Senate

Explanatory Memorandum

(Circulated by authority of the Attorney General, Senator the Hon George Brandis QC)

GENERAL OUTLINE

1. The purpose of the Civil Law and Justice Legislation Amendment Bill 2014 is to make minor, technical and uncontroversial amendments to civil justice legislation. This will improve the operation and clarity of civil justice legislation administered by the Attorney-General's portfolio.

2. The Bill is an omnibus bill which will amend the following Acts: the Bankruptcy Act 1966; the Copyright Act 1968; the Court Security Act 2013; the Evidence Act 1995; the Family Law Act 1975; the International Arbitration Act 1974 and the Protection of Movable Cultural Heritage Act 1986. The specific amendments are detailed below under the heading 'Notes on Clauses'.

The Bill comprises the following seven schedules:

3. Schedule 1 will make amendments to the Bankruptcy Act 1966. The purpose of the amendments in this schedule is to provide for:

•

the Official Trustee to act as a special trustee for other Government agencies

•

the Official Receiver to require a person to produce books without also having to require them to physically attend

•

support (either in the form of property or cash) given under the National Disability Insurance Scheme to not be divisible in bankruptcy

•

the offence of concealment under subsection 265(4) of the Bankruptcy Act to be expanded to ensure that it covers electronic fund transfers

•

section 267 of the Bankruptcy Act to be amended in order to provide that if a declaration is contained in a statement that was received by the Official Receiver electronically, and was purported to be made by a particular person, the declaration is presumed to have been made by the person, in the absence of evidence to the contrary

•

the distinction in the Bankruptcy Act between indictable and summary offences to be aligned with the distinction in the Crimes Act 1914 between indictable and summary offences, and

•

the locus of certain offences in the Bankruptcy Act to be clarified.

4. Schedule 2 will make amendments to the International Arbitration Act 1974. The purpose of the amendments in this schedule is to clarify the application of the Act to international commercial arbitration agreements.

5. Schedule 3 will make amendments to the Family Law Act 1975. The purpose of the amendments in this schedule is to:

•

amend section 121 of the Family Law Act to explicitly permit the provision of certain information to prescribed State and Territory child welfare authorities in order to improve information-sharing between the family law and child protection systems, and

•

make other minor, technical amendments to a number of provisions that will improve the operation of the Family Law Act by removing obsolete references, correcting errors and ensuring that consistent language is used.

6. Schedule 4 will make amendments to the Court Security Act 2013 and related amendments to the Family Law Act 1975. The purpose of the amendments in this schedule is to:

•

amend provisions relating to the variation, revocation or appeals of court security orders, and

•

provide for the retention and disposal of unclaimed items seized by or given up to court security officers.

7. Schedule 5 will make amendments to the Evidence Act 1995. The purpose of the amendments in this schedule is to:

•

mirror minor amendments to the Model Uniform Evidence Bill, as endorsed by the then Standing Committee of Attorneys-General, and relate to the mutual recognition of self-incrimination certificates and the definition of 'unavailability of persons'

•

improve the readability and usefulness of the Evidence Act by:

•

removing obsolete provisions referring to the operation of the Evidence Act to the Australian Capital Territory, and

•

replacing all existing legislative notes in the Evidence Act with a table in the Explanatory Memorandum that indicates where the Commonwealth Act differs from the uniform evidence legislation in other jurisdictions, and

•

correct drafting oversights.

8. Schedule 6 will make amendments to the Protection of Movable Cultural Heritage Act 1986. The purpose of the amendments in this schedule is to allow the continued functioning of the National Cultural Heritage Committee when membership falls below the maximum number.

9. Schedule 7 will make amendments to the Copyright Act 1968. The purpose of the amendments in this schedule is to extend the legal deposit scheme to require publishers of certain literary, dramatic, musical or artistic works in electronic form to deliver copies of their works to the National Library of Australia. The current scheme only captures hardcopy material.

FINANCIAL IMPACT STATEMENT

10. There is no financial impact associated with this Bill.

REGULATORY IMPACT STATEMENT

11. The Bill has no regulatory impact except for the amendments to the Copyright Act 1968, which result in a modest deregulatory saving as described in the Regulatory Impact Statement (Attachment A).

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Civil Law and Justice Legislation Amendment Bill 2014

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill</ SUBHDR>

12. This Bill is an omnibus bill which makes a number of minor, technical and uncontroversial amendments to the following Acts:

Bankruptcy Act 1966

13. The amendments to the Bankruptcy Act will provide for:

•

the Official Trustee to act as a special trustee for other Government agencies

•

the Official Receiver to require a person to produce books without also having to require them to physically attend

•

support (either in the form of property or cash) given under the National Disability Insurance Scheme to not be divisible in bankruptcy

•

the offence of concealment under subsection 265(4) of the Bankruptcy Act to be expanded to ensure that it covers electronic fund transfers

•

section 267 of the Bankruptcy Act to be amended in order to provide that if a declaration is contained in a statement that was received by the Official Receiver electronically, and was purported to be made by a particular person; the declaration is presumed to have been made by the person, in the absence of evidence to the contrary

•

the distinction in the Bankruptcy Act between indictable and summary offences to be aligned with the distinction in the Crimes Act 1914 between indictable and summary offences, and

•

the locus of certain offences in the Bankruptcy Act to be clarified.

Copyright Act 1968

14. The purpose of the amendments to the Copyright Act is to extend the legal deposit scheme to require publishers of certain literary, dramatic, musical or artistic works in electronic form to deliver copies of their works to the National Library. The current scheme only captures hardcopy material.

Court Security Act 2013

15. The Court Security Act creates a framework for court security arrangements for the High Court of Australia, Federal Court of Australia, Family Court of Australia, Federal Circuit Court of Australia, Family Court of Western Australia and the Administrative Appeals Tribunal.

16. The amendments will provide for the disposal of unclaimed items seized by or given up on request to court security officers. The amendments will also clarify provisions relating to the variation and revocation of court security orders, and will create an appeal pathway to the Family Court of Australia for court security orders made by the Family Court of Western Australia. This will support the ability of court users to access the courts.

Evidence Act 1995

17. The Evidence Act sets out the rules of evidence that apply to proceedings in federal courts. The Act is based on the Model Uniform Evidence Bill, which was endorsed by the then Standing Committee of Attorneys-General. The Evidence Act is in most respects uniform with the evidence legislation of New South Wales, Victoria, Tasmania, the Northern Territory and the Australian Capital Territory.

18. The amendments mirror minor amendments to the Model Uniform Evidence Bill, as endorsed by the then Standing Committee of Attorneys-General. The amendments relate to self-incrimination certificates and the definition of 'unavailability of persons'. Other amendments are technical in nature but will improve the readability and usefulness of the Evidence Act.

Family Law Act 1975

19. The Family Law Act sets out the rules for dealing with all of the various aspects of relationship breakdown, including making arrangements for the future parenting of children and for the resolution of property disputes.

20. The most significant of the amendments will add an exception to section 121 of the Family Law Act to explicitly permit the provision of certain information to prescribed State and Territory child welfare authorities. The amendment is intended to confirm that such disclosure is not publication or dissemination to the public or to a section of the public for the purposes of subsection 121(1).

21. The other amendments to the Family Law Act will update a number of provisions to remove obsolete references, correct errors and ensure the use of consistent language.

International Arbitration Act 1974

22. The amendments will clarify the application of the Act to international commercial arbitration agreements.

Protection of Movable Cultural Heritage Act 1986

23. The amendments will allow the continued functioning of the National Cultural Heritage Committee when membership falls below the maximum number.

Human rights implications

24. The Bill engages the following human rights:

•

the right to an effective remedy

•

the rights of persons with disabilities

•

the right to privacy, and

•

the right to a fair trial.

25. The amendments to the International Arbitration Act 1974 and the Protection of Movable Cultural Heritage Act 1986 proposed by the Bill do not engage any human rights.

The right to an effective remedy

26. Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR) imposes an obligation on States Parties to provide an effective remedy to a person whose human rights and freedoms have been violated.

Court Security Act 2013

27. The Court Security Act allows courts to appoint security officers or other court officers to exercise a range of security powers. Under the Court Security Act, a member of the Family Court of Australia, Family Court of Western Australia or the Federal Circuit Court of Australia may also make court security orders in circumstances where there is an ongoing risk of significant disruption to those courts or a risk of violence affecting persons or property connected with those courts. Court security orders are restraining or protection type orders which restrict the behaviour of a specified person in or around court premises, or in relation to a member or official of a court.

28. The Bill, through amendments to the Court Security Act, will create an appeals pathway for the decisions of the Family Court of Western Australia in relation to court security orders under the Court Security Act. Under the existing provisions, there are no appeal rights for such decisions.

29. The Bill will also clarify the process by which parties can apply to have court security orders varied or revoked.

30. Given the potentially serious implications for persons against whom court security orders are made, it is important that there is clarity about what review and appeal rights are available in relation to court security orders. This amendment advances human rights because it supports the right to an effective remedy.

The rights of persons with disabilities

i. The rights of persons with disabilities to enjoy all human rights and fundamental freedoms

31. Article 1 of the Convention on the Rights of Persons with Disabilities (CRPD) provides that its purpose is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by persons with disabilities, and to promote respect for their inherent dignity. Under Article 5 of the CRPD, people with disability are entitled to equal legal rights and protection before the law.

Evidence Act 1995

32. The Bill will replace a reference in the title of section 31 of the Evidence Act to 'deaf and mute witnesses' to 'witnesses who cannot hear or speak adequately'. The amendment will make the title consistent with the terminology used in the body of the section, but will have no substantive legal effect.

33. The amendment advances human rights and supports the rights of persons with disabilities. The reference to 'witnesses who cannot hear or speak adequately' is more inclusive and acknowledges the broad spectrum of communication disabilities.

34. The Bill will also amend the definition of 'unavailability of persons' in the Evidence Act so that persons who are mentally or physically incapable of giving evidence are taken not to be available to give evidence. Under the Evidence Act, the hearsay rule (which would otherwise exclude such evidence) does not apply to previous representations of persons who are not available to give evidence about a fact. This amendment implements a 2005 recommendation of the Australian, New South Wales and Victorian Law Reform Commissions.^[1]

35. This amendment will ensure that relevant evidence is not excluded under the hearsay rule due to the witness being mentally or physically incapable of giving evidence. The amendment will support the rights of persons with disabilities to have their representations recognised in a court of law.

ii. The right of all persons with disabilities to live independently, to be included in the community, and to access habilitation and rehabilitation services and programmes

36. Article 19 of the Convention on the Rights of Peoples with Disabilities (CRPD) recognises the equal rights of all persons with disabilities to live in the community, with choices equal to others, and requires States Parties to the Convention to take effective and appropriate measures to facilitate this right.

Bankruptcy Act 1966

37. Article 26 of the CRPD provides that States Parties shall take effective and appropriate measures, including comprehensive habilitation and rehabilitation services and programmes, to enable persons with disabilities to attain and maintain maximum independence, full physical, mental, social and vocational ability, and full inclusion and participation in all aspects of life.

38. Item 11 of Schedule 1 of the Bill (which will amend the Bankruptcy Act) provides that 'supports' or 'NDIS amounts' do not vest in the trustee in the event of bankruptcy. 'Supports' and 'NDIS amounts' are provided under the National Disability Insurance Scheme Act 2013. In other words, the payments and property provided under the National Disability Insurance Scheme Act are retained by the bankrupt. This ensures that assistance provided under the National Disability Insurance Scheme Act to:

•

promote the equal right of all persons with disabilities to live in the community, with choices equal to others, and

•

promote the right to live independently and be included in the community and to promote the availability, knowledge and use of assistive devices and technologies, designed for persons with disabilities, as they relate to habilitation and rehabilitation

is not affected by the person who is receiving the assistance becoming bankrupt.

The right to privacy

39. Article 17 of the International Covenant on Civil and Political Rights (ICCPR) imposes an obligation on States Parties to provide everyone with protection of the law from arbitrary or unlawful interference with their privacy.

Family Law Act 1975

40. Section 121 of the Family Law Act restricts the publication of any accounts of any proceedings, or parts of any proceedings, under the Act that identify the parties or others involved in the case. The restriction applies to publication, or other dissemination, to the public or a section of the public, and can apply to disclosures online as well as through the media. A breach of section 121 is an offence punishable by imprisonment of up to one year.

41. In 2013 the Attorney-General's Department engaged Professor Richard Chisholm (a former Judge of the Family Court) to chair a taskforce to report on how experts' reports can be better shared between the federal family law system and the State and Territory child protection systems. Professor Chisholm's report identified the existence of differing views about whether section 121 operates to prohibit the provision of family court reports to agencies within the State and Territory child protection systems. Because of these differing views some child welfare agencies currently seek explicit court orders to obtain court documents, such as experts' reports. This is despite the apparent strength of the contrary view that the release of such information to a State or Territory child welfare authority is not publication or dissemination to the public or to a section of the public. The report recommended that the Commonwealth review the wording of section 121 and consider removing this doubt to state explicitly that it does not apply to the provision of information to the child protection system.

