(2)
After “subsection (1)” (second occurring), insert “or (1A)”.
93 After subsection 135F(1)
Insert:
(1A) For the purposes of Part XIA, each
performer of a performance is taken to have authorised the making of a preview
copy of a broadcast of the performance.
Note: The effect of this subsection is that no right
of action and no offence occurs in respect of the preview copy under
Part XIA (performers’ protection).
94 Subsection 135F(5)
After “subsection 135E(1)”, insert “or (1A)”.
95 Subsection 135F(5)
After “paragraph 135E(1)(b) or (c)”, insert “or (1A)(b) or (c),
as the case requires”.
96 Subsection 135F(6)
Omit “subsection (1) does”, insert “subsections (1) and
(1A) do”.
97 At the end of section 135F
Add:
(8) For the purposes of Part XIA, each
performer in a performance is taken to have authorised a communication of a
preview copy of a broadcast of the performance if:
(a) the communication is made solely
to enable an administering body to decide whether or not that copy should be
retained:
(i) for the educational
purposes of the institution administered by it; or
(ii) for use in the provision
of assistance to persons with an intellectual disability by the institution
administered by it; and
(b) the communication is made only to
the extent necessary for the purpose mentioned in paragraph (a); and
(c) the communication is made within
the preview period.
Note: The effect of this subsection is that no right
of action and no offence occurs in respect of the communication of the preview
copy under Part XIA (performers’ protection).
98 Paragraph 135H(2)(a)
After “works,”, insert “performances,”.
99 Subsections 135J(5) and 135JA(7)
Omit “subsections 135E(1) and 135F(1)”, substitute
“sections 135E and 135F”.
100 Subparagraph 135KA(a)(i)
After “copyright”, insert “or performers’”.
101 Subsection 135P(3)
Omit “relevant copyright owners” (wherever occurring), substitute
“relevant right holders”.
102 Paragraph 135Q(b)
Omit “relevant copyright owners”, substitute “relevant right
holders”.
103 At the end of section 135Z
Add:
(2) Nothing in this Part affects the right of
a performer in a performance included in a broadcast to authorise an
administering body:
(a) to make, or cause to be made, a
sound recording or a cinematograph film of the performance; and
(b) to communicate, or cause to be
communicated, that recording or film.
Note: The heading to section 135Z is altered by
omitting “Relevant copyright owner” and substituting “Relevant right
holder”.
104 At the end of subsection 248G(1)
Add:
Note: An educational or other institution can copy
and communicate a broadcast of a performance without the authority of the
performer in some circumstances: see sections 135E and 135F.
105 At the end of subsection 248P(8)
Add:
Note 1: A defendant bears an evidential burden in
relation to the matter in subsection (8) (see subsection 13.3(3) of the Criminal
Code).
Note 2: An educational or other institution can also
copy and communicate a broadcast of a performance without contravening this
section in some circumstances: see sections 135E and 135F.
106 Application
The amendments made by this Part apply in respect of copies of
broadcasts, or communications of broadcasts, made after the day on which this
item commences (even if the performance concerned was given before that day).
Part 5—Duration of copyright in photographs
Copyright Act 1968
107 Subsection 33(2)
Repeal the subsection, substitute:
(2) Subject to this section, copyright that
subsists in a literary, dramatic, musical or artistic work by virtue of this
Part continues to subsist until the end of 50 years after the end of the
calendar year in which the author of the work died.
108 Subsection 33(6)
Repeal the subsection.
109 Subsection 34(1)
Repeal the subsection, substitute:
(1) Subject to subsection (2), if the
first publication of a literary, dramatic, musical or artistic work is
anonymous or pseudonymous, any copyright subsisting in the work by virtue of
this Part continues to subsist until the end of the period of 50 years after
the end of the calendar year in which the work was first published.
110 Subsection 34(2)
Omit “The last preceding subsection”, substitute
“Subsection (1)”.
111 Subsection 34(2)
Omit “the expiration”, substitute “the end”.
112 Subsection 51(1)
Omit “the expiration of the calendar year in which the author of
a literary, dramatic or musical work, or of an artistic work being a photograph
or engraving,”, substitute “the end of the calendar year in which the author of
a literary, dramatic, musical or artistic work”.
113 Subsection 81(3)
Omit “sections 33 and 51”, substitute “section 33”.
Note: This item omits an incorrect reference to a
section.
114 At the end of section 127
Add:
(4) However, if the owner of the material or
apparatus was a body corporate, then paragraph (3)(a) only applies if the
presumption is required to determine the ownership of the copyright in the
photograph.
Note: For example, the presumption does not apply if
it is required to determine the duration of the copyright in the photograph.
115 At the end of section 208
Add:
(2) However, if the owner of the material on
which the photograph was taken was a body corporate, then subsection (1)
only applies in respect of references to the author of the photograph that
relate to the ownership of the copyright in the photograph.
Note: For example, subsection (1) does not
apply in relation to references to the author of the photograph that relate to
the duration of the copyright in the photograph.
116 Section 212
Repeal the section.
117 Application
The amendments made by this Part apply to copyright in
photographs that subsists on or after the day on which this item commences.
