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

I might just reiterate that to commit an offence, a person or entity must directly commit all the elements of the offence themselves. There is no ancillary liability; there is no vicarious liability. You must commit the offence yourself, all the elements thereof, so that an unwary or unwitting ISP cannot just be snared in the way that Senator Ludwig has indicated. I want to be quite clear about that. The fine which Senator Ludwig refers to is $1,320 for an individual and $6,600 for a company. In the scenario that Senator Lundy has portrayed, the liability would attach to the article that is being copied—the article which is the DVD. It does not matter how many songs are on there; it is the article for which you are fined. It would not be a case of being fined 13 times, for each different song on the article.

The other scenario was that of a person who has made some CDs and sells a couple to his mates for, say, $10 or whatever. This is a discretionary system as to whether to issue an infringement notice. Certainly it is one which is based on the facts. Throughout my remarks in support of these amendments I have mentioned that the aim of the legislation is to target those pirates who are the ‘genuine pirates’, if I can call them that—if a pirate can be genuine—and not the unwitting user or the person who is a consumer. The area that Senator Ludwig is describing is one which is not in that domain of a genuine pirate. Certainly, from my knowledge of the AFP and the people they have been targeting, it would not be the person that Senator Ludwig has described. It would be those people down at the markets who are selling CDs in a very organised fashion. They are the ones who are doing all the damage.