42. The amendment to section 121 will confirm that the release of court material to State and Territory child welfare authorities does not breach section 121 by explicitly permitting the communication of any pleading, transcript of evidence or other document to a prescribed State or Territory child welfare authority. The purpose of explicitly authorising the release of this information is to enable appropriate information sharing between the family law and child protection systems to ensure the best possible outcomes for children.

43. The fact that the publication or dissemination of certain information is permitted by the explicit inclusion of an exception in section 121 will not make the release of information lawful if the provision of that information is prohibited by other legislation.

The right to a fair trial

44. The right to a fair trial is protected in article 14 of the International Covenant on Civil and Political Rights (ICCPR) and includes certain minimum guarantees applicable to criminal proceedings.

Court Security Act 2013

45. The Court Security Act allows courts to appoint security officers or other court officers to exercise a range of security powers. Under the Court Security Act, a member of the Family Court of Australia, Family Court of Western Australia or the Federal Circuit Court of Australia may also make court security orders in circumstances where there is an ongoing risk of significant disruption to those courts or a risk of violence affecting persons or property connected with those courts. Court security orders are restraining or protection type orders which restrict the behaviour of a specified person in or around court premises, or in relation to a member or official of a court.

46. The Bill, through amendments to the Court Security Act, will create an appeals pathway for the decisions of the Family Court of Western Australia in relation to court security orders under the Court Security Act. Under the existing provisions, there are no appeal rights for such decisions.

47. The Bill will also clarify the process by which parties can apply to have court security orders varied or revoked.

48. Given the potentially serious implications for persons against whom court security orders are made, it is important that there is clarity about what review and appeal rights are available in relation to court security orders. This amendment advances human rights because it supports the right to a fair trial.

Evidence Act 1995

49. The right to a fair trial includes certain minimum guarantees in criminal proceedings, including the right to be free from self-incrimination (article 14(3)(g) of the International Covenant on Civil and Political Rights (ICCPR)).

50. Under domestic law, the right to be free from self-incrimination and the right to be free from self-exposure to a civil penalty (together referred to here as 'self-incrimination') may be limited where expressly abrogated by statute. The Evidence Act sets out the rules of evidence that apply to proceedings in federal courts. The Evidence Act provides for how evidence is adduced in proceedings, the admissibility of evidence (including privileges), proof of matters, and other miscellaneous matters.

51. The Evidence Act provides for the privilege against self-incrimination, but limits the privilege by requiring the witness to give self-incriminatory evidence in certain circumstances. In such cases a self-incrimination certificate must be given. It has the effect that the evidence given by the witness may not be used directly or indirectly against the witness in court proceedings. The self-incrimination certificate is a safeguard and protects the witness.

52. The Bill will include amendments to the Evidence Act to clarify that a court must inform the witness of certain matters before the witness gives self-incriminating evidence (whether voluntarily or as a requirement by the court). These matters relate to how the privilege against self-incrimination works, the circumstances in which the witness can be required to give evidence and how any such evidence given is protected under a self-incrimination certificate.

53. The Bill will also include amendments to the Evidence Act to provide that certificates issued to persons required to disclose self-incriminatory evidence before a trial under a search or freezing order under prescribed State or Territory provisions will be mutually recognised in federal courts as if they had been issued under the Commonwealth Evidence Act. This will have the effect that self-incriminatory evidence in respect of which a certificate is given by a State or Territory court under a prescribed State or Territory provision may not be used directly or indirectly against the witness in proceedings in federal courts, in addition to a court of that State or Territory.

54. These amendments will strengthen the existing protections provided by self-incrimination certificates, and promote the right to be free from self-incrimination.

Bankruptcy Act 1966

55. Article 14(2) of the International Covenant on Civil and Political Rights (ICCPR) states that everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty. Item 14 of Schedule 1 of the Bill, through amendments to the Bankruptcy Act, will provide that if a declaration is contained in a statement that:

(a)

was received by the Official Receiver electronically, and

(b)

was purported to be made by a particular person,

the declaration is presumed to have been made by the person, in the absence of evidence to the contrary.

56. However, this presumption does not create a legal burden of proof upon the defendant under section 13.4 of the Criminal Code Act 1995, and while there is a presumption that the declaration was made by the person whose name is on the statement, this does not amount to a presumption of guilt. The defendant can put the prosecution to proof by adducing evidence to the contrary.

57. Australia's personal insolvency system can only function properly if the various statements that a person is required to give to the Official Receiver contain accurate information. Many of the statements that the Official Receiver receives are now provided to the Official Receiver electronically. Item 14 of Schedule 1 of the Bill will help to ensure that, in cases where a statement is received electronically and contains information that the submitter knows to be false, the submitter can be charged with an offence under section 267 of the Bankruptcy Act.

Copyright Act 1968

58. The amendments to the Copyright Act will extend the legal deposit scheme to require publishers to deliver copies of their works to the National Library of Australia (National Library) in electronic format. Section 195CB will create two new offences for failing to deliver National Library material in accordance with requirements set out in section 195CD.

59. Subsection 195CB(1) will create an offence for failing to deliver published material, whether in hardcopy or electronic form, that is not available online. This offence applies to material that is published in Australia.

60. Subsection 195CB(2) will create an offence for failing to deliver published electronic material that is available online. The publisher will not be required to deliver the material unless the National Library requests that material under section 195CC.

61. The penalty for these offences will be 10 penalty units. Both offences will be offences of strict liability.

62. The presumption of innocence is contained within article 14(2) of the International Covenant on Civil and Political Rights (ICCPR) and is one of the guarantees in relation to legal proceedings contained in article 14.

63. The presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt. Generally, consistency with the presumption of innocence requires the prosecution to prove each element of a criminal offence beyond reasonable doubt.

64. Strict liability removes a fault element that would otherwise attach to a physical element. Consequently, where strict liability applies to an element of an offence, that element will be made out if it is shown that the physical elements were engaged in, or existed. The prosecution is not required to prove fault.

65. Strict liability is appropriate and required for these offences as there are legitimate grounds for penalising persons lacking 'fault' in respect of the offences of either failing to deliver offline material with the National Library, or not complying with a request from the National Library. The punishment of these offences for persons lacking fault is likely to significantly enhance the effectiveness of the enforcement regime in deterring non-complying conduct. Furthermore, penalising persons lacking fault will place individuals and corporations on notice to guard against the possibility of any contravention. This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.

66. Lastly, the offences may be subject to an infringement notice scheme, and therefore, strict liability should be applied to all physical elements of the offences. An infringement notice scheme is appropriate for these offences as they are relatively minor offences, a high volume of contraventions is expected, and the penalty must be imposed immediately to be effective.

67. Consistent with the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers, the offences are not punishable by imprisonment, nor a fine of more than 60 penalty units (the offences are punishable by 10 penalty units).

68. However, the general defence of mistake of fact will be available to the defendant. This engages the presumption of innocence by placing a burden of proof on the defendant. Under international human rights law practice, a reverse onus provision will not violate the presumption of innocence if the law is reasonable in the circumstances and maintains the rights of the accused. The inclusion of this defence will ensure that persons who, for example, mistakenly believed that they had delivered the requested material to the National Library, but it was not received due to a technical fault may not be subjected to the penalty. In these circumstances, the evidential burden is placed on the defendant to provide evidence of the technical fault.

69. The legal deposit measures in Schedule 7 of the Bill will be compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. To the extent that these measures may limit those rights and freedoms, such limitations are reasonable, necessary and proportionate in achieving the intended outcomes of Schedule 7 of the Bill.

Conclusion

70. The Bill is compatible with human rights because it promotes rights, and to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

NOTES ON CLAUSES

PRELIMINARY

Clause 1-Short title

71. This clause provides that when the Civil Law and Justice Legislation Amendment Bill 2014 is enacted, it is to be cited as the Civil Law and Justice Legislation Amendment Act 2014.

Clause 2-Commencement

72. This clause sets out when various provisions of the Civil Law and Justice Legislation Amendment Act 2014 are to commence, as set out in the table.

73. Subclause 2(1) provides that each provision of the Act specified in column 1 of the table in subclause 2(1) 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.

74. Item 1 in the table provides that sections 1 to 3, which concern the formal aspects of the Act, as well as anything in the Act not elsewhere covered by the table, will commence on the day on which the Act receives Royal Assent.

75. Item 2 in the table provides that Schedules 1 to 6, which amend the Bankruptcy Act 1966, the International Arbitration Act 1974, the Family Law Act 1975, the Court Security Act 2013, the Evidence Act 1995, and the Protection of Movable Cultural Heritage Act 1986 commence the day after the Act receives Royal Assent.

76. Item 3 in the table provides that Schedule 7, which amends the Copyright Act 1968, commences the day after the end of the period of 6 months beginning on the day the Act receives Royal Assent. The reason for the delay in commencement of Schedule 7 is to allow the National Library of Australia (the National Library) time to update their online guidelines so their stakeholders know how to comply with the extended legal deposit scheme. This time will also be used by the National Library to consult with their stakeholders about the new requirements of the extended legal deposit scheme.

77. The note at the end of the table explains that the table relates only to the provisions of the Act as originally enacted. The table will not be amended to deal with any later amendments of the Act.

78. Subclause 2(2) provides that any information in column 3 of the table in subclause 2(1) is not part of the Act. It also clarifies that information may be inserted in column 3, or information in it may be edited, in any published version of the Act.

Clause 3-Schedules

79. Clause 3 provides that each Act specified in a Schedule to the Civil Law and Justice Legislation Amendment Act 2014 is amended as set out in the applicable items in the Schedule and any other item in a Schedule has effect according to its terms. This is a technical provision to give operational effect to the amendments contained in the Schedules.

SCHEDULE 1-BANKRUPTCY

GENERAL OUTLINE

80. Schedule 1 will make amendments to the Bankruptcy Act 1966.

81. The amendments to the Bankruptcy Act provide for:

•

the Official Trustee to act as a special trustee for other Government agencies

•

the Official Receiver to require a person to produce books without also having to require them to physically attend

•

support (either in the form of property or cash) given under the National Disability Insurance Scheme to not be divisible in bankruptcy

•

the offence of concealment under subsection 265(4) of the Bankruptcy Act to be expanded to ensure that it covers electronic fund transfers

•

section 267 of the Bankruptcy Act to be amended in order to provide that if a declaration is contained in a statement that:

(a)

was received by the Official Receiver electronically, and

(b)

was purported to be made by a particular person

the declaration is presumed to have been made by the person, in the absence of evidence to the contrary

•

the distinction in the Bankruptcy Act between indictable and summary offences to be aligned with the distinction in the Crimes Act 1914 between indictable and summary offences, and

•

the locus of certain offences in the Bankruptcy Act to be clarified.

Bankruptcy Act 1966

Item 1: Before subsection 18(1)

82. This item will insert the heading 'Corporate status of Official Trustee' before subsection 18(1) of the Bankruptcy Act 1966.

Item 2: After subsection 18(2)

83. The instrument establishing the Australian Financial Security Authority (AFSA) (formerly the Insolvency Trustee Service Australia) provided that one of AFSA's functions is to act as a special trustee for other Government agencies. This typically involves the seizure and sale of property pursuant to court orders and is now most commonly undertaken in relation to child support matters where AFSA obtains orders for the enforcement of child support arrears. Generally, such an order identifies the property to be sold to enforce the debt and directs that the Official Receiver take control of the property and sell it.

84. In these matters it is necessary to transfer the title of real property before it can be sold. However in most States and Territories it is not legally possible for the Official Receiver to be listed as the owner of record in relation to real property. As a result individual AFSA employees have being listed as the owner of record for property. This is undesirable as it means that AFSA employees become personally responsible for taxes associated with the property and may be liable if a person injures themselves while on the property.

85. Item 2 will expand the functions of the Official Trustee to include acting in accordance with an order of a court relating to the payment of a debt due by a person to the Commonwealth or a Commonwealth authority.

86. Such an order may, for example, provide for the Official Trustee to:

(a)

take custody of, control and own property as security for payment of such a debt, and

(b)

sell the property, and

(c)

apply the proceeds of the sale wholly or partly toward the payment of the debt.

87. The new subsection 18(3) will include a note which recognises that other provisions of the Bankruptcy Act 1966 and other laws of the Commonwealth confer other functions on the Official Trustee.

88. This expansion of the functions of the Official Trustee ensures that where a debt is owed to the Commonwealth or a Commonwealth authority, the Official Trustee can be listed on the title deed. Since the Official Trustee has a separate corporate identity, it can hold property in its own right.