118 Compensation scheme for agreements made before Royal
Assent
Application of item
(1) This item applies if:
(a) the copyright in a photograph is
owned by a person (the owner); and
(b) before the day on which this Act
receives the Royal Assent, another person made a written and lawful agreement
with a third party; and
(c) the agreement was entered into for
the purposes of doing an act at a particular time that would, apart from this
item, infringe the copyright; and
(d) the agreement was made in reliance
on the copyright having ceased to subsist before that time; and
(e) because of the amendments made by
this Part the copyright continues to subsist past that time.
Owner may notify person that owner objects to person doing
the act
(2) Before the person does the act, the owner of the
copyright may notify the person in writing that the owner objects to the person
doing the act.
Owner may provide reasonable compensation to person
(3) If the owner does so, then the owner and the person
may agree on:
(a) compensation that is reasonable in
all of the circumstances that the owner is to provide to the person; and
(b) the day by which the owner is to
provide the compensation.
(4) If the owner and the person cannot agree, either of
them may apply to the Copyright Tribunal for the Tribunal to determine:
(a) compensation that is reasonable in
all of the circumstances that the owner is to provide to the person; and
(b) the day by which the owner is to
provide the compensation.
(5) When the Copyright Tribunal has determined an
amount of reasonable compensation, the owner is liable to pay that amount to
the person by the day determined by the Tribunal. The person may recover that
amount in a court of competent jurisdiction from the owner as a debt due to the
person.
Person may do act if not notified by owner or if not paid
reasonable compensation
(6) If the owner does not notify the person, or pay
reasonable compensation to the person, in accordance with this item, then:
(a) the person may do the act
mentioned in paragraph (1)(c) at any time after the copyright would, apart
from the amendments made by this Part, have ceased to subsist; and
(b) for the purposes of the Copyright
Act 1968:
(i) the owner is not
entitled to bring an action under that Act against the person in respect of the
act; and
(ii) the person does not
contravene a section of, or commit an offence under, that Act by doing the act.
(7) To avoid doubt, subitem (6) is an exception
that a defendant may rely on for the purposes of section 13.3 of the Criminal
Code.
Note: A defendant bears an evidential burden in
relation to the matter in subitem (6) (see subsection 13.3(3) of the Criminal
Code).
(8) In this item:
owner, in relation to the copyright in a photograph
at a particular time in respect of a particular act, includes an exclusive
licensee of the copyright in the photograph at that time in respect of that
act.
119 Applications to Copyright Tribunal for determination of
reasonable compensation payable
(1) This item applies if an application is made to the
Copyright Tribunal under item 118 for the determination of reasonable
compensation to be paid by the owner of the copyright in a photograph to a
person mentioned in paragraph 118(1)(b).
(2) The parties to the application are:
(a) the owner of the copyright; and
(b) the person mentioned in that
paragraph.
(3) The Tribunal must consider the application and,
after giving to the parties an opportunity of presenting their cases, must make
an order determining the amount of compensation that it considers to be
reasonable in all of the circumstances.
(4) In this item:
owner, in relation to the copyright in a photograph
at a particular time in respect of a particular act, includes an exclusive
licensee of the copyright in the photograph at that time in respect of that
act.
Part 6—Duration of copyright in works and other subject‑matter
Copyright Act 1968
120 Subsection 33(2)
Omit “50 years”, substitute “70 years”.
121 Subsections 33(3) and (5)
Omit “the expiration of 50 years after the expiration”,
substitute “the end of 70 years after the end”.
122 Subsection 34(1)
Omit “50 years”, substitute “70 years”.
123 Subsection 81(2)
Omit “50 years after the expiration”, substitute “70 years after
the end”.
124 Section 93
Omit “the expiration of 50 years after the expiration”,
substitute “the end of 70 years after the end”.
125 Section 94
Omit “the expiration of 50 years after the expiration” (wherever
occurring), substitute “the end of 70 years after the end”.
126 Paragraph 128(a)
Omit “50 years”, substitute “70 years”.
127 At the end of subsection 132(1)
Add:
Note: A person who makes an agreement before the US
Free Trade Agreement Implementation Act 2004 receives the Royal Assent
might not commit an offence under this section: see items 118 and 132 of
Schedule 9 to that Act.
128 Paragraphs 187(2)(b) and 188(2)(b)
Omit “the expiration of 50 years after the expiration”,
substitute “the end of 70 years after the end”.
129 Paragraph 188(3)(b)
Omit “expiration” (wherever occurring), substitute “end”.
130 Subsection 220(3)
Repeal the subsection.
131 Application
The amendments made by this Part apply to copyright in works and
other subject‑matter that subsists on or after the day on which this item
commences.
132 Compensation scheme for agreements made before Royal
Assent
Application of item
(1) This item applies if:
(a) the copyright in a work or other
subject‑matter is owned by a person (the owner); and
(b) before the day on which this Act
receives the Royal Assent, another person made a written and lawful agreement
with a third party; and
(c) the agreement was entered into for
the purposes of doing an act at a particular time that would, apart from this
item, infringe the copyright; and
(d) the agreement was made in reliance
on the copyright having ceased to subsist before that time; and
(e) because of the amendments made by
this Part the copyright continues to subsist past that time.
Owner may notify person that owner objects to person doing
the act
(2) Before the person does the act, the owner of the
copyright may notify the person in writing that the owner objects to the person
doing the act.
