Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Hansard source

This is really a question, so I will keep it open-ended. I have not come to any conclusive view. The ALRC report Principled regulation under ‘Use at federal level: Constitution limits’ says at 12.19:

In the federal sphere in Australia, constitutional considerations prevent non-judicial officers from considering, deciding on and imposing penalties. In this context non-judicial officers can only perform purely administrative tasks; they simply put into effect a process of issuing penalty notices that is triggered automatically by a particular set of facts. For this reason, it is critical to determine whether the amount payable under an infringement notice is truly to be regarded as a penalty, as under the Constitution only a court may exercise judicial power.

I will not go on any further. The first part of it would be (a) paying a penalty to the Commonwealth, but it is the (b) part—that is, forfeiture to the Commonwealth—that I am seeking a view from you on. I am seeking from you a view that it is within the constitutional limits and it does not offend the ALRC—and, if you say that, why it is that you say it does not.

When you look at the other examples they have given of recent schemes, they all appear to have it down pat—for example under ‘Customs infringement notice requirements’, under section 243X, there is an infringement notice scheme and it does not go any further than that. In terms of seizure, for example, it is a matter that they can undertake separately and distinct from the scheme. But what you have done in this instance is tie those together. I was really looking to see whether it was permissible. If you tell me it is, I will accept that I have got that wrong—though I am not sure whether I am even right about it. But, with all of these things, it is better to sort it out now and get it on the record so that we have a lot of certainty here; otherwise someone else will simply challenge it along the way and we will back here again with it. But I am sure you have the right answer and you will be able to help me on that issue.

In terms of Labor’s position, it is pleasing to see that, because of the committee report and Labor’s pushing, these provisions have at least been confined. If you are going to use the infringement notice scheme, in the ALRC report there are a range of guidelines as to how you would bring that scheme into effect. If you have not already, I would encourage you to use those guidelines to ensure that there is some uniformity in your approach.

In relation to time shifting, which makes it legal for people to tape TV or radio programs at home—that is the shorthand way of saying it—for their private and domestic use in order to play them at a more convenient time, the committee did recommend that proposed subsection 111 be redrafted to make it absolutely clear that individual consumers are not restricted to watching and listening to broadcasting recordings in their home. I think I recall at a committee hearing that I was wrong about that, but it now appears that we have shifted a little bit to make it plainer. I do appreciate that the government has provided some certainty on that. Although I must have been wrong at the outset, I have now been persuaded that I was right after all—and that is pleasing to see sometimes. In any event, I think it a case of the more certainty you can provide to the consumer, the better. Labor’s push here is to ensure that that is in fact the case. In Labor’s additional report, it says at recommendation 3:

Labor Senators recommend that the time-shifting and format-shifting provisions of Schedule 6 of the Bill be amended to enable copying for personal and domestic use to occur in places other than domestic premises ...

The other area that comes to mind with amendment (12) on sheet QE275 is format shifting. A submission came to me, and I suspect it went to the government as well, on a matter to do with this and I want to get a bit of clarity on it. The format-shifting position is now certainly better, and I appreciate the government backsliding—after Labor’s pushing—on this to get to a position which gives consumers a lot more certainty. But there is still one outstanding issue that keeps popping up. We seem to keep getting tied up with technology, whether it be an iPod or an MP3 player. Let us talk about technology for a moment.

One way that people distribute information or music now is with an attached video clip. Microsoft is in the future going to use a new device—and I do not want to give them a plug, so I will not use the name of their device—to compete with iPod video, and I guess I have to give the name of that device. You can buy CDs of particular singles which, when you put them into your computer, provide a video clip of the music. That certainly did not exist in my era of vinyl records, but you can now put CDs into your computer and they will play the record and show you the video clip. People can choose to download the video clip, or the music which includes a video clip, to their particular device, which can then replay it.