Item 3: Before subsection 18(8)

89. This item will insert the heading 'Official Receiver acting for Official Trustee' before subsection 18(8) of the Bankruptcy Act 1966.

Item 4: Before subsection 18(8B)

90. This item will insert the heading 'Inspector-General acting for Official Trustee' before subsection 18(8B) of the Bankruptcy Act 1966.

Item 5: Before subsection 18(9)

91. This item will insert the heading 'State of mind of Official Trustee' before subsection 18(9) of the Bankruptcy Act 1966.

Item 6: Before subsection 18(11)

92. This item will insert the heading 'General interpretation provisions' before subsection 18(11) of the Bankruptcy Act 1966.

Item 7: Before paragraph 20B(8)(a)

93. Subsection 20B(3) of the Bankruptcy Act 1966 provides that all moneys held by the Official Trustee (other than those to which subsection 20B(8) applies) are to form part of the Common Investment Fund (which is established by subsection 20B(1)).

94. Item 7 will amend subsection 20B(8) through the insertion of new paragraph (aa). The new paragraph will provide that money received or held by the Official Trustee that is related to the Official Trustee acting in its new capacity under the new subsection 18(3) does not form part of the Common Investment Fund.

Item 8: At the end of section 27

95. Section 273 of the Bankruptcy Act 1966 provides for the trial of offences. Section 273 will be repealed and replaced by a new section 273 (see item 16).

96. However, case law suggests that a combined reading of the existing section 27 and section 273 of the Bankruptcy Act provides State and Territory courts with the authority to determine ancillary bankruptcy matters in criminal proceedings.

97. Item 8 will insert a new subsection (2) which will provide (to avoid doubt) that subsection 27(1) does not:

(a)

confer jurisdiction in a criminal matter, or

(b)

exclude the jurisdiction of a court of a State or Territory under the Judiciary Act 1903 in a criminal matter relating to the Bankruptcy Act.

98. This provision will clarify the jurisdiction of the State and Territory courts. It will ensure that despite the repeal of the existing section 273 of the Bankruptcy Act, State and Territory courts will still be able to determine ancillary bankruptcy matters when trying offences under the Bankruptcy Act.

Item 9 and Item 10: Subsection 77C(1) and after paragraph 77C(1)(b)

99. Subparagraph 77C(1)(b)(ii) provides that the Official Receiver may by written notice given to a person require the person to attend before the Official Receiver and produce all books in the person's possession relating to any matters connected with the performance of the functions of the Official Receiver or a trustee under the Bankruptcy Act 1966.

100. Item 9 will omit 'both' in subsection 77C(1) and substitute 'more' in its place.

101. Item 10 will add an additional paragraph (c) after paragraph 77C(1)(b) which will provide that the Official Receiver may, by written notice given to a person, require them to produce all books in the person's possession relating to any matters connected with the performance of the functions of the Official Receiver or a trustee under the Bankruptcy Act.

102. The effect of this amendment will be to enable the Official Receiver to require that a person produces books without having to require them to attend before the Official Receiver.

Item 11: At the end of subsection 116(2)

103. This item will insert a provision which provides that a bankrupt's property is not divisible property (and does not vest in the trustee) where it was a 'support' that was funded under the National Disability Insurance Scheme or an 'NDIS amount'. The definitions of 'support' and 'NDIS amount' that applies for the purposes of this item are the ones that are found in the National Disability Insurance Scheme Act 2013.

104. This item will ensure that where a bankrupt has received payments or property under the National Disability Insurance Scheme Act, the property will not vest in the trustee.

Item 12: Application of paragraph 116(2)(s) of the Bankruptcy Act 1966

105. This item will insert a provision which will provide that item 11 will apply to bankrupts whose bankruptcies are taken under section 115 of the Bankruptcy Act 1966 to commence on or after the commencement of item 11 whether the property or payment in question was acquired or paid before, on or after the commencement of item 11.

Item 13: Paragraph 265(4)(a)

106. Paragraph 265(4)(a) of the Bankruptcy Act 1966 provides that 'A person who, after the presentation of a petition on which, or by virtue of the presentation of which, he or she becomes a bankrupt' commits an offence if they conceal or remove any part of their property to the value of $20 or more.

107. Item 13 will omit the reference to 'or removes' in paragraph 265(4)(a) and replace it with 'removes, disposes of or deals with'.

108. The current wording in paragraph 265(4)(a) arguably limits the offence to the physical removal of tangible property. The new wording will extend the scope of paragraph 265(4)(a) to cover electronic financial transactions such as electronic funds transfers.

Item 14: At the end of section 267

109. Section 267 of the Bankruptcy Act 1966 makes it an offence to make a declaration to which section 267 applies that the person knows to be false.

110. Item 14 will add a new subsection (3) to section 267 which states that if a declaration is contained in a statement that:

(a)

was received by the Official Receiver electronically, and

(b)

was purported to be made by a particular person,

the declaration is presumed to have been made by the person, in the absence of evidence to the contrary.

111. Australia's personal insolvency system can only function properly if the various statements that a person is required to give to the Official Receiver contain accurate information.

112. Many of the statements that the Official Receiver receives are now provided to the Official Receiver electronically. Item 14 will help to ensure that statements received electronically are treated in the same way as declarations received in hardcopy.

113. This amendment will not impose a legal burden of proof upon the defendant under section 13.4 of the Criminal Code Act 1995.

Item 15: Application of subsection 267(3) of the Bankruptcy Act 1966

114. Item 15 will provide that subsection 267(3) of the Bankruptcy Act 1966 (to be inserted by item 14) applies to statements received electronically on or after the commencement of that subsection.

Item 16: Section 273

115. Item 16 will repeal section 273 of the Bankruptcy Act 1966 and substitute a new section 273.

Repeal of existing section 273

116. Section 273 provides for the trial of offences under the Bankruptcy Act.

117. Subsection 273(1) provides that subject to section 273 an offence against the Bankruptcy Act, other than an offence that is punishable by a fine only, is punishable either on indictment or on summary conviction.

118. Subsection 273(1) makes offences that would be summary offences under the Crimes Act 1914 indictable offences. For example, an offence under section 80 of the Bankruptcy Act is indictable for the purposes of subsection 273(1) even though the penalty is only six months imprisonment.

119. The repeal of subsection 273(1) will mean that the demarcation between summary and indictable offences in the Bankruptcy Act will be governed by section 4G and section 4H of the Crimes Act.

120. Subsection 273(2) will be repealed as it derives its application from subsection 273(1).

121. Subsection 273(3) of the Bankruptcy Act provides that (subject to subsection 273(4)) an offence against the Bankruptcy Act that is punishable by a fine only is punishable by a court of summary jurisdiction.

122. Subsection 273(3) will be repealed and the jurisdiction of a court of summary jurisdiction to try an offence against the Bankruptcy Act that is punishable by a fine only will be governed by the Crimes Act.

123. Subsection 273(4) of the Bankruptcy Act provides that the Federal Court has jurisdiction to try summarily any offence against the Bankruptcy Act.

124. As bankruptcy offences are rarely (if ever) tried in the Federal Court and there is no reason for them to be tried in the Federal Court, subsection 273(4) will be repealed.

125. Subsection 273(5) will be repealed as it derives its application from subsection 273(4).

The new section 273

126. Currently the locus of certain offences in the Bankruptcy Act may be unclear. The purpose of the new section 273 is to put the issue of territoriality beyond doubt.

127. Subsection (1) of the new section 273 provides that it applies where a physical element of an offence under the Bankruptcy Act involves:

(a)

a refusal, failure or omission to act, or

(b)

a contravention constituted by a refusal, failure or omission to act.

128. Subsection (2) of the new section 273 provides that, in relation to an offence that comes within the scope of the new section 273, a person may be charged with, and convicted of, the offence as if the place of the refusal, omission or contravention were any of the following:

(a)

the place where the person should have done the act

(b)

the person's usual place of residence at the time the act should have been done, or

(c)

the person's last place of residence known to the Official Receiver.

129. Subsection (3) of the new section 273 provides that subsection (2) of the new section 273 is subject to section 80 of the Commonwealth of Australia Constitution Act (the Constitution). Section 80 of the Constitution provides that '[t]he trial on indictment of any offence against the law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes'.

130. The effect of section 80 of the Constitution is that if an offence under the Bankruptcy Act is tried on indictment then the trial will be held in the State where the offence was committed despite the new section 273.

131. Subsection (4) of the new section 273 provides that subsection 2 of the new provision does not apply to an offence against subsections 264A(1A), 264C(1) or 267F(1). As subsection 264A(1A) concerns a failure of a person to attend court the locus of an offence under that subsection is clear. Similarly, as subsections 264C and 267F(1) concern a refusal to be sworn or give evidence the locus of an offence under those subsections is also clear.

Item 17: Application of section 273 of the Bankruptcy Act 1966

132. This provision provides that the new section 273 applies whether the refusal, failure, omission or contravention occurred before, on or after the commencement of item 16.

SCHEDULE 2-INTERNATIONAL ARBITRATION

GENERAL OUTLINE

133. Schedule 2 will make amendments to the International Arbitration Act 1974. The International Arbitration Act implements Australia's obligations to enforce and recognise foreign arbitration agreements and arbitral awards under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards done at New York on 10 June 1958 (the New York Convention). The Act also gives the force of law to the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration (the Model Law) as the primary arbitral law that governs the conduct of international arbitrations taking place in Australia.

134. The Act was amended in 2010 to implement changes to the UNICTRAL model law that were adopted in 2006. This new amendment builds upon the 2010 amendments to clarify the application of the Act to international commercial arbitration agreements concluded prior to 6 July 2010.

International Arbitration Act 1974

Item 1: Section 21

135. Section 21 of the International Arbitration Act 1974 currently provides that if the United Nations Commission on International Trade Law (UNCITRAL) Model Law applies to an arbitration, State and Territory law does not apply to that arbitration. Section 21 came into effect on 6 July 2010.

136. Item 1 will insert (1) before the text of section 21.

Item 2: At the end of section 21

137. Item 2 will add subsection (2) to section 21, which will clarify that section 21 applies to arbitrations pursuant to arbitration agreements made before, on or after 6 July 2010. This new provision will clarify the retrospective application of section 21, providing certainty to private parties with arbitration agreements completed before 6 July 2010.

SCHEDULE 3-FAMILY LAW

GENERAL OUTLINE

138. Schedule 3 will make minor, technical amendments to improve the operation of the Family Law Act 1975. The amendments will remove obsolete references and ensure the use of consistent language.

Family Law Act 1975

Item 1: Subsection 10C(2) and 10G(2)

139. Section 10C of the Family Law Act 1975 defines, and sets out matters that are relevant to the definition of, the phrase 'family counsellor'. Subsection 10C(2) requires the Minister to publish a list of organisations designated for the purposes of paragraph 10C(1)(b) of the definition of family counsellor.

140. This amendment removes the words 'at least annually' from subsection 10C(2). The list of organisations designated for the purposes of the definition of family counsellor in the Act is continuously available through publication on the internet so a requirement to publish that list annually is redundant.

141. Section 10G of the Family Law Act defines, and sets out matters that are relevant to the definition of, the phrase 'family dispute resolution practitioner'. Subsection 10G(2) requires the Minister to publish a list of organisations designated for the purposes of paragraph 10G(1)(b) of the definition of family dispute resolution practitioner.

142. This amendment will remove the words 'at least annually' from subsection 10G(2). The list of organisations designated for the purposes of the definition of family dispute resolution practitioner in the Act is continuously available through publication on the internet so a requirement to publish that list annually is redundant. This amendment will also ensure consistency with subsection 10C(2).

Item 2: Subsection 65F(4)

143. Section 65F of the Family Law Act 1975 establishes the general requirements relating to counselling that must be satisfied before a court can make a parenting order. The section also sets out the exceptions to that general rule.

144. Subsection 65F(4) will be repealed because it contains a definition of the term 'proceedings for a parenting order', which no longer exists in section 65F, as a result of the repeal of subsection 65F(1) in 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006.

Item 3: Paragraph 65ZB(3)(b)

145. Section 65ZB prohibits the departure, to a destination outside Australia, of children in relation to whom certain parenting orders are pending. The section also identifies exceptions to, and the penalty for breaching, that prohibition.

146. This amendment will add the phrase 'the child leaves' at the beginning of paragraph 65ZB(3)(b). This amendment will correct an error in the existing wording of the provision and ensures consistency with the mirror requirement contained in paragraph 65ZA(3)(b).

Item 4: Paragraph 68R(5)(b)

147. Section 68R of the Family Law Act 1975 deals with various aspects relating to the ability of a court making or varying a family violence order to deal with an existing order, injunction or arrangement under the Family Law Act in certain circumstances.

148. This amendment removes the phrase 'contact [with both parents]' from paragraph 68R(5)(b) and replaces it with the phrase 'spending time [with both parents]' to ensure that the language of this paragraph is consistent with the language used elsewhere in section 68R.