Owner may provide reasonable compensation to person
(3) If the owner does so, then the owner and the person
may agree on:
(a) compensation that is reasonable in
all of the circumstances that the owner is to provide to the person; and
(b) the day by which the owner is to
provide the compensation.
(4) If the owner and the person cannot agree, either of
them may apply to the Copyright Tribunal for the Tribunal to determine:
(a) compensation that is reasonable in
all of the circumstances that the owner is to provide to the person; and
(b) the day by which the owner is to
provide the compensation.
(5) When the Copyright Tribunal has determined an amount
of reasonable compensation, the owner is liable to pay that amount to the
person by the day determined by the Tribunal. The person may recover that
amount in a court of competent jurisdiction from the owner as a debt due to the
person.
Person may do act if not notified by owner or if not paid
reasonable compensation
(6) If the owner does not notify the person, or pay
reasonable compensation to the person, in accordance with this item, then:
(a) the person may do the act
mentioned in paragraph (1)(c) at any time after the copyright would, apart
from the amendments made by this Part, have ceased to subsist; and
(b) for the purposes of the Copyright
Act 1968:
(i) the owner is not
entitled to bring an action under that Act against the person in respect of the
act; and
(ii) the person does not
contravene a section of, or commit an offence under, that Act by doing the act.
(7) To avoid doubt, subitem (6) is an exception
that a defendant may rely on for the purposes of section 13.3 of the Criminal
Code.
Note: A defendant bears an evidential burden in
relation to the matter in subitem (6) (see subsection 13.3(3) of the Criminal
Code).
(8) In this item:
owner, in relation to the copyright in a work or
other subject‑matter at a particular time in respect of a particular act,
includes an exclusive licensee of the copyright in the work or subject‑matter
at that time in respect of that act.
133 Applications to Copyright Tribunal for determination of
reasonable compensation payable
(1) This item applies if an application is made to the
Copyright Tribunal under item 132 for the determination of reasonable
compensation to be paid by the owner of the copyright in a work or other
subject‑matter to a person mentioned in paragraph 132(1)(b).
(2) The parties to the application are:
(a) the owner of the copyright; and
(b) the person mentioned in that
paragraph.
(3) The Tribunal must consider the application and,
after giving to the parties an opportunity of presenting their cases, must make
an order determining the amount of compensation that it considers to be
reasonable in all of the circumstances.
(4) In this item:
owner, in relation to the copyright in a work or
other subject‑matter at a particular time in respect of a particular act,
includes an exclusive licensee of the copyright in the work or subject‑matter
at that time in respect of that act.
Part 7—Electronic rights management information
Copyright Act 1968
134 Subsection 10(1) (definition of electronic rights
management information)
Repeal the definition, substitute:
electronic rights management information, in
relation to a work or other subject‑matter, means information that:
(a) is electronic; and
(b) either:
(i) is or was attached to,
or is or was embodied in, a copy of the work or subject‑matter; or
(ii) appears or appeared in
connection with a communication, or the making available, of the work or
subject‑matter; and
(c) either:
(i) identifies the work or
subject‑matter, and its author or copyright owner (including such
information represented as numbers or codes); or
(ii) identifies or
indicates some or all of the terms and conditions on which the work or subject‑matter
may be used, or indicates that the use of the work or subject‑matter is
subject to terms or conditions (including such information represented as
numbers or codes).
135 Paragraph 116B(1)(a)
Repeal the paragraph, substitute:
(a) either:
(i) a person removes, from
a copy of a work or other subject‑matter in which copyright subsists, any
electronic rights management information that relates to the work or other
subject‑matter; or
(ii) a person alters any
electronic rights management information that relates to a work or other
subject‑matter in which copyright subsists; and
136 Subparagraph 116C(1)(a)(i)
Repeal the subparagraph, substitute:
(i) distributes a copy of
the work or other subject‑matter to the public;
Note: The heading to section 116C is replaced by
the heading “Distribution to the public etc. of works whose electronic
rights management information has been removed or altered”.
137 Subparagraph 116C(1)(a)(ii)
Omit “for the purpose of trade”, substitute “for distribution to
the public”.
138 Paragraph 116C(1)(b)
Repeal the paragraph, substitute:
(b) either:
(i) any electronic rights
management information that relates to the work or other subject‑matter
has been removed from the copy of the work or subject‑matter; or
(ii) any electronic rights
management information that relates to the work or other subject‑matter
has been altered; and
139 After section 116C
Insert:
116CA
Distribution and importation of electronic rights management information that
has been removed or altered
(1) This section applies if:
(a) a person does either of the
following acts in relation to electronic rights management information that
relates to a work or other subject‑matter in which copyright subsists:
(i) distributes the
electronic rights management information;
(ii) imports into Australia
the electronic rights management information for distribution; and
(b) the person does so without the
permission of the owner or exclusive licensee of the copyright; and
(c) either:
(i) the information has
been removed from a copy of the work or subject‑matter without the
permission of the owner or exclusive licensee of the copyright; or
(ii) the information has
been removed from a copy of the work or subject‑matter with the
permission of the owner or exclusive licensee of the copyright but the
information has been altered without that permission; and
(d) the person knew that the
information had been removed or altered without that permission; and
(e) the person knew, or ought
reasonably to have known, that the act referred to in paragraph (a) that
was done by the person would induce, enable, facilitate or conceal an
infringement of the copyright.
