Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Hansard source

I will deal with some of the issues that Senator Ludwig has raised. In dealing with the strict liability and, in particular, the forfeiture that Senator Ludwig noted, we are saying that the bill has a cost-effective remedy to deal with that offending activity that is at the low end of the scale—minor infringements, if you like. That provides for there to be a voluntary forfeiture by the person concerned, so that, if they pay the fine and forfeit the article, they can avoid any further action. If they do not, then there can be a full-scale prosecution and that is the penalty they will suffer. That does not conflict with our understanding of section 51 of the Constitution, which deals with the acquisition of property. We do not believe that position arises at all. We are confident that this regime does not offend that provision of the Constitution.

The general question of the relationship of the regulations with the ALRC report was another matter that Senator Ludwig raised. In preparing the regulations for the infringement notice scheme, the government has followed the Commonwealth guidelines on penalties, issued in 2004, which followed the ALRC report of 2002. We have here a consistent approach. Our approach to the guidelines was as a result of guidelines formulated from the ALRC report, so that is also taken care of.

I can give an undertaking to the Senate that there will be a reasonable approach to the listing of these cultural bodies. Senator Ludwig has mentioned some to which we certainly would have a reasonable approach, and I can give that undertaking. But we do not want to specify them in the legislation, because it is too cumbersome, and we think regulations give you that flexibility.

There was a question about downloading a video coupled with a song, such as what one gets from iTunes. The advice I have is that people who are providing that product have obtained a general licence for the video and song to be downloaded several times. A licence would have already been obtained, which means that you can access or download the song with the video without copyright infringement—that is how I understand it. That was another issue that Senator Ludwig raised. I stress that we are going to have a review, which must be completed by March 2008. The review is going to look at the technical aspects of all of this. I think there is rigour in that, as I said earlier. The report will go to parliament. I think that will be a wide review. I am not so sure we will take up Senator Ludwig’s offer, but of course it will be a wide and transparent process.

Senator Bartlett mentioned that we should go for a broader fair use right and that we have narrowed it too much. I think, as Senator Ludwig says, we need to have certainty for consumers. Our specific exceptions, which we have set out in the bill, provide that clarity and certainty for consumers. If we simply had a broad definition and left it at that, I think it would give lawyers a field day when trying to work out what it all meant. I think it is better to have it the way that we have structured it. I think that deals with Senator Ludwig’s issues.