Item 5: After paragraph 121(9)(a)

149. Section 121 of the Family Law Act 1975 restricts the publication of any accounts of any proceedings, or parts of any proceedings, under the Act that identify the parties or others involved in the case. The restriction applies to publication, or other dissemination, to the public or a section of the public, and can apply to disclosures online as well as through the media. Breaches of section 121 are offences punishable by imprisonment of up to one year.

150. Subsection 121(9) sets out the circumstances in which the general prohibition does not apply. The fact that the publication or dissemination of certain information is permitted by the explicit inclusion of an exception in section 121 will not make the release of information lawful if the provision of that information is prohibited by other legislation.

151. The Attorney-General's Department engaged Professor Richard Chisholm (former Family Court Judge) to chair a taskforce to report on how experts' reports can be better shared between the federal family law system and the State and Territory child protection systems. Professor Chisholm's report identified the existence of differing views about whether section 121 operates to prohibit the provision of family court reports to agencies within the State and Territory child protection systems. Because of these differing views some child welfare agencies currently seek explicit court orders to obtain court documents, such as experts' reports. This is despite the apparent strength of the contrary view that the release of such information to a State or Territory child welfare authority is not publication or dissemination to the public or to a section of the public. The report recommended that the Commonwealth review the wording of section 121 and consider removing this doubt to state explicitly that it does not apply to the provision of information to the child protection system.

152. This amendment will clarify the exceptions to section 121(9) by explicitly permitting the communication of any pleading, transcript of evidence or other document to a prescribed State or Territory child welfare authority. The purpose of explicitly authorising the release of this information is to ensure that there is appropriate information sharing between the family law and child protection systems to ensure the best possible outcomes for children. The amendment will ensure that child welfare authorities have access to any relevant family law material and enhance interactions between the family law and child protection systems.

Item 6: Application of paragraph 121(9)(aa)

153. This amendment will remove any doubt that new paragraph 121(9)(aa) applies in relation to proceedings occurring before, on or after the commencement date of that provision.

SCHEDULE 4-COURT SECURITY

GENERAL OUTLINE

155. Schedule 4 will make amendments to the Court Security Act 2013 and make related amendments to the Family Law Act 1975.

156. The Court Security Act will be amended to provide for the retention and disposal of unclaimed items seized by court security officers and to clarify the processes by which court security orders made under the Act can be varied and revoked.

157. Amendments will be made to the Family Law Act to clarify the appeal rights available for court security orders made by the Family Court, and to create an appeal pathway for individuals to challenge court security orders made by the Family Court of Western Australia.

Court Security Act 2013

Item 1: Subsection 16(4)

158. Section 16 deals with how a security officer or an authorised court officer should handle dangerous items that are requested to be left for safekeeping or seized while the person is on court premises.

159. Subsection 16(4) currently provides that if a dangerous item is seized under subsection 16(3) by a security officer or an authorised court officer, he or she 'must' give the item to a police officer as soon as reasonably practicable.

160. Item 1 will amend subsection 16(4) to relax the current obligation on a security officer or an authorised officer to give a seized item to a police officer. The amendment will instead provide that a security officer or an authorised court officer 'must take reasonable steps' to give the item to a police officer as soon as reasonably practicable.

161. In practice, police officers are reluctant to receive knives and other potential weapons where there is no offence provision which covers the confiscation. This amendment will ensure that security officers or court security officers will not be in breach of their obligations under the Act if a police officer refuses to receive these dangerous items.

Item 2: At the end of section 16

162. Item 2 will add a note at the end of section 16 to direct the reader to section 48A, which also deals with disposal of items given up on request, or seized, under section 16.

163. Item 10 will insert new section 48A, which will provide the courts with authority to dispose of dangerous items given up on request or seized under section 16.

Item 3: Paragraph 27(3)(a)

164. Section 27 of the Court Security Act 2013 deals with the power to seize dangerous items.

165. Paragraph 27(3)(a) currently provides that if a dangerous item is seized under section 27 by a security officer, the security officer must ensure that the item is given to a police officer as soon as reasonably practicable.

166. This item will amend paragraph 27(3)(a) to relax the obligation to ensure that a seized item is given to a police officer by omitting 'ensure that the item is given' and substituting 'take reasonable steps to give the item' to a police officer.

167. In practice, police officers are reluctant to receive knives and other potential weapons where there is no offence provision which covers the confiscation. This amendment will ensure that security officers will not be in breach of their obligations under the Act if a police officer refuses to receive these dangerous items.

Item 4: At the end of section 27

168. This item will add a note at the end of section 27 to direct the reader to section 48A of the Court Security Act 2013, which also deals with disposal of items given up on request, or seized, under section 27.

169. Item 10 will insert new section 48A, which will provide the courts authority to dispose of dangerous items seized under section 27.

Item 5: At the end of subsection 41(1)

170. Subsection 41(1) of the Court Security Act 2013 provides for the making of court security orders. This item will add three notes at the end of subsection 41(1). The notes will assist readers to locate related provisions.

171. Note 1 will direct the reader to section 43 for interim court security orders.

172. Note 2 will direct the reader to section 45 for variation or revocation of a court security order.

173. Note 3 will direct readers to see Part X of the Family Law Act 1975 for appeals from the making of a court security order made by a member of the Family Court of Australia or the Family Court of Western Australia. It will also direct readers to see Division 2 of Part III of the Federal Court of Australia Act 1976 for appeals from the making of a court security order made by a member of the Federal Circuit Court of Australia.

Item 6: Section 45

174. Section 45 of the Court Security Act 2013 currently provides that a member of the court who may make a court security order may vary or revoke a court security order.

175. This item will amend section 45 by providing that a court security order may be varied or revoked 'on application under section 45A'. This is a consequential amendment, which reflects the insertion of new section 45A to be inserted by item 8.

Item 7: At the end of section 45

176. Section 45 of the Court Security Act 2013 provides a member of a court who may make a court security order with the power to vary or revoke a court security order relating to the member's court.

177. Item 7 will add a note to the end of section 45. The note will direct readers to see Part X of the Family Law Act 1975 for appeals from the variation or revocation of a court security order made by a member of the Family Court of Australia or the Family Court of Western Australia. It will also direct readers to see Division 2 of Part III of the Federal Court of Australia Act 1976 for appeals from the variation or revocation of a court security order made by a member of the Federal Circuit Court of Australia.

178. The note will assist readers to locate provisions relevant to the variation or revocation of a court security order.

Item 8: After section 45

179. Court security orders are made under Part 4 of the Court Security Act 2013. They are similar in nature to restraining orders under state and territory legislation. These orders restrict the behaviour of a specified person in or around court premises, or in relation to a member or official of a court. Section 45 currently provides that a member of the court who may make a court security order may vary or revoke a court security order. However, it does not provide a procedure by which any other parties may apply to have such orders varied or revoked.

180. Item 8 will insert new section 45A, which will provide a process by which court security orders can be varied or revoked. Given the potentially serious implications for persons against whom court security orders are made, it is important that there is clarity about what review and appeal rights are available in relation to such orders.

181. Subsection 45A(1) will provide that either the administrative head of a court or the person specified in a court security order may make an application for a variation or revocation of a court security order.

182. Subsection 45A(2) will provide that the party who makes an application seeking the variation or revocation will be required to notify the other party of that intention, and both parties will be entitled to be heard on the application.

Item 9: Application of section 45A of the Court Security Act 2013

183. Item 9 will provide that section 45A applies to the variation or revocation, on or after the commencement of section 45A, of court security orders made before, on or after the commencement of section 45A.

184. Section 45A (to be inserted by item 8) will provide for the making of applications for the variation or revocation of court security orders.

Item 10: After section 48

185. The Court Security Act 2013 currently provides that dangerous items that are given up on request or seized by a security officer or an authorised court officer under sections 16 and 27 must either be returned to the person upon request or given to a police officer. However, in practice many people do not seek the return of their items. Police officers are also generally reluctant to receive knives and other potential weapons where there is no offence provision which covers the confiscation. Further, the Court Security Act does not currently provide the courts with authority to dispose of these items. This has led to concerns about the accumulation of unclaimed dangerous items by the courts over an indefinite period of time.

186. Item 10 will insert new section 48A, which will give the courts clear authority to dispose of dangerous items given up or seized under the Court Security Act.

187. Subsection 48A(1) will provide that if a dangerous item is held after being given up on request or seized under section 16 or seized under section 27 of the Court Security Act, and that item is uncollected, abandoned or unclaimed for a period of 6 months, the item may, by order of the administrative head of the court, be destroyed or otherwise disposed of. This will ensure that the courts have the power to hold and dispose of dangerous items. The period of six months is a reasonable period of time within which a person may seek the return of the person's item.

188. To ensure constitutional validity of acquisition powers, and to protect people against unjust acquisitions under subsection 48A(1), subsections 48A(2) and (3) will require the Commonwealth to pay reasonable compensation if the disposal of items would result in an acquisition of property otherwise than on just terms. Where the Commonwealth and a person disagree over the amount of the compensation, the person may take the matter to a court of competent jurisdiction, to determine reasonable compensation.

Item 11: Application of section 48A of the Court Security Act 2013

189. Item 11 will provide that section 48A of the Court Security Act 2013 applies to the disposal on or after the commencement of section 48A, of items given up or seized before, on or after the commencement of section 48A. This will enable the courts to dispose of items that have already been held for a significant amount of time.

190. Section 48A (to be inserted by item 10) will provide for the disposal of dangerous items.

Family Law Act 1975

Item 12: At the end of subsection 94(1)

191. Subsection 94(1) of the Family Law Act 1975 sets out when an appeal lies to a Full Court of the Family Court from certain courts other than the Federal Circuit Court and the Magistrates Court of Western Australia.

192. This item will add a note at the end of subsection 94(1). The note provides that subsection 94(1) applies to appeals from the making, variation and revocation of court security orders under the Court Security Act 2013 as described in section 94AB of the Family Law Act.

193. This item is consequential to the insertion of new section 94AB (to be inserted by item 14) and will refer readers to this new provision.

Item 13: At the end of subsections 94AAA(1A)

194. Subsection 94AAA(1A) of the Family Law Act 1975 sets out when an appeal lies to the Family Court from the Magistrates Court of Western Australia.

195. Item 13 will add a note at the end of subsection 94AAA(1A). The note provides that subsection 94AAA(1A) applies to appeals from the making, variation and revocation of court security orders under the Court Security Act 2013 as described in new section 94AB (to be inserted by item 14).

196. This item is consequential to the insertion of new section 94AB.

Item 14: After section 94AA

197. Part X of the Family Law Act 1975 deals with appeals in the family law jurisdiction. Under the existing provisions, there are no appeal rights for court security orders made by the Family Court or the Family Court of Western Australia.

198. Item 14 will create an appeals pathway for the Family Court and the Family Court of Western Australia by inserting new section 94AB. This new section will provide that appeals in relation to the making, variation or revocation of a court security order made by the Family Court or the Family Court of Western Australia may be appealed in the same way as other orders made by those courts if they are exercising family law jurisdiction.

199. Subsection 94AB(1) will provide that section 94AB deals with how Part X of the Family Law Act is applied to the making, variation or revocation of a court security order under Part 4 of the Court Security Act 2013 by a member (as defined in the Court Security Act) of the Family Court or the Family Court of Western Australia.

200. Subsection 94AB(2) will provide that such a decision can be appealed as if it were a decree of the Family Court or the Family Court of Western Australia exercising original jurisdiction under the Family Law Act. Subsection 94AB(2) will contain a legislative annotation, which notes that if the member is a member of the Family Court or a member of the Family Court of Western Australia other than a Family Law Magistrate of Western Australia, then an appeal from such a decision lies under subsection 94(1) of Part X of the Family Law Act.

201. If a court security order is made, varied or revoked by a member of the Family Court of Western Australia and he or she is a Family Law Magistrate of Western Australia, then subsection 94AB(3) will apply.

202. Subsection 94AB(3) will provide that such decisions may be appealed under Part X as if it were a decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia exercising original jurisdiction under the Family Law Act. Further, proceedings for the making, variation or revocation of a court security order are taken to be proceedings in the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia. The legislative annotation at the end of subsection 94AB(3) will note that an appeal in this circumstance lies under subsection 94AAA(1A) of Part X of the Family Law Act.

Item 15: Application of section 94AB of the Family Law Act 1975

203. Item 15 will provide that section 94AB (to be inserted by 14) applies to appeals instituted on or after the commencement of that section from the making, variation and revocation of court security orders before, on or after that commencement. This will ensure that such appeals can only be brought once section 94AB has commenced.