(2) If this section applies, the owner or
exclusive licensee of the copyright may bring an action against the person.
(3) In an action under subsection (2),
it must be presumed that the defendant:
(a) had the knowledge referred to in
paragraph (1)(d); and
(b) knew, or ought reasonably to have
known, that the doing of the act to which the action relates would have the
effect referred to in paragraph (1)(e);
unless the defendant proves otherwise.
116CB
Exception relating to national security and law enforcement
Sections 116B to 116CA do not apply
in respect of anything lawfully done for the purposes of law enforcement or
national security by or on behalf of:
(a) the Commonwealth or a State or
Territory; or
(b) an authority of the Commonwealth
or of a State or Territory.
140 Subsections 116D(1) and (2)
Omit “or 116C”, substitute “, 116C or 116CA”.
Note: The heading to section 116D is altered by
omitting “and 116C” and substituting “, 116C and 116CA”.
141 Subsections 132(5C) and (5D)
Repeal the subsections, substitute:
Offences relating to electronic rights management
information
(5C) A person commits an offence if:
(a) copyright subsists in a work or
other subject‑matter; and
(b) either:
(i) the person removes,
from a copy of the work or subject‑matter, any electronic rights
management information that relates to the work or subject‑matter; or
(ii) the person alters any
electronic rights management information that relates to the work or subject‑matter;
and
(c) the person does so without the
permission of the owner or exclusive licensee of the copyright; and
(d) the person is reckless as to
whether the removal or alteration will induce, enable, facilitate or conceal an
infringement of the copyright.
(5D) A person commits an offence if:
(a) copyright subsists in a work or
other subject‑matter; and
(b) the person does any of the
following acts in relation to the work or subject‑matter:
(i) distributes a copy of
the work or subject‑matter with the intention of trading and obtaining a
commercial advantage or profit;
(ii) imports a copy of the
work or subject‑matter into Australia with the intention of trading and
obtaining a commercial advantage or profit;
(iii) communicates a copy of
the work or subject‑matter to the public; and
(c) the person does so without the
permission of the owner or exclusive licensee of the copyright; and
(d) either:
(i) any electronic rights
management information that relates to the work or subject‑matter has
been removed from the copy of the work or subject‑matter; or
(ii) any electronic rights
management information that relates to the work or subject‑matter has
been altered;
without the permission of the
owner or exclusive licensee of the copyright; and
(e) the person knows that the
information has been removed or altered without that permission; and
(f) the person is reckless as to
whether the act referred to in paragraph (b) will induce, enable,
facilitate or conceal an infringement of the copyright.
(5DA) A person commits an offence if:
(a) copyright subsists in a work or
other subject‑matter; and
(b) the person does either of the
following acts in relation to electronic rights management information that
relates to the work or subject‑matter:
(i) distributes the
electronic rights management information with the intention of trading and
obtaining a commercial advantage or profit;
(ii) imports the electronic
rights management information into Australia with the intention of trading and
obtaining a commercial advantage or profit; and
(c) the person does so without the
permission of the owner or exclusive licensee of the copyright; and
(d) either:
(i) the information has
been removed from a copy of the work or subject‑matter without the
permission of the owner or exclusive licensee of the copyright; or
(ii) the information has
been removed from a copy of the work or subject‑matter with the
permission of the owner or exclusive licensee of the copyright but the
information has been altered without that permission; and
(e) the person knows that the
information has been removed or altered without that permission; and
(f) the person is reckless as to
whether the act referred to in paragraph (b) will induce, enable,
facilitate or conceal an infringement of the copyright.
142 After subsection 132(5E)
Insert:
Defence for certain public institutions etc.
(5EA) Subsections (5C) to (5DB) do not apply
in respect of anything lawfully done by the following bodies in performing
their functions:
(a) a library (other than a library
that is conducted for the profit, direct or indirect, of an individual or
individuals);
(b) a body mentioned in
paragraph (a) of the definition of archives or in subsection
10(4);
(c) an educational institution;
(d) a public non‑commercial
broadcaster, including:
(i) a body that provides a
national broadcasting service within the meaning of the Broadcasting
Services Act 1992; and
(ii) a body that holds a
community broadcasting licence within the meaning of that Act.
Note: A library that is owned by a person conducting
a business for profit might not itself be conducted for profit: see
section 18.
143 Subsection 132(5J)
After “(5E),”, insert “(5EA),”.
144 Subsection 134(2)
Omit “or 116C”, substitute “, 116C or 116CA”.
145 Application
The amendments made by this Part apply in respect of acts done
after the day on which this item commences.
Part 8—Criminal offences
Copyright Act 1968
146 Paragraphs 132(1)(b) and (c)
After “by way of trade”, insert “, and with the intention of
obtaining a commercial advantage or profit,”.
Note: The following heading to subsection 132(1) is
inserted “Offences relating to infringing copies”.
147 Subparagraph 132(1)(d)(i)
After “by way of trade”, insert “, and with the intention of
obtaining a commercial advantage or profit,”.
148 Subparagraph 132(1)(d)(ii)
After “for the purpose of trade,”, insert “and with the intention
of obtaining a commercial advantage or profit,”.
149 Subparagraph 132(1)(d)(iii)
After “by way of trade”, insert “, and with the intention of
obtaining a commercial advantage or profit,”.