There is a question in my mind as to whether that is permissible under format shifting or whether a person somewhere along the line has to take only the music and not the video clip which is provided on the CD. It would seem to me that you would have to leave the video clip behind. That may or may not be easy in terms of how these things work and how the software interacts with the particular CD when you are downloading or ripping it—I think that is the word that they use; I should qualify that by saying legitimately ripping it—from the CD and putting it on your video MP3 player. You would then have to try to work out how to leave the video clip behind without breaching copyright. If I have that wrong, then I am sure that you can tell me. If I have got that right, you can tell me what you are going to do about it.

I will not go to the detail of amendment (9) on sheet QE275. In the absence of a broader fair use provision, between amendment (9) and amendment (12) a fair approach has been found. But I will make the point that I have made previously about the technology limits of the bill. The different types of CDs that you can buy, which include ones with video clips, and the different types of downloads available, which can also include video clips, demonstrate that. Our second reading amendment pointed out that one of the concerns that Labor has is that the exceptions regime you have adopted keeps this bill technologically caught in 2006. Technologies change. Music in my era went from 78 LPs to 33s—all vinyl—and then to 8-track, which people quickly forgot and which some people may not recall, to cassettes to CDs to now digital downloads. And even those went through a couple of different formats within all of that, with there now being video clips and YouTube. That is in the space of—and I will not say how long—not a very long time, really. What worries me is that by not adopting a fair use approach you have in part caused the bill to be written for technology which exists in 2006 and therefore have left little room for development, notwithstanding that there is the issue of the protection of the copyright owners and holders as well.

There is an amendment on fair dealing exceptions for research and study on sheet QE275, but I will not deal with that one now because we can come back to that issue. Going to the removal of the commercial availability test, I see that the government have come around to the position recommended by Labor senators. In recommendation 6 of Labor’s additional report, Labor senators recommended that schedule 6 of the bill be amended to remove the commercial availability test. You have not gone that far as yet. I still hope to persuade you later on in respect of that one.

Amendments (22) to (35) on sheet QE275 deal with the cultural institutions. You are dealing with them by regulation. The committee recommended that schedule 6 of the bill be clarified to make it absolutely clear that libraries, archives and cultural institutions are able to make sufficient copies for the purposes of preservation. After a few amendments, you have managed to get to a position which is at least acceptable. When you look at the main committee report, what we find is that you have moved to accept those recommendations, but when you look at the next part, which is about the key cultural institutions, you are doing that by regulation.

One of the difficulties is that we have to rely on the government including all the relevant institutions in the regulations and not simply getting cute by putting some in and leaving others out. That is why in truth I always prefer legislation to be dealt with in the substantive bill. But I understand why you are doing it by regulation. What I seek from you, if you can comment on it to that extent, is a guarantee that you will not leave out what are in effect key cultural institutions. When you deal with the regulations, I want you to approach this in a reasonable manner. I know it will come back here as a disallowable instrument, but I would like an undertaking that those key cultural institutions—such as the ABC, SBS, the Australian Film Commission, university research institutions and other like institutions—are in fact going to be included and not unfairly excluded. We might have an argument around the edges as to which ones might or might not fall within that provision, but if that is the case I would certainly prefer to have that argument here than at some time later on during the examination of a regulation. As you know, regulations are blunt instruments; it is hard to disallow parts of a regulation when trying to achieve a finer point.

I am going to run out of time again, which belies the range of amendments that have been put forward. I will talk in the available time and wrap up my comments on some of these amendments—I can come back to some of them later. Looking at the range of amendments that have been sought to be moved, I am still concerned that some of those provisions have not been fixed up. What happened to amendment (19) was particularly interesting, as you came to an agreement, as I understand it—or at least an acceptance—between the screenwriters and CAG. By the time you had gone to the drafters, it had fallen apart again. They read it and they have come back to you again, and you have fixed the work ‘broadcast’. I have to say it was a tortuous process to follow for all concerned. It is amazing that now it is fixed—we hope. I have not heard anything different to that from those two august bodies. I will leave my comments, and I might come back with some more comments shortly.