204. Section 94AB will provide for appeals relating to court security orders.

SCHEDULE 5-EVIDENCE

GENERAL OUTLINE

205. Schedule 5 will make amendments to the Evidence Act 1995.

206. Part 1 of Schedule 5 contains amendments that will mirror minor amendments to the Model Uniform Evidence Bill as endorsed by the then Standing Committee of Attorneys-General (SCAG) in May 2010 and relate to self-incrimination certificates.

207. Part 2 of Schedule 5 contains amendments that will remove all references in the Act to the application of its provisions to the Australian Capital Territory (ACT). Following the commencement of the Evidence Act 2011 (ACT) on 1 March 2012, it was proclaimed on 9 February 2012 that 1 March 2012 was the day on which the provisions of the Commonwealth Evidence Act (with some exceptions) ceased to apply to all proceedings in an ACT court. As the Proclamation made references to the application of the Commonwealth Evidence Act to the ACT obsolete, these references will be removed in accordance with clearer Commonwealth laws principles.

208. Part 3 of Schedule 5 contains amendments that will remove all notes in the Evidence Act which indicate where it differs from the evidence legislation of New South Wales. These notes will be replaced with a table setting out the differences between the Commonwealth and the evidence legislation of States and Territories whose evidence legislation is based on the Model Uniform Evidence Bill. The table is included at Attachment B, and is a point in time reference. Updates to the table will be available on the Attorney-General's Department website. The table will have no substantive legal effect but will assist readers where differences in evidence law exist.

209. Part 4 of Schedule 5 will contain other miscellaneous amendments. One amendment will mirror minor amendments to the Model Uniform Evidence Bill as endorsed by the then Standing Committee of Attorneys-General in May 2010 and relates to the definition of 'unavailability of persons'. A minor amendment to the title of section 31 of the Evidence Act for consistency with the terminology used in the body of the section is also included.

PART 1-PRIVILEGE IN RESPECT OF SELF-INCRIMINATION

Evidence Act 1995 privilege

Item 1: Subsection 128(3)

210. This item will amend subsection 128(3) to clarify that the privilege against self-incrimination operates subject to subsection 128(4), which outlines circumstances where a court may require a person to give evidence.

211. This amendment will ensure consistency with the Model Uniform Evidence Bill which was amended by the then Standing Committee of Attorneys-General in May 2010.

Item 2: Subsection 128(3)

212. This item will amend subsection 128(3) to provide that a court is not to require a witness to give particular evidence if the court determines that that particular evidence is self-incriminating under subsections 128(1) and (2).

213. The amendment will ensure consistency with the Model Uniform Evidence Bill which was amended by the then Standing Committee of Attorneys-General in May 2010.

214. The amendment will also clarify that the court must inform the witness of certain matters before the witness gives self-incriminating evidence (whether voluntarily or after being required to do so under subsection 128(4)). These matters relate to how the privilege against self-incrimination works, when self-incrimination certificates will be given and the effect of such a certificate.

Item 3: At the end of section 128A

215. This item will amend the Evidence Act 1995 so that a self-incrimination certificate issued under a prescribed State or Territory provision will be recognised in federal courts as if it had been issued under section 128A of the Evidence Act.

216. Section 128A provides a similar certification process to that in section 128, for dealing with objections on the grounds of self-incrimination made by a person who is subject to a search order (Anton Pillar) or a freezing order (Mareva) in civil proceedings, other than under proceeds of crime legislation. Under these sections, evidence of information disclosed by a person in respect of which a self-incrimination certificate has been given, cannot be used against the person.

217. The amendment mirrors subsections 128(12)-(14) of the Act to ensure that self-incrimination certificates issued to persons subject to disclosure orders (i.e. required to provide evidence before trial) under a prescribed State and Territory provision can be relied on as if they were issued under the Evidence Act.

218. These amendments were endorsed by the then Standing Committee of Attorneys-General in May 2010 to ensure that self-incrimination certificates are recognised in all jurisdictions irrespective of where they are issued.

PART 2-APPLICATION TO THE AUSTRALIAN CAPITAL TERRITORY

Evidence Act 1995

Item 4: Chapter 1 (introductory note)

219. This item will amend the introductory note to chapter 1 to remove the reference to 'and ACT courts'.

220. Currently, subsection 4(6) of the Evidence Act 1995 states that the Evidence Act applies to all proceedings in an Australian Capital Territory (ACT) court, until a day fixed by Proclamation. Following the commencement of the Evidence Act 2011 (ACT), it was proclaimed on 9 February 2012 that 1 March 2012 was the day the Commonwealth Evidence Act ceased to generally apply to proceedings in an ACT court.

221. While this reference is obsolete and has no legal effect due to the Proclamation, it may be misleading and will be removed in accordance with clearer Commonwealth laws principles.

Item 5: Subsection 4(1)

222. This item will amend subsection 4(1) to remove the reference to 'or an ACT court'.

223. Currently, subsection 4(6) of the Evidence Act 1995 states that the Evidence Act applies to all proceedings in an Australian Capital Territory (ACT) court, until a day fixed by Proclamation. Following the commencement of the Evidence Act 2011 (ACT), it was proclaimed on 9 February 2012 that 1 March 2012 was the day the Commonwealth Evidence Act ceased to generally apply to proceedings in an ACT court.

224. While this reference is obsolete and has no legal effect due to the Proclamation, it may be misleading and will be removed in accordance with clearer Commonwealth laws principles.

Item 6: Subsection 4(1) (note 2)

225. This item will amend note 2 under subsection 4(1) to remove the reference to 'ACT court' being a defined term in the Dictionary.

226. Currently, subsection 4(6) of the Evidence Act 1995 states that the Evidence Act applies to all proceedings in an Australian Capital Territory (ACT) court, until a day fixed by Proclamation. Following the commencement of the Evidence Act 2011 (ACT), it was proclaimed on 9 February 2012 that 1 March 2012 was the day the Commonwealth Evidence Act ceased to generally apply to proceedings in an ACT court.

227. While this reference is obsolete and has no legal effect due to the Proclamation, it may be misleading and will be removed in accordance with clearer Commonwealth laws principles.

228. The definition of 'ACT court' in the Dictionary will be repealed by item 20.

Item 7: Subsection 4(1) (note 3)

229. This item will amend note 3 under subsection 4(1) to remove the reference to 'or ACT courts'.

230. Currently, subsection 4(6) of the Evidence Act 1995 states that the Evidence Act applies to all proceedings in an Australian Capital Territory (ACT) court, until a day fixed by Proclamation. Following the commencement of the Evidence Act 2011 (ACT), it was proclaimed on 9 February 2012 that 1 March 2012 was the day the Commonwealth Evidence Act ceased to generally apply to proceedings in an ACT court.

231. While this reference is obsolete and has no legal effect due to the Proclamation, it may be misleading and will be removed in accordance with clearer Commonwealth laws principles.

Item 8: Paragraph 4(5)(b)

232. This item will amend paragraph 4(5)(b) to add a reference to the Australian Capital Territory (ACT).

233. Subsection 4(5) provides that the Evidence Act 1995 (other than sections 185,186 and 187) does not apply to certain appeals or reviews of a decision such as:

•

an appeal from a court of the Northern Territory or an external Territory (paragraph 4(5)(b)), and

•

on or after the day fixed by Proclamation under subsection (6)-an appeal from an ACT court (paragraph 4(5)(c)).

234. Currently, subsection 4(6) of the Evidence Act states that the Evidence Act applies to all proceedings in an ACT court, until a day fixed by Proclamation. Following the commencement of the Evidence Act 2011 (ACT), it was proclaimed on 9 February 2012 that 1 March 2012 was the day the Commonwealth Evidence Act ceased to generally apply to proceedings in an ACT court.

235. The effect of this amendment is to provide that the Evidence Act (other than sections 185,186 and 187) does not apply to an appeal from a court of the ACT (in addition to a court of the Northern Territory or an external Territory).

236. The amendment will reflect the current law that the Commonwealth Evidence Act does not apply to appeals from an ACT court, as provided by paragraph 4(5)(c). The amendment will not change the current substance of the law, but will be made in accordance with clearer Commonwealth laws principles as the current text of paragraph 4(5)(b) may be misleading.

237. This item is to be read with item 9.

Item 9: Paragraphs 4(5)(c) and (d)

238. This item will repeal paragraphs 4(5)(c) and (d).

239. Subsection 4(5) sets out the proceedings to which the Evidence Act 1995 (other than sections 185,186 and 187) does not apply. Paragraph 4(5)(c) provides that the Evidence Act does not apply to an appeal from an Australian Capital Territory (ACT) court on or after the day fixed by Proclamation.

240. Paragraph 4(5)(d) provides that the Evidence Act does not apply to a review of a decision or order of a magistrate (other than a review of a decision or order of a magistrate of the ACT) and any appeal from such a review until the day fixed by Proclamation.^[2]

241. Currently, subsection 4(6) of the Evidence Act states that the Evidence Act applies to all proceedings in an ACT court, until a day fixed by Proclamation. Following the commencement of the Evidence Act 2011 (ACT), it was proclaimed on 9 February 2012 that 1 March 2012 was the day the Commonwealth Evidence Act ceased to generally apply to proceedings in an ACT court.

242. Item 8 above amends paragraph 4(5)(b) to provide that the provisions of the Evidence Act do not apply to an appeal from an ACT court. The new paragraph 4(5)(b) will duplicate the substance of paragraph 4(5)(c). Paragraph 4(5)(c) is now unnecessary and will be removed in accordance with clearer Commonwealth laws principles.

243. Paragraph 4(5)(d) only functions until the day fixed by Proclamation under subsection 4(5). As this day has passed, paragraph 4(5)(d) ceases to have utility and will be removed in accordance with clearer Commonwealth laws principles.

Item 10: Paragraph 4(5)(e)

244. This item will amend paragraph 4(5)(e) to remove the reference to 'on or after that day -'.

245. Paragraph 4(5)(e) presently provides that on or after a day fixed by Proclamation, the Evidence Act (other than sections 185,186 and 187) does not apply to a review of a decision or order of a magistrate and any appeal from such a review.^[3]

246. Currently, subsection 4(6) of the Evidence Act 1995 states that the Evidence Act applies to all proceedings in an Australian Capital Territory (ACT) court, until a day fixed by Proclamation. Following the commencement of the Evidence Act 2011 (ACT), it was proclaimed on 9 February 2012 that 1 March 2012 was the day the Commonwealth Evidence Act ceased to generally apply to proceedings in an ACT court.

247. Paragraph 4(5)(e) commences functioning on or after the day fixed by Proclamation. As this day has passed, the reference to 'on or after that day [fixed by Proclamation]-' is unnecessary and will be removed in accordance with clearer Commonwealth laws principles.

Item 11: Subsection 4(6) (not including the note)

248. This item will repeal subsection 4(6) (except the note).

249. Currently, subsection 4(6) states that the Evidence Act 1995 applies to all proceedings in an Australian Capital Territory (ACT) court, until a day fixed by Proclamation. Following the commencement of the Evidence Act 2011 (ACT), it was proclaimed on 9 February 2012 that 1 March 2012 was the day the Commonwealth Evidence Act ceased to generally apply to proceedings in an ACT court. As such, this subsection has ceased to have utility and will be removed in accordance with clearer Commonwealth laws principles.

250. The note under subsection 4(6) will be repealed by item 24 of Part 3 of Schedule 5.

Item 12: Subsections 8(4) to (6)

251. This item will repeal subsections 8(4) to (6).

252. Section 8 provides for certain other laws not to be affected by the Evidence Act 1995. Currently, paragraphs (8)(4) to (6) provide that until a day fixed by Proclamation under subsection 4(6), prescribed provisions of the repealed Evidence Act 1971 (ACT), other Australian Capital Territory (ACT) Acts and Ordinances (including Imperial and State Acts in force in the ACT) and ACT regulations in force when the Act commences for so long thereafter as they are not amended, are to prevail over the Evidence Act.

253. Currently, subsection 4(6) of the Evidence Act 1995 states that the Evidence Act applies to all proceedings in an ACT court, until a day fixed by Proclamation. Following the commencement of the Evidence Act 2011 (ACT), it was proclaimed on 9 February 2012 that 1 March 2012 was the day the Commonwealth Evidence Act ceased to generally apply to proceedings in an ACT court.

254. Since 1 March 2012, subsections 8(4) to (6) have ceased to have any function and will be removed in accordance with clearer Commonwealth laws principles.

Item 13: Section 19

255. This item will repeal section 19.

256. Section 18 of the Evidence Act 1995 provides for the compellability of a spouse, de facto partner, parent or child of a defendant in a criminal proceeding. Currently, section 19 provides that section 18 does not apply in proceedings for certain offences against children and domestic violence offences as provided under Australian Capital Territory (ACT) law.