150 Paragraph 132(2)(a)
After “for the purpose of trade”, insert “and with the intention
of obtaining a commercial advantage or profit”.
151 Paragraph 132(2A)(a)
After “by way of trade”, insert “, and with the intention of
obtaining a commercial advantage or profit,”.
152 Paragraph 132(2A)(b)
After “for the purpose of trade,”, insert “and with the intention
of obtaining a commercial advantage or profit,”.
153 Paragraph 132(2A)(c)
After “by way of trade”, insert “, and with the intention of
obtaining a commercial advantage or profit,”.
Note 1: The following heading to subsection 132(5) is
inserted “Offence relating to infringing public performances of literary,
dramatic or musical works”.
Note 2: The following heading to subsection 132(5AA) is
inserted “Offences relating to sound recordings or films heard or seen in
public”.
Note 3: The following heading to subsection 132(5A) is
inserted “Offences relating to circumvention services and devices”.
154 Before subsection 132(5E)
Insert:
Offence relating to significant infringement of
copyright
(5DB) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct results in one or more
infringements of the copyright in a work or other subject‑matter; and
(c) the infringement or infringements
have a substantial prejudicial impact on the owner of the copyright; and
(d) the infringement or infringements
occur on a commercial scale.
(5DC) In determining whether one or more
infringements occur on a commercial scale for the purposes of paragraph (5DB)(d),
the following matters are to be taken into account:
(a) the volume of any articles that
are infringing copies that constitute the infringement or infringements;
(b) the value of any articles that are
infringing copies that constitute the infringement or infringements;
(c) any other relevant matter.
155 Subsection 132(5E)
Omit “and (5B)”, substitute “to (5DB)”.
Note 1: The following heading to subsection 132(5E) is
inserted “Defence relating to law enforcement and national security”.
Note 2: The following heading to subsection 132(5F) is
inserted “Permitted purpose exceptions”.
Note 3: The following heading to subsection 132(6) is
inserted “Section applies only in respect of acts done in Australia”.
Note 4: The following heading to subsection 132(6AA) is
inserted “Penalties”.
156 Subsection 132(6A)
Omit “or (5D)”, substitute “, (5D), (5DA) or (5DB)”.
Note: The following heading to subsection 132(7) is
inserted “Proceedings may be brought in Federal Court etc.”.
157 Subsection 132(9)
Insert:
copyright material means:
(a) a work; or
(b) a published edition of a work; or
(c) a sound recording; or
(d) a cinematograph film; or
(e) a television or sound broadcast;
or
(f) a work that is included in a
sound recording, a cinematograph film or a television or sound broadcast.
Note: The following heading to subsection 132(9) is
inserted “Definitions”.
158 Subsection 132(9)
Insert:
profit does not include any advantage,
benefit or gain resulting from, or associated with, any private or domestic use
of any copyright material.
159 At the end of section 132
Add:
Burden of proof relating to profit
(11) In a prosecution for an offence against
this section, the burden of proving that any advantage, benefit or gain does
not result from, or is not associated with, any private or domestic use of any
copyright material is on the prosecution.
160 Application
The amendments made by this Part apply in respect of acts done
after the day on which this item commences.
Part 9—Encoded broadcasts
Copyright Act 1968
161 Section 135AL
Insert:
channel provider means a person who:
(a) packages a channel (which might
include programs produced by the person); and
(b) supplies a broadcaster with the
channel; and
(c) carries on a business that
involves the supply of the channel;
where, apart from any breaks for the purposes of the
transmission of incidental matter, the channel is broadcast as part of an
encoded broadcast service.
162 Section 135AL
Insert:
copyright material means:
(a) a work; or
(b) a published edition of a work; or
(c) a sound recording; or
(d) a cinematograph film; or
(e) a television or sound broadcast;
or
(f) a work that is included in a
sound recording, a cinematograph film or a television or sound broadcast.
163 Section 135AL
Insert:
profit does not include any advantage,
benefit or gain resulting from, or associated with, any private or domestic use
of any copyright material.
164 Subparagraph 135AN(1)(b)(iii)
After “distributes”, insert “(including by exporting from Australia)”.
Note 1: The following heading to subsection 135AN(1) is
inserted “Actions in relation to the manufacture of and dealing with
broadcast decoding devices”.
Note 2: The following heading to subsection 135AN(2) is
inserted “Exception relating to law enforcement and national security”.
165 Subsection 135AN(3)
Repeal the subsection, substitute:
Who may bring an action
(3) Subject to subsection (8), if this
section applies, the following persons may bring an action against the person
mentioned in subsection (1):
(a) any person who has an interest in
the copyright in the broadcast;
(b) any person who has an interest in
the copyright in any content of the broadcast;
(c) the channel provider who supplies
the broadcaster with the channel for the broadcast.
Note: See section 135AL for the definition of channel
provider.
Note 1: The following heading to subsection 135AN(4) is
inserted “Relief etc.”.
Note 2: The following heading to subsection 135AN(7) is
inserted “Presumption relating to defendant’s knowledge”.
Note 3: The following heading to subsection 135AN(8) is
inserted “Limitation on bringing actions”.
166 Subsection 135ANA(1)
Omit “this section”, substitute “this subsection”.
Note 1: The heading to section 135ANA is altered by
omitting “for commercial purposes”.
Note 2: The following heading to subsection 135ANA(1) is
inserted “Actions in relation to the use of broadcast decoding devices”.
