Other laws

Copyright

14.67   The Australian Digital Alliance identified a number of strict liability offences in the Copyright Act 1968 (Cth) (Copyright Act), and submitted that ‘to date there has been no evidence that these provisions have led to a reduction in commercial scale copyright infringement … [and] by removing the mens rea  element from the offences, strict liability provisions could easily see people innocently committing an offence’.^[82] The Australian Digital Alliance also raised concerns about the broad discretion given to prosecutors and police arising from a strict liability regime coupled with an infringement notice scheme.^[83]

14.68   In its consideration of the provisions of the Copyright Amendment Act 2006, the Legal and Constitutional Affairs Committee noted that a number of submissions found the imposition of strict liability for copyright infringement ‘unprecedented and troubling, to the extent that [the provisions imposing such liability] should not be passed in its current form’.^[84]

14.69   Associate Professor Kimberlee Weatherall stated:

The key to understanding the regulatory potential of [the strict liability] provisions lies in appreciating their breadth. Historically, there is no quantitative threshold for criminal liability for copyright infringement: almost all offences under the Copyright Act 1968 (Cth) apply to the making of, or dealing with, a single infringing article, provided it is made for the purposes of trade or commercial advantage. As a result, behaviour extending all the way from the obviously ‘pirate’ through to quite commonplace commercial acts falls within the scope of the criminal offences … The provisions confer considerable discretion on the executive branch, in the form of enforcement agencies and prosecution agencies, without parliamentary oversight.^[85]

14.70   Other jurisdictions such as the United Kingdom, Canada and the United States have not imposed strict liability for copyright infringements.^[86] Similar offences do not exist in the regulatory framework for patents and trademarks.^[87]

14.71   A number of submissions stated that strict liability for copyright infringement ‘should be rejected as a matter of principle’.^[88] Additionally, concerns were raised that the provisions were overly broad, and most problematically, could be applied to non-commercial acts, acts undertaken by the public in general, and conduct undertaken in the course of ordinary, legitimate business.^[89]

14.72   The Legal and Constitutional Affairs Committee agreed that ‘there is merit in attempting to limit the scope of these provisions to the actual activities that the committee understands they are intended to target’.^[90] It was of the view that ‘strict liability provisions could be narrowed in a way that would significantly reduce the risk of their application to ordinary Australians and legitimate businesses’,^[91] and recommended that

the Federal Government re-examine with a view to amending the strict liability provisions in Schedule 1 of the Bill to reduce the possible widespread impact of their application on the activities of ordinary Australians and legitimate businesses.^[92]

14.73   Following this recommendation, the government removed 11 proposed strict liability offences and amended one to address the perception of possible overreach.^[93]

14.74   However, the Australian Digital Alliance, in its submission to this ALRC Inquiry, noted that the remaining strict liability offences could still ‘easily see people innocently committing an offence’. It cited s 132AO(5) of the Copyright Act as an example. The relevant provision states:

(5)  A person commits an offence if:

      (a) the person causes:

             (ii)        images from a cinematograph film to be seen; or

             (iii)       sound from a cinematograph film to be heard; and

      (b) the hearing or seeing occurs in public at a place of public entertainment; and

      (c) causing the hearing or seeing infringes copyright in the recording or film.

14.75   The phrase ‘in public’ is not defined in the Copyright Act. A place of public entertainment is also not exhaustively defined.^[94] Divisions 3 and 4 of pt III outline relevant acts which do not constitute infringements of copyright.

14.76   In Australasian Performing Right Association Ltd v Commonwealth Bank, Gummow J held that in determining whether the relevant conduct is in public, the question is whether

in coming together to form the audience … were the persons concerned bound together by a domestic or private tie or by an aspect of their public life? ^[95]

14.77   The Australian Digital Alliance submitted to this ALRC Inquiry that

[t]he absence of any mens rea or necessity to have caused financial harm means that any person who plays a short burst of footage from their phone or laptop in a public place faces potential criminal liability.^[96]

14.78   Based on the reasoning in Australasian Performing Right Association Ltd v Commonwealth Bank,^[97] it appears that this scenario may constitute conduct breaching s 132AO. For instance, if the person plays a short burst of footage in Martin Place during lunch time, the persons gathered at Martin Place are not bound together by a domestic tie. Martin Place likely falls within the definition of a place of public entertainment, and the conduct described by the Australian Digital Alliance does not appear to fall within the categories of conduct in divs 3 and 4 of pt III of the Copyright Act.

Family law

14.79   The Law Council of Australia stated that a number of provisions in the Child Support (Assessment) Act 1989 (Cth) and Child Support (Registration and Collection) Act 1988 (Cth)may unjustifiably impose strict liability. These provisions relate to providing the Registrar with information about payments, changes in circumstances, or other information sought by written notice.

14.80   It submitted that

[p]roceedings under the family law legislation govern the property of litigants and their family relationships. The imposition of penalties in that context is serious. Further, an offence in a family law context usually will occur whilst other litigation is pending and can impact upon it.^[98]

14.81   The ALRC notes that the specific instances of strict liability identified by the Law Council of Australia reflect a broader trend in statutes across the body of Commonwealth laws to impose strict liability in relation to the provision of information to regulatory or governing bodies. The Scrutiny of Bills Committee has accepted difficulties in proving intent as a possible rationale for imposing strict liability.^[99] For example, in considering the Financial Sector Legislation Amendment Bill (No. 1)2000 (Cth), the relevant Minister argued

it would be difficult to successfully prosecute alleged breaches of regulatory offences which involve an act of omission [such as a failure to advise of a significant event] … as evidence of mental elements such as intention or recklessness is almost impossible to obtain in the absence of admissions or independent evidence … the [Director of Public Prosecutions] has advised that for regulatory offences relating to the lodgement of documents or the provision of documentary information, it would be more appropriate if the legislation imposed a strict liability.^[100]