257. Currently, subsection 4(6) of the Evidence Act states that the Evidence Act applies to all proceedings in an ACT court, until a day fixed by Proclamation. Following the commencement of the Evidence Act 2011 (ACT), it was proclaimed on 9 February 2012 that 1 March 2012 was the day the Commonwealth Evidence Act ceased to generally apply to proceedings in an ACT court.

258. Since 1 March 2012, it has become superfluous to provide an exception to the application of section 18 for certain ACT offences, as the Evidence Act has ceased to generally apply to proceedings in an ACT court. Section 19 is unnecessary and will be removed in accordance with clearer Commonwealth laws principles.

Item 14: Subsection 128(15) (not including the notes)

259. This item will repeal subsection 128(15), except the notes.

260. Section 128 provides a general rule that a court must not require a witness to give particular evidence if the witness objects that the evidence may tend to prove he or she has committed an offence or is liable to a civil penalty, and the Court is satisfied there are reasonable grounds for the objection. However, the Court will give the witness a certificate under section 128 (self-incrimination certificate) if the witness gives self-incriminating evidence. The effect of this certificate is that the evidence in respect of which the certificate was given cannot be used against the person in a court proceeding.

261. Subsection 128(12) provides for the mutual recognition of self-incrimination certificates. Certificates given by a State or Territory court under prescribed State or Territory provisions^[4] have the same effect in a federal court as if the certificates had been given under the Evidence Act 1995.

262. Subsection 128(15) provides that until a day fixed by Proclamation under subsection 4(6) in certain proceedings against Australian Capital Territory (ACT) law, subsection 128(12) applies so that self-incrimination certificates issued by other State or Territory courts would have effect in a proceeding in an ACT court.

263. Currently, subsection 4(6) of the Evidence Act states that the Evidence Act applies to all proceedings in an ACT court, until a day fixed by Proclamation. Following the commencement of the Evidence Act 2011 (ACT), it was proclaimed on 9 February 2012 that 1 March 2012 was the day the Commonwealth Evidence Act ceased to generally apply to proceedings in an ACT court.

264. As the day fixed by Proclamation has passed, this provision has become obsolete and will be removed in accordance with clearer Commonwealth laws principles.

Item 15: Subsection 128A(1) (definition of disclosure order )

265. This item will amend the definition of 'disclosure order' under subsection 128A(1) to remove the reference to 'or an ACT court'.

266. Currently, 'disclosure order' means an order made by a federal court or an Australian Capital Territory (ACT) court in a civil proceeding requiring a person to disclose information, as part of, or in connection with a freezing or search order, but does not include an order made by a court under the Proceeds of Crime Act 2002.

267. Currently, subsection 4(6) of the Evidence Act 1995 states that the Evidence Act applies to all proceedings in an ACT court, until a day fixed by Proclamation. Following the commencement of the Evidence Act 2011 (ACT), it was proclaimed on 9 February 2012 that 1 March 2012 was the day the Commonwealth Evidence Act ceased to generally apply to proceedings in an ACT court.

268. While this reference is obsolete and has no legal effect due to the Proclamation, it may be misleading and will be removed in accordance with clearer Commonwealth laws principles.

Item 16: Section 131B

269. This item will amend section 131B to remove the reference to 'or an ACT court'.

270. Section 131B extends the application of Division 1A of Part 3.10 (journalists' privilege) and section 131A of the Evidence Act 1995 to all proceedings in any other Australian court against a law of the Commonwealth. At present, section 131B provides that this extended application is in addition to their application under section 4 to all proceedings in a federal court or an Australian Capital Territory (ACT) court.

271. Currently, subsection 4(6) of the Evidence Act states that the Evidence Act applies to all proceedings in an ACT court, until a day fixed by Proclamation. Following the commencement of the Evidence Act 2011 (ACT), it was proclaimed on 9 February 2012 that 1 March 2012 was the day the Commonwealth Evidence Act ceased to generally apply to proceedings in an ACT court.

272. The Commonwealth Evidence Act has ceased to apply to proceedings in an ACT court under section 4.

273. This reference to an ACT court is obsolete and has no legal effect due to the Proclamation. It therefore may be misleading and will be removed in accordance with clearer Commonwealth laws principles.

Item 17: Subsection 182(2)

274. This item will amend subsection 182(2) to remove the reference to 'or (until the day fixed by Proclamation under subsection 4(6)) an ACT court'.

275. Section 182 extends the application of certain provisions of the Evidence Act 1995 to proceedings in all Australian courts, in relation to Commonwealth documents. The extended provisions include exceptions relating to the hearsay rule. The hearsay rule is provided for under section 59.

276. Subsection 182(2) provides that the provisions relating to exceptions to the hearsay rule apply in proceedings as if references in those provisions to the 'hearsay rule' are references to 'any rule of law restricting the admissibility or use of hearsay evidence'. However, this does not apply to proceedings in a federal court 'or (until the day fixed by Proclamation under subsection 4(6)) an ACT court'.

277. Currently, subsection 4(6) of the Evidence Act states that the Evidence Act applies to all proceedings in an Australian Capital Territory (ACT) court, until a day fixed by Proclamation. Following the commencement of the Evidence Act 2011 (ACT), it was proclaimed on 9 February 2012 that 1 March 2012 was the day the Commonwealth Evidence Act ceased to generally apply to proceedings in an ACT court.

278. As the day fixed by Proclamation has passed, the reference to an ACT court has become obsolete and has no legal effect. It will be removed in accordance with clearer Commonwealth laws principles.

Items 18 and 19: Subsection 187(1)

279. Item 18 will amend subsection 187(1) to remove the reference to 'or the Australian Capital Territory'.

280. Item 19 will amend subsection 187(1) to remove the reference to 'or an ACT court'.

281. Section 187 abolishes the privilege against self-incrimination for bodies corporate in relation to a Commonwealth or Australian Capital Territory (ACT) law, or in proceedings in a federal court or ACT court.

282. Currently, subsection 4(6) of the Evidence Act 1995 states that the Evidence Act applies to all proceedings in an ACT court, until a day fixed by Proclamation. Following the commencement of the Evidence Act 2011 (ACT), it was proclaimed on 9 February 2012 that 1 March 2012 was the day the Commonwealth Evidence Act ceased to generally apply to proceedings in an ACT court.

283. The effect of this amendment is to reduce the scope of section 187 so that it does not apply to ACT law or in proceedings in an ACT court.

284. As the Commonwealth Evidence Act has ceased to apply to the ACT and the ACT has its own legislative regime dealing with evidence law, it is inappropriate for section 187 to continue to apply in relation to ACT law or in proceedings in an ACT court.

Item 20: Part 1 of the Dictionary (definition of ACT court )

285. This item will repeal the definition of 'ACT court' in the Part of the Dictionary. This definition is no longer required as the items in this Part remove all references to 'ACT court'.

PART 3-DIFFERENCES FROM EVIDENCE ACTS OF OTHER JURISDICTIONS

Evidence Act 1995

Item 21: Chapter 1 (introductory note)

286. This item will omit all words in the introductory note to Chapter 1 of the Evidence Act under the heading 'Related legislation'. This will be substituted with a list of Acts from New South Wales, Victoria, Tasmania, the Northern Territory and the Australian Capital Territory that are in most respects uniform with the Commonwealth Evidence Act (related legislation). A note on the location of a table setting out the differences between the related legislation and the Evidence Act will also be inserted.

287. The introductory note currently only refers to the Evidence Act 1995 (NSW) as being in most respects uniform to the Commonwealth Evidence Act. The note also states that where there are differences between the two Acts, these are identified in annotations to the text (except for minor drafting variations which are required because one Act is a Commonwealth Act and one Act is a New South Wales Act).

288. The current approach of inserting these annotations adjacent to each provision has been seen to be useful. In New South Wales, the Commonwealth Evidence Act and New South Wales Evidence Act function in parallel in the same geographical location-one or the other would be applicable depending on whether a proceeding was in a New South Wales court or a federal court.

289. However, these annotations are out of date as only differences between the New South Wales Evidence Act and the Commonwealth Evidence Act are included, while differences between the Commonwealth Evidence Act and other related legislation are not.

290. This approach does not promote accuracy in legislation. It is difficult to keep these annotations up to date as legislative amendments to the Commonwealth Evidence Act will be required when changes are made in other jurisdictions.

291. As such, the amendments in this Part will remove all such annotations in the Commonwealth Evidence Act.

292. The information conveyed by these annotations will continue to be available to users in the form of a table setting out the differences between the Commonwealth Evidence Act and related legislation. This table is included as an attachment to this Explanatory Memorandum (see Attachment B), which provides a point in time reference. Updates to the table will also be placed on the Attorney-General's Department website at http://www.ag.gov.au. The table will have no substantive effect but will assist readers where differences in related evidence legislation exist.

293. This approach will address the difficulties with the current approach, while continuing to provide for the ease of use and accessibility for users of legislation.

Items 22 to 60 except for items 25, 30, 35, 42, 44, 46, 50, 53, 54 and 56:

294. These items repeal annotations in the text of the Evidence Act 1995 (Cth) which identify where there are differences between the Commonwealth Evidence Act and the Evidence Act 1995 (NSW).

295. These amendments are consistent with the new approach to setting out the differences between the Commonwealth Evidence Act and State and Territory Evidence Acts (see note on item 21).

Items 25, 30, 35, 42, 44, 46, 50, 54:

296. These items renumber the specified legislative notes, as a consequence of the repeal of other legislative notes by Part 3 of Schedule 5.

Items 53 and 56: Sections 194 and 196

297. These items repeal sections 194 and 196. These sections are merely placeholders which correspond to provisions in the Evidence Act 1995 (NSW), as identified by the annotations on these sections, and do not contain any text.

298. These amendments are consistent with the new approach to setting out the differences between the Commonwealth Evidence Act and State and Territory Evidence Acts (see note on item 21).

PART 4-OTHER AMENDMENTS

Evidence Act 1995

Item 60: Section 31 (heading)

299. This item will repeal the heading to section 31 and replace it with 'Witnesses who cannot hear or speak adequately.'

300. Currently, the title to section 31 is 'Deaf and mute witnesses'. However, the body of the section refers to 'witnesses who cannot hear adequately' and 'witnesses who cannot speak adequately'.

301. The amendment will make the heading consistent with the terminology used in the body of the section, but will have no substantive effect on the application of this section.

302. In addition, the new title will be more inclusive. The reference to 'witnesses who cannot hear or speak adequately' acknowledges the broad spectrum of communication disabilities.

Item 61: Paragraph 1(1)(d) of Part 2 of the Dictionary

303. This item inserts 'or body' after the words 'an activity engaged in or carried on by a person' in paragraph 1(1)(d) of Part 2 of the Dictionary. This amendment will correct a drafting oversight.

304. This amendment will make the provision consistent with the Model Uniform Evidence Bill, endorsed by the then Standing Committee of Attorneys-General, which includes 'or body' to avoid any doubt that the provision applies to corporate persons.

Item 62: Clause 4 of Part 2 of the Dictionary

305. Item 63 will expand the scope of persons taken not to be available to give evidence about a fact (unavailable persons) in clause 4 of Part 2 of the Dictionary to include persons who are mentally or physically unable to give evidence, and where it is not reasonably practicable to overcome that inability.

306. The current definition provides that a person is not taken to be available to give evidence about a fact if:

•

they are dead

•

they are not competent to give evidence

•

it would be unlawful for them to give evidence

•

a provision in the Evidence Act 1995 prohibits the evidence from being given, or

•

the person cannot be found or compelled to give evidence.

307. This amendment implements a 2005 recommendation of the Australian, New South Wales and Victorian Law Reform Commissions.^[5] The amendment was recommended to ensure that relevant evidence was not excluded under the hearsay rule due to a witness being unfit to give evidence (sections 63 and 65 of the Evidence Act provide exceptions to the hearsay rule where a person, who has made a previous representation, is not available to give evidence about an asserted fact).

308. Consistent with the aim of the recommendation, it is not intended that this amendment should lower the standard of unavailability generally. For example, it is not intended that any person should be considered unavailable to give evidence simply by producing a medical certificate. A real mental or physical inability to testify must be shown. The use of other measures available to certain witnesses (such as the use of pre-recorded evidence or CCTV for vulnerable witnesses) will restrict the number of people who will fit within the category of a person who is unavailable to give evidence because of a mental or physical inability.

309. The amendment will ensure consistency with the Model Uniform Evidence Bill as amended by the then Standing Committee of Attorneys-General in May 2010.

PART 5-APPLICATION OF AMENDMENTS

Evidence Act 1995

Item 63: Application of amendments

310. This item sets out the application of the amendments in Schedule 5.

311. Subitem (1) provides that for proceedings which began before the commencement of Schedule 5, the amendments do not apply.

312. Subitem (2) provides that the Evidence Act 1995, as in force immediately before the commencement of Schedule 5, continues to apply in relation to proceedings which began before that commencement.