167 Paragraph 135ANA(1)(b)
Omit “an encoded broadcast”, substitute “the encoded broadcast”.
168 Paragraph 135ANA(1)(c)
Repeal the paragraph.
169 After subsection 135ANA(1)
Insert:
(1A) Subject to subsection (2), this
subsection applies if:
(a) a broadcaster makes an encoded
broadcast; and
(b) a broadcast decoding device is
used to gain access to the encoded broadcast without the authorisation of the
broadcaster; and
(c) a person distributes (including by
communicating), or authorises the distribution of, the broadcast that has been
accessed by the device; and
(d) the distribution affects
prejudicially a person who may bring an action under subsection (3); and
(e) the person knew that the
broadcaster had not authorised the access to the encoded broadcast.
(1B) Subject to subsection (2), this
subsection applies if:
(a) a broadcaster makes an encoded
broadcast; and
(b) a broadcast decoding device is
used to gain access to the encoded broadcast without the authorisation of the
broadcaster; and
(c) a person receives the broadcast
that has been accessed by the device; and
(d) the person knew that the
broadcaster had not authorised the access to the encoded broadcast.
Note: The following heading to subsection 135ANA(2)
is inserted “Exception relating to law enforcement and national security”.
170 Subsection 135ANA(3)
Repeal the subsection, substitute:
Who may bring an action
(3) Subject to subsection (7), if
subsection (1), (1A) or (1B) applies, the following persons may bring an
action against the person mentioned in that subsection:
(a) any person who has an interest in
the copyright in the broadcast;
(b) any person who has an interest in
the copyright in any content of the broadcast;
(c) the channel provider who supplies
the broadcaster with the channel for the broadcast.
Note: See section 135AL for the definition of channel
provider.
Note: The following heading to subsection 135ANA(4)
is inserted “Relief etc.”.
171 Paragraph 135ANA(5)(a)
After “paragraph (1)(b)”, insert “, (1A)(c) or (1B)(c)”.
172 Paragraph 135ANA(5)(b)
Omit “the trade”, substitute “any trade”.
173 Subsection 135ANA(7)
After “paragraph (1)(b)”, insert “, (1A)(c) or (1B)(c)”.
Note: The following heading to subsection 135ANA(7)
is inserted “Limitation on bringing actions”.
174 Paragraph 135AS(1)(b)
After “by way of trade”, insert “, and with the intention of
obtaining a commercial advantage or profit,”.
Note: The following heading to subsection 135AS(1) is
inserted “Offences in relation to manufacture of or dealing with broadcast
decoding devices”.
175 Paragraph 135AS(1)(c)
Repeal the paragraph, substitute:
(c) distribute (including by exporting
from Australia) a broadcast decoding device with the intention of trading and
obtaining a commercial advantage or profit, or with the intention of engaging
in any other activity that will affect prejudicially a broadcaster; or
176 Paragraph 135AS(1)(d)
After “by way of trade”, insert “and with the intention of
obtaining a commercial advantage or profit”.
177 Subparagraph 135AS(1)(e)(i)
After “by way of trade,”, insert “and with the intention of
obtaining a commercial advantage or profit,”.
178 Subparagraph 135AS(1)(e)(ii)
Omit “for trading,”, substitute “for trading with the intention
of obtaining a commercial advantage or profit,”.
179 Subparagraph 135AS(1)(e)(iii)
After “by way of trade”, insert “and with the intention of
obtaining a commercial advantage or profit”.
180 At the end of subsection 135AS(1)
Add:
Note: See section 135AL for the definition of profit.
181 After subsection 135AS(1)
Insert:
Offence in relation to use of broadcast decoding
devices for commercial advantage etc.
(1A) A person commits an offence if:
(a) a broadcaster makes an encoded
broadcast; and
(b) the person uses, or authorises the
use of, a broadcast decoding device to gain access to the encoded broadcast;
and
(c) the access is gained without the
authorisation of the broadcaster; and
(d) the person uses, or authorises the
use of, the device by way of trade and with the intention of obtaining a
commercial advantage or profit.
Note: See section 135AL for the definition of profit.
Offence in relation to distribution of encoded
broadcast that has been accessed without authorisation
(1B) A person commits an offence if:
(a) a broadcaster makes an encoded
broadcast; and
(b) a broadcast decoding device is
used to gain access to the encoded broadcast; and
(c) the access is gained without the authorisation
of the broadcaster; and
(d) the person distributes (including
by communicating), or authorises the distribution of, the broadcast that has
been accessed by the device; and
(e) the person knows the broadcaster
had not authorised the access to the broadcast; and
(f) the distribution affects
prejudicially the following persons:
(i) any person who has an
interest in the copyright in the broadcast;
(ii) any person who has an
interest in the copyright in any content of the broadcast;
(iii) the channel provider
who supplies the broadcaster with the channel for the broadcast.
Note: See section 135AL for the definition of channel
provider.
182 Subsection 135AS(2)
Omit “Subsection (1)”, substitute “This section”.
Note: The following heading to subsection 135AS(2) is
inserted “Defence relating to law enforcement and national security”.
183 After subsection 135AS(3)
Insert:
(3A) In a prosecution for an offence against
this section, the burden of proving that any advantage, benefit or gain does
not result from, or is not associated with, any private or domestic use of any
copyright material is on the prosecution.