313. This means the amendments made by Schedule 5 only apply to proceedings that commence after the commencement of this Schedule.

SCHEDULE 6-PROTECTION OF MOVABLE CULTURAL HERITAGE

GENERAL OUTLINE

314. Schedule 6 will make amendments to the Protection of Movable Cultural Heritage Act 1986.

Protection of Movable Cultural Heritage Act 1986

Item 1: Subsection 17(5)

315. Item 1 will repeal subsection 17(5).

316. This will allow the continued functioning of the National Cultural Heritage Committee when membership falls below the maximum number.

SCHEDULE 7-NATIONAL LIBRARY MATERIAL

GENERAL OUTLINE

317. Schedule 7 will make amendments to the Copyright Act 1968.

318. The Copyright Act creates the framework for the subsistence of copyright, and the protection and use of copyright material.

319. Section 201 of the Copyright Act requires publishers of certain literary, dramatic, musical or artistic works to deliver copies of their works to the National Library of Australia (the National Library). This is known as the legal deposit scheme.

320. The purpose of the legal deposit scheme is to preserve Australia's published cultural heritage, consistent with the National Library's mandate to build a comprehensive collection of library material relating to Australia and the Australian people.

321. The current legal deposit scheme only applies to material that is published in a print format. The amendments will extend the legal deposit scheme to also encompass works published in an electronic format.

322. The scheme will capture two different types of material, with different delivery obligations attached. These categories will be as follows:

(a)

Material published in Australia that is not available online. For ease of reference, throughout Schedule 7 this material is referred to as 'offline material'. There will be two subcategories of this material:

(i)

Hardcopy material, including material that is captured by the current legal deposit scheme, for example a book, but the obsolete format of letter-press will no longer be included.

(ii)

Offline electronic material, for example a CD of maps.

Publishers of offline electronic material will be required to deliver a physical copy of the material within one month of publication.

(b)

Published material that is available online. For ease of reference, throughout Schedule 7 this material is referred to as 'online material'.

Publishers of online material will be required to deliver a copy of their works, in electronic form, only if they receive a request from the National Library, within one month of that request.

The request-driven basis of the scheme for online electronic material will ensure that the large volume of online electronic material that is not required for the National Library's collection will not be captured automatically. It will also ensure clarity for publishers regarding what is required to be delivered, given the potential for uncertainty resulting from the large scale and dynamic nature of online publishing.

323. The scheme will only apply to published material in which copyright subsists under the Copyright Act. Publication is defined in section 29 of the Act and generally requires an element of supply to the public.

324. The amendments will require that electronic material must be accessible by the National Library (that is, free from technological protection measures and accompanied by any software required) and hardcopy works must be of an appropriate quality to be handled (that is, a 'best copy').

325. The amendments will also update the penalty and insert an infringement notice scheme to deal with non-compliance. The non-compliance penalty and the infringement notice scheme are consistent with the Attorney-General's Department Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.

326. The administrative burden on the National Library would be reduced by removing the requirement to provide a receipt after a work is delivered.

Copyright Act 1968

Item 1: Subsection 10(1)

327. Item 1 will insert definitions for four new terms in subsection 10(1). 'Available online', in relation to National Library of Australia (the National Library) material, has the meaning given in section 195CF (to be inserted by item 4). 'Delivery period' has the meaning given in subsection 195CD(2) (to be inserted by item 4). 'National Library material' has the meaning given in section 195CE (to be inserted by item 4). 'National Library Minister' means the Minister administering the National Library Act 1960. This will clarify that the National Library Minister will not necessarily be the Minister administering the Copyright Act.

Item 2: Subsection 10(1) (definition of the National Librarian )

328. Item 2 will repeal the definition of the National Librarian.

Item 3: Before section 195A

329. Item 3 will insert the heading 'Division 1 - Interpretation'.

Item 4: Before section 195B

330. Item 4 will insert the heading 'Division 2 - Review'.

Item 5: After section 195B

331. Item 5 will insert a new division - 'Division 3 - National Library of Australia'.

Section 195CA

332. Item 5 will insert new section 195CA which contains a simplified outline of Division 3.

Section 195CB

333. Item 5 will insert a new section 195CB.

334. Section 195CB will create two new offences for failing to deliver National Library material in accordance with requirements set out in section 195CD.

335. Subsection 195CB(1) will create an offence for failing to deliver published material, whether in hardcopy or electronic form, that is not available online. This offence will apply to material that is published in Australia.

336. Subsection 195CB(2) will create an offence for failing to deliver published electronic material that is available online. The publisher will not be required to deliver the material unless the National Library requests that material under section 195CC (to be inserted by this item). There will be no specific requirement that online material be published in Australia. However, the National Library will request material in accordance with its mandate under the National Library Act 1960 to maintain a comprehensive collection of library material relating to Australia and the Australian people.

337. Paragraph 195CB(1)(b) will ensure that where a person publishes material offline, and that same material is published online and is requested by the National Library, the publisher will only be obliged to deliver the online material. The effect will be that once a request is made, the publisher need only comply with subsection 195CB(2) and not subsection 195CB(1) (both of which are to be inserted by this item). This rule will only apply where the request for the online material is made within one month of publishing the material offline. The reason for this time limit is that the delivery period for offline material will expire one month after publication, and if a request for the online material is made within this timeframe, the publisher will be aware before expiry of that period that the publisher does not need to deliver the offline material. However, if the National Library requests the online material after this time limit has expired, the publisher will be obliged to comply with this request, regardless of whether the publisher has already complied with the obligation in respect of the same offline material. In practice, the National Library will only request the online material in addition to the offline material that has already been delivered if this was required for the purposes of its collection mandate.

338. The penalty for these offences will be 10 penalty units. This penalty is considered appropriate in comparison with similar but more minor offences in the Act, such as those provided in sections 203A through to 203H. Non-compliance costs will also need to be higher than compliance costs, so that the penalty provides a sufficient deterrent for non-compliance.

339. Both offences will be offences of strict liability. This is appropriate since the offence will impose a low penalty, is intended to operate in conjunction with an infringement notice scheme to be set out in the Copyright Regulations 1969 and cases of infringement can be identified easily.

340. Subsection 195CB(4) will provide that subsection 4K(2) of the Crimes Act 1914 (about continuing offences) will not apply in relation to an offence against subsections 195CB(1) or 195CB(2) (both of which are to be inserted by this item). This means that each instance of failure to deliver particular material within the 'delivery period' provided in section 195CD(2) (to be inserted by this item) will be regarded as a single offence, rather than a continuing offence in respect of each day of non-compliance after the delivery period expires. However, this will not mean that failure to deliver multiple works will not result in an offence in respect of each work.

Section 195CC

341. Item 5 inserts new section 195CC.

342. Section 195CC will provide that the Director-General of the National Library may request a publisher to deliver to the National Library a copy of National Library material that is available online, in accordance with section 195CD (to be inserted by this item). The Director-General will be able to delegate this power to a senior executive service (SES) employee of the National Library in accordance with section 195CI.

343. Paragraph 195CC(1)(c) will reflect the intention that requests will be made at the discretion of the Director-General, in accordance with the collection mandate of the National Library under the National Library Act.

344. Paragraph 195CC(2) will clarify that the request may be made any time after the material is published.

345. There will be a requirement to make the request in writing. Subsection 195CC(3) will ensure that the National Library has the flexibility to request and collect material in the most efficient way, such as through automated web harvesting or other technical processes. Subsection 195CC(3) will provide one example of how the National Library may obtain implied consent to receive electronic communications as required by subparagraph 9(2)(d) and the definition of 'consent' contained in section 5 of the Electronic Transactions Act 1999. The example will be illustrative, non-exhaustive and not intended to limit the processes used by the National Library in any way.

Section 195CD

346. Item 5 will insert new section 195CD.

347. Subsection 195CD(1) will set out requirements for delivery of National Library material to the National Library. A publisher will need to deliver the material within the delivery period set out in subsection 195CD(2).

348. Subsection 195CD(1) will also provide requirements for the quality and accessibility of the copy of the material to be delivered.

349. Paragraph 195CD(1)(a) will provide that the copy to be delivered must be a copy of the whole material (including any illustrations, drawings, engravings, photographs and audio-visual elements). This will ensure that the copy is of the same quality as, and contains all the features that are attached to, the published material.

350. Paragraph 195CD(1)(b) will apply to online electronic material that is requested and will ensure that it must be provided in the same online form and not, for example, as a hardcopy printout of that material.

351. Paragraph 195CD(1)(c) will apply to a copy in an electronic form (whether online or offline) and will ensure that the National Library is able to access the copy in order to preserve it.

352. Paragraph 195CD(1)(d) will apply to a copy in a hardcopy form and ensure that it must be a 'best copy' in the sense that it is of the same quality as its published form.

353. Paragraph 195CD(1)(e) will require the publisher to deliver the material at the publisher's own expense. However, in cases where the material will be requested in accordance with section 195CC (to be inserted by this item), the request may state that delivery will not be at the publisher's expense.

354. Paragraph 195CD(1)(f) will refer to any additional requirements that may be prescribed by the National Library Minister regarding the quality, accessibility or other properties of the copy to be delivered. This will ensure that the requirements in this subsection are able to adapt to future technologies or formats.

355. Subsection 195CD(2) will provide a delivery period within which the publisher must deliver material to the National Library. For offline material, the delivery period will be one month from the date of publication of that material. For online material, the delivery period will be one month from the date of request by the National Library.

Section 195CE

356. Item 5 will insert new section 195CE.

357. Section 195CE will set out the scope of material that needs to be delivered by providing a definition of National Library material. In order to be captured as National Library material, the material must be a literary, dramatic, musical or artistic work, or an edition of such a work. This material may be in electronic (whether online or offline) or hardcopy form. Paragraphs 195CE(a) through to 195CE(e) will provide further elements that must be present for the material to qualify as National Library material.

358. Subparagraph 195CE(a)(i) will provide an exclusive list of formats that are to be captured. These will include electronic and hardcopy formats that are currently contemplated. Hardcopy formats that are currently captured in section 201 are included in this list. However, sheet of letter-press is not included as it is an obsolete format. Subparagraph 195CE(a)(ii) will provide a power for the National Library Minister to prescribe additional formats by legislative instrument, to ensure that any new formats that develop in future may be captured if appropriate.

359. Paragraph 195CE(b) will provide a further element that copyright must subsist in the material under the Act. At present, copyright subsists in a published work where conditions in subsection 32(2) of the Act are met. The Copyright (International Protection) Regulations 1969 extend the subsistence of copyright to certain foreign works.

360. Paragraph 195CE(c) will exclude material that is primarily audio-visual. This is because such material will fall within the collection mandate of the National Film and Sound Archive of Australia set out in section 6 of the National Film and Sound Archive Act 2008 and would be more appropriately dealt with under any future legal deposit scheme that applies to that institution.

361. Paragraph 195CE(d) will apply to editions and provides a threshold of difference from the original work or previous edition before that material will qualify as an edition. This will ensure that publishers are not required to deliver mere reprints of material that they have previously delivered.

362. Paragraph 195CE(e) will provide a power for the National Library Minister to prescribe material to be excluded from the definition of National Library material. This power may be exercised, for example, if a format that is currently captured becomes obsolete, or proves in practice to be too costly or technically difficult to deliver or preserve.

Section 195CF

363. Item 5 will insert new section 195CF.

364. This section will define 'available online' to mean communicated on the internet. The definition could also be extended to mean communication via some other electronic form that is prescribed by the National Library Minister, in the event that some new platform is developed which is analogous to the internet.

Section 195CG

365. Item 5 will insert new section 195CG.

366. Subsection 195CG(1) will provide the National Library Minister with the power to prescribe an infringement notice scheme for failure to deliver material in accordance with subsection 195CB(1) or subsection 195CB(2) (both of which will be inserted by this item). This will enable offences to be processed more efficiently, and it is appropriate given that this will be a minor offence.

367. Subsection 195CG(2) will provide that the penalty imposed under an infringement notice must equal one-fifth of the maximum penalty that is set out in subsection 195CB(1) or subsection 195CB(2) (both of which will be inserted by this item). That is, the penalty under the infringement notice scheme will equal one-fifth of ten penalty units (currently equal to $340.00).

Section 195CH

368. Item 5 will insert new section 195CH.

369. Section 195CH will reflect the intention that the amendments do not impact on the scope of any State or Territory legal deposit provisions. A publisher will still be obliged to deliver material under this scheme as well as other schemes.

Section 195CI

370. Item 5 will insert new section 195CI.

371. Section 195CI will enable the Director-General of the National Library to delegate any of his or her powers under this Division, including the power to request material to be delivered in accordance with section 195CC (to be inserted by this item) and to extend the delivery period provided in section 195CD (to be inserted by this item).