Note: The following heading to subsection 135AS(3) is
inserted “Burdens of proof”.
184 Subsection 135AS(4)
After “subsection (1)”, insert “, (1A) or (1B)”.
Note: The following heading to subsection 135AS(4) is
inserted “Penalty for contravening section”.
185 Application
The amendments made by this Part apply in respect of encoded
broadcasts made after the day on which this item commences.
Part 10—Reproductions
Copyright Act 1968
186 Subsection 10(1) (definition of material form)
Repeal the definition, substitute:
material form, in relation to a work or an
adaptation of a work, includes any form (whether visible or not) of storage of
the work or adaptation, or a substantial part of the work or adaptation,
(whether or not the work or adaptation, or a substantial part of the work or
adaptation, can be reproduced).
187 At the end of section 10
Add:
(5) For the purposes of the definition of copy
in subsection (1), such a copy includes any form (whether visible
or not) of storage of a cinematograph film, or a substantial part of a
cinematograph film, (whether or not the copy of the film, or a substantial part
of the film, can be reproduced).
(6) For the purposes of paragraph 10(3)(c), a
reference to a copy of a sound recording includes any form (whether visible or
not) of storage of the sound recording, or a substantial part of the sound
recording, (whether or not the copy of the recording, or a substantial part of
the recording, can be reproduced).
188 After section 43A
Insert:
43B
Reproduction of works as part of a technical process of use
(1) Subject to subsection (2), the
copyright in a work is not infringed by the making of a reproduction of the
work if the reproduction is incidentally made as part of a technical process of
using a copy of the work.
(2) Subsection (1) does not apply to the
making of a reproduction of a work if the reproduction is made from an
infringing copy of the work.
189 After section 111A
Insert:
111B
Reproduction of subject‑matter as part of a technical process of use
(1) Subject to subsection (2), the
copyright in a subject‑matter is not infringed by the making of a
reproduction of the subject‑matter if the reproduction is incidentally
made as part of a technical process of using a copy of the subject‑matter.
(2) Subsection (1) does not apply to the
making of a reproduction of a subject‑matter if the reproduction is made
from an infringing copy of the subject‑matter.
190 Application
The amendments made by this Part apply in respect of acts done
after the day on which this item commences.
Part 11—Limitation on remedies available against carriage service
providers
Copyright Act 1968
191 After Division 2 of Part V
Insert:
Division 2AA—Limitation on remedies available against carriage service
providers
Subdivision A—Preliminary
116AA
Purpose of this Division
(1) The purpose of this Division is to limit
the remedies that are available against carriage service providers for
infringements of copyright that relate to the carrying out of certain online
activities by carriage service providers. A carriage service provider must
satisfy certain conditions to take advantage of the limitations.
Note 1: Subdivision B contains a description of the
relevant activities.
Note 2: Subdivision C contains details of the
limitations on remedies.
Note 3: Subdivision D sets out the conditions that must
be satisfied for a carriage service provider to take advantage of the
limitations. The limitations are automatic if a carriage service provider
complies with the relevant conditions.
(2) This Division does not limit the
operation of provisions of this Act outside this Division in relation to
determining whether copyright has been infringed.
116AB
Definitions
In this Division:
caching means the reproduction of copyright
material on a system or network controlled or operated by or for a carriage
service provider in response to an action by a user in order to facilitate
efficient access to that material by that user or other users.
copyright material means:
(a) a work; or
(b) a published edition of a work; or
(c) a sound recording; or
(d) a cinematograph film; or
(e) a television or sound broadcast;
or
(f) a work that is included in a
sound recording, a cinematograph film or a television or sound broadcast.
financial benefit, in relation to a carriage
service provider, does not include a benefit that merely results from the level
of activity on the carriage service provider’s system or network.
industry code means:
(a) an industry code that:
(i) meets any prescribed
requirements; and
(i) is registered under
Part 6 of the Telecommunications Act 1997; or
(b) an industry code developed in
accordance with the regulations.
Subdivision B—Relevant activities
116AC
Category A activity
A carriage service provider carries out
a Category A activity by providing facilities or services for
transmitting, routing or providing connections for copyright material, or the
intermediate and transient storage of copyright material in the course of
transmission, routing or provision of connections.
116AD
Category B activity
A carriage service provider carries out
a Category B activity by caching copyright material through an
automatic process. The carriage service provider must not manually select the
copyright material for caching.
116AE
Category C activity
A carriage service provider carries out
a Category C activity by storing, at the direction of a user,
copyright material on a system or network controlled or operated by or for the
carriage service provider.
116AF
Category D activity
A carriage service provider carries out
a Category D activity by referring users to an online location
using information location tools or technology.
Subdivision C—Limitations on remedies
116AG
Limitations on remedies
Relevant conditions must be satisfied
(1) A carriage service provider must satisfy
the relevant conditions set out in Subdivision D before the limitations in this
section apply.
General limitations
(2) For infringements of copyright that occur
in the course of carrying out any of the categories of activities set out in
Subdivision B, a court must not grant relief against a carriage service
provider that consists of:
(a) damages or an account of profits;
or
(b) additional damages; or
(c) other monetary relief.
Category specific limitations
(3) For an infringement of copyright that
occurs in the course of the carrying out of a Category A activity, the relief
that a court may grant against a carriage service provider is limited to one or
more of the following orders:
(a) an order requiring the carriage
service provider to take reasonable steps to disable access to an online
location outside Australia;
(b) an order requiring the carriage
service provider to terminate a specified account.
(4) For an infringement of copyright that
occurs in the course of the carrying out of a Category B, C or D activity, the
relief that a court may grant against a carriage service provider is limited to
one or more of the following orders:
(a) an order requiring the carriage
service provider to remove or disable access to infringing copyright material,
or to a reference to infringing copyright material;
(b) an order requiring the carriage
service provider to terminate a specified account;
(c) some other less burdensome but
comparably effective non‑monetary order if necessary.
Relevant matters
(5) In deciding
whether to make an order of a kind referred to in subsection (3) or (4), a
court must have regard to:
(a) the harm that has been caused to
the owner or exclusive licensee of the copyright; and
(b) the burden that the making of the
order will place on the carriage service provider; and
(c) the technical feasibility of
complying with the order; and
(d) the effectiveness of the order;
and
(e) whether some other comparably
effective order would be less burdensome.
The court may have regard to other matters it considers
relevant.
Subdivision D—Conditions
116AH
Conditions
(1) This table sets out the conditions for
each of the categories of activities.
|
Conditions
|
|
Item
|
Activity
|
Conditions
|
|
1
|
All categories
|
1. The carriage service provider must adopt and reasonably
implement a policy that provides for termination, in appropriate
circumstances, of the accounts of repeat infringers.
2. If there is a relevant industry code in force—the
carriage service provider must comply with the relevant provisions of that
code relating to accommodating and not interfering with standard technical
measures used to protect and identify copyright material.
|
|
2
|
Category A
|
1. Any transmission of copyright material in carrying out
this activity must be initiated by or at the direction of a person other than
the carriage service provider.
2. The carriage service provider must not make substantive
modifications to copyright material transmitted. This does not apply to
modifications made as part of a technical process.
|
|
3
|
Category B
|
1. If the copyright material that is cached is subject to
conditions on user access at the originating site, the carriage service
provider must ensure that access to a significant part of the cached
copyright material is permitted only to users who have met those conditions.
2. If there is a relevant industry code in force—the
carriage service provider must comply with the relevant provisions of that
code relating to:
(a) updating the cached copyright material; and
(b) not interfering with technology used at the originating
site to obtain information about the use of the copyright material.
3. The service provider must expeditiously remove or
disable access to cached copyright material upon notification in the
prescribed form that the material has been removed or access to it has been
disabled at the originating site.
4. The carriage service provider must not make substantive
modifications to the cached copyright material as it is transmitted to
subsequent users. This does not apply to modifications made as part of a
technical process.
|
|
4
|
Category C
|
1. The carriage service provider must not receive a
financial benefit that is directly attributable to the infringing activity if
the carriage service provider has the right and ability to control the
activity. A financial benefit is to be regarded as directly attributable to
the infringing activity only if the carriage service provider knew or ought
reasonably to have known that an infringement of copyright was involved.
2. The carriage service provider must expeditiously remove
or disable access to copyright material residing on its system or network
upon receipt of a notice in the prescribed form that the material has been
found to be infringing by a court.
3. The carriage service provider must comply with the
prescribed procedure in relation to removing or disabling access to copyright
material residing on its system or network.
|
|
5
|
Category D
|
1. The carriage service provider must not receive a
financial benefit that is directly attributable to the infringing activity if
the carriage service provider has the right and ability to control the
activity. A financial benefit is to be regarded as directly attributable to
the infringing activity only if the carriage service provider knew or ought
reasonably to have known that an infringement of copyright was involved.
2. The carriage service provider must expeditiously remove
or disable access to a reference residing on its system or network upon
receipt of a notice in the prescribed form that the copyright material to
which it refers has been found to be infringing by a court.
3. The carriage service provider must comply with the prescribed
procedure in relation to removing or disabling a reference residing on its
system or network.
|
(2) Nothing in the conditions is to be taken
to require a carriage service provider to monitor its service or to seek facts
to indicate infringing activity except to the extent required by a standard
technical measure mentioned in condition 2 in table item 1 in the table in
subsection (1).
116AI
Evidence of compliance with conditions
If a carriage service provider, in an
action relating to this Division, points to evidence, as prescribed, that
suggests that the carriage service provider has complied with a condition, the
court must presume, in the absence of evidence to the contrary, that the
carriage service provider has complied with the condition.
Subdivision E—Regulations
116AJ
Regulations
(1) The regulations may provide that a
carriage service provider is not liable for damages or any other civil remedy
as a result of action taken in good faith to comply with a condition.
(2) The regulations may provide civil
remedies for conduct by relevant parties in relation to conditions.
(3) The regulations may prescribe offences
for conduct by persons issuing notices under the regulations, and prescribe
penalties for offences against those regulations. The penalties must not exceed
50 penalty units.
Note: If a body corporate is convicted of an offence
against regulations made under this section, subsection 4B(3) of the Crimes
Act 1914 allows a court to impose fines of up to 5 times the penalty stated
above.
Telecommunications Act 1997
192 At the end of section 115
Add:
(4) The rule in subsection (1) does not
apply to an industry code made for the purposes of Division 2AA of
Part V of the Copyright Act 1968.