Section 195CJ

372. Item 5 will insert new section 195CJ.

373. Section 195CJ will provide a power for the National Library Minister to prescribe matters that are required or permitted to be prescribed by this Division. Matters that the Minister could prescribe include additional requirements for the copy of material to be delivered to the National Library (paragraph 195CD(1)(f) to be inserted by this item), additional formats that would be captured by the definition of National Library material (subparagraph 195CE(a)(ii) to be inserted by this item), works or editions to be excluded from the definition of National Library material (paragraph 195CE(e) to be inserted by this item) and an infringement notice scheme (subsection 195CG(1) to be inserted by this item).

411. Item 5 will also insert the heading 'Division 4 - Other matters'.

Item 6: Sections 201 and 241

374. Item 6 will repeal sections 201 and 241. The current legal deposit scheme contained in section 201 will be integrated with the new scheme contained in item 4. Section 241 deals with the application of the existing scheme which will not be required if section 201 is repealed.

Item 7: Application of amendments

375. Item 7 will clarify that the amendments apply prospectively, to any material that is published on or after commencement.

ATTACHMENT A - EXTENDING THE LEGAL DEPOSIT SCHEME TO DIGITAL MATERIAL

REGULATION IMPACT STATEMENT
2014

1. BACKGROUND

1.1 What is legal deposit?

Legal deposit is a requirement under section 201 of the Copyright Act 1968 that publishers deposit a copy of library material to the National Library of Australia (NLA). This requirement applies to material that is in print form, published in Australia, and in which copyright subsists.

'Library material' is defined as:

a book, periodical, newspaper, pamphlet, sheet of letter-press, sheet of music, map, plan, chart or table, being a literary, dramatic, musical or artistic work or an edition of such a work, but does not include a second or later edition of any material unless that edition contains additions or alterations in the letter-press or in the illustrations.

1.2 Historical origins of legal deposit

Legal deposit has a long history in common law and has been a part of Australia's copyright law since its colonial origins. Its genealogy may be traced back to the genesis of statutory copyright, the Statute of Anne in 1709, and even further to deposit licensing arrangements established in 1610 by the University of Oxford and the Stationer's Company, a London-based guild of printers, booksellers and publishers.

A legal deposit requirement was included at the inception of Commonwealth copyright legislation. The Copyright Act 1905 provided that applicants for copyright registration must deposit two copies of books and one copy of works of art with the Registrar of copyrights. The Registrar was then to forward one copy of the book to the Librarian of the Parliament. The Registrar could refuse an application to register a copyright if these conditions were not met.

These legal deposit arrangements were maintained and refined when Australia enacted the Copyright Act 1912, which adopted the corresponding United Kingdom Copyright Act 1911 (Imp). Section 40 of the Copyright Act 1912 provided that the publisher of every book:

which is first published in the Commonwealth, and in which copyright subsists under this Act, shall within one month after the publication deliver, at his own expense, a copy of the book to the Librarian of the Parliament.

The Copyright Act 1912 both expanded and limited the scope of the scheme. The previous requirement for works of art was removed, and 'book' was expansively defined as including:

every part or division of a book, pamphlet, sheet of letterpress, map, plan, chart or table, but shall not include any second or subsequent edition of a book unless that edition contains additions or alterations either in the letterpress or in the maps, prints, or other engravings belonging thereto or any book published by any State or any authority of a State.

These Commonwealth deposit obligations did not derogate from any existing schemes set up for the delivery of material to any State libraries.

Since that time, the scope of the scheme has been expanded to include periodicals and newspapers.

1.3 Rationale of legal deposit

Following the enactment of the United Kingdom Copyright Act 1956, the then Government appointed the Copyright Law Review Committee (the Spicer Committee) to prepare for a new Australian copyright Act. The Committee noted that the main purpose of the legal deposit provision should be 'to build up a complete collection of Australian literature' (Report of the Spicer Committee, 1959, at paragraph 468).

The Copyright Law Review Committee (CLRC) was re-established in 1983 by the Attorney-General as a specialist advisory body to report to the Government on specific copyright law issues referred to it for consideration.

In 1997, the CLRC refined this purpose as:

... collection and preservation of a country's cultural heritage as represented by its published works. A vital part of any nation's cultural heritage exists in the publications which document accumulated knowledge, activities and achievements of its citizens in all fields of human endeavour.

In 1999, the CLRC repeated this view, noting 'the committee regards the primary purpose of the legal deposit provisions as ensuring the preservation of aspects of Australia's cultural heritage.' (CLRC Report on Simplification of the Copyright Act 1968, Part 2, 1999, at paragraph 7.144)

2. WHAT IS THE POLICY PROBLEM YOU ARE TRYING TO SOLVE?

2.1 The scope of the problem

There is no existing regulatory scheme or practical measure which effectively preserves Australia's digital published heritage. The growing proliferation of digital media has generated a large body of published material in electronic form. Soft-copy book publication, in the form of e-books and online delivery, has largely been enabled by the proliferation of internet access (Economic Analysis of Literary Publishing, Australia Council for the Arts, 2008). The percentage of Australian households with access to the internet at home has continued to increase, from 64% in 2006-07 to 79% in 2010-11 (Household Use of Information Technology, Australia, 2010-11, Australian Bureau of Statistics). Online publishing is conducive to the publication of certain types of material that are not favoured by conventional publishing. The Australia Council for the Arts research noted that online publication attracts smaller publishers and the publication of poetry and niche material, due to lower costs.

The growing trend towards digital publishing and the range of material that it produces confirms the importance of establishing an effective scheme to preserve digital material.

2.2 Limitations of section 201

The current scheme in section 201 provides for the deposit of print-based, Australian-published material to the NLA. This scheme does not cover digital material.

2.3 Limitations of State and Territory legal deposit schemes

All States and the Northern Territory have legal deposit schemes which require deposit to their respective State and Territory libraries as well as the NLA.

There is no consistent approach across each of the State and Territory schemes. Each scheme has a different definition of material that is required to be deposited. The majority of these schemes currently do not encompass digital material.

As such, State and Territory legal deposit schemes only assist in the building of a national digital collection to a limited extent. State and Territory schemes do not give the NLA discretion in the material that it can collect through their schemes, which is essential in allowing the NLA to fulfil its role as the cultural institution responsible for maintaining a comprehensive national collection of library material.

2.4 Limitations of voluntary methods of collecting digital material

In the absence of a legal deposit provision for electronic materials, the NLA has attempted to acquire digital materials under a voluntary regime for some years. It has collected a small fraction of the digital output in that time, largely due to the requirement to seek permission from the publisher before acquiring a copy - that is, seeking a licence under the Copyright Act.

2.4.1 Freely available material published on the internet

With respect to the delivery of freely available material published on the internet, in the 12 months to the end of March 2013, NLA web archiving staff undertaking selective, permissions based, web archiving procedures for the PANDORA Archive, the NLA's web archive which was established in 1996, collected around 28 million web pages amounting to 1.28 terabytes (TBs) of data. A trial bulk harvest of the .au web domain run over approximately five weeks in April 2012 collected around 1 billion unique pages amounting to around 42 TBs of data. This means that current processes collect less than 3% of the freely available web materials that could be collected through bulk harvesting processes.

This lack of success in collecting digital content under a voluntary regime is caused by several factors.

1. Administrative and procedural overheads

The requirement for individual permissions to be obtained from each publisher requires a number of operational procedures for the NLA:

•

negotiating with publishers one by one to seek their explicit permission;

•

careful scoping of harvesting so that only that material for which explicit permission has been received is collected, and

•

post-harvest checking to ensure that the scoped content has been collected.

Thus the permissions based approach limits the method of collecting and does not allow for automated bulk harvesting on a scale to match the extent of the content being published online. It imposes considerable administrative and procedural overheads on the NLA.

2. No efficiencies of scale

The NLA has no capacity to increase the resources allocated to its existing web collecting program, and at the same time there is limited scope within a voluntary regime to effect efficiencies of scale when collecting websites in a piecemeal fashion. Automated web harvesting processes which allow for collection on a large scale are not currently possible given the requirement to seek permission from each rights holder.

3. Impracticality of dealing with multiple rights holders

Digitally created works are frequently complex with respect to copyright. Some sites have multiple rights owners, as content used may have been created by third parties or contributors. Seeking to obtain permissions from all the rights holders represented in a website is impractical. In certain cases it may not even be possible to identify rights holders.

4. No requirement for rights holders to respond

Procedures that require the negotiation of specific individual permissions with publishers further limit the NLA's function to collect and preserve published materials because there is no requirement for publishers to even respond to permission requests. They may also refuse to agree to the collecting of material. In the 2012 calendar year 24% of permission requests received no response from publishers and 1.5% of the requests were refused by publishers. Therefore there is considerable uncertainty of a successful outcome even after administrative effort and resource has been expended.

5. Lack of timeliness

The need to be able to respond and collect web materials in a timely manner, since the content may have significance at a particular point in time or it may disappear or change at any moment, means that the NLA requires the ability to apply efficient, timely collecting methods to this content.

2.4.2 Material published on the web requiring mediation by the publisher to provide access

The NLA has had virtually no success in negotiating voluntary deposit of materials requiring mediation by the publisher. These materials include publications which are behind a pay wall, or which are subject to some other means of restricting access which prevents delivery to the NLA by automated web harvesting processes. This material is the most difficult to obtain by voluntary agreement with the publisher and only a negligible amount is being collected by the Library.

2.4.3 Offline material

The NLA has negotiated agreement with publishers for the voluntary deposit of approximately 700 offline publications on physical data carriers. Without a regulatory regime, collecting coverage has been patchy and new material only produced in the digital form is consistently not being captured. Although this format comprises a small part of Australian publishing output it is highly vulnerable to loss without timely technical intervention. It is also likely that publication of e-books will expand further in future as internet access and reading devices continues to improve, and may therefore represent a higher proportion of Australian publishing output.

Information on physical format media such as CDs and DVDs will quickly become inaccessible when the media become obsolete, malfunctions or the file formats can no longer be opened in modern-day operating systems (as is now the case with media such as 5 1/4 inch floppy disks).

2.5 Limitations of purchasing material that is not freely available

Purchasing all future commercial e-publications would place an unsustainable burden on the NLA's resources, comprising not only the cost of publications but the staff resources required to manage procurement.

The NLA reports on the quantity of published Australian print materials received through the legal deposit scheme in its annual financial statements. It also reports an average value for accounting purposes. In 2011-12 the figure reported for the combined value of the year's intake of new print books, serial publication issues, sheet music and printed maps was $1.740m.

The NLA has recorded a trend decline of between 10% and 15% in the number of print books and serial issues received. It is likely that this decrease is being matched with a corresponding increase in electronic publishing. Although Australia's digital publishing output would not equal this value in the short term, it is likely that the cost of purchasing e-titles will grow to this level in the medium to long term.

3. WHY IS GOVERNMENT ACTION NEEDED?

The objective of government action is to enhance the preservation of Australia's documented cultural heritage, forming a national record of Australia's intellectual and creative endeavours, history and way of life.

One of the functions of the NLA under the National Library Act 1960 is to 'maintain and develop a national collection of library material, including a comprehensive collection of library material relating to Australia and the Australian people'. Legal deposit provides a reliable mechanism for the NLA to collect material from Australian publishers in both hardcopy and electronic formats

Therefore, the Australian Government is aiming to modernise the scheme for legal deposit to the NLA so that the scheme encompasses a comprehensive range of published material, including material only produced in digital form.

One of the primary motivations for extending legal deposit to electronic materials is so that collecting can be more efficiently and comprehensively accomplished, thus retaining the cultural significance of all content by collecting as much of the associated (linked) context as is feasible and practical given resource and technical constraints.

The relevance of cultural significance is explained at Appendix A.

4. WHAT POLICY OPTIONS ARE YOU CONSIDERING?

This RIS focuses on options for improving the capacity of the NLA to acquire and maintain a comprehensive, representative national collection.

The following four policy options were considered:

1.

take no action

2.

industry-government agreement

3.

amend the Copyright Act: post-consultation model.

4.

amend the Copyright Act: pre-consultation model

4.1 Option 1: Take no action

If no action is taken, the NLA would continue to rely on existing means of procuring material, including the print legal deposit scheme, State and Territory legal deposit schemes, voluntary deposit and purchasing.

4.2 Option 2: Industry-Government agreement

An option is for the NLA, together with the Attorney-General's Department (AGD) and Ministry for the Arts (MFTA), to facilitate discussions with the Australian Publishers Association (APA) to voluntarily reach an agreement on arrangements for deposit of digital material.

4.3 Option 3: Amend the Copyright Act: post-consultation model

This option would involve inserting new provisions into the Copyright Act providing an obligation to deliver electronic library material. The existing scheme in s201 would be incorporated into a consolidated scheme for deposit of both print and electronic library material, with some minor amendments for consistency. Some aspects of the scheme would be set out in the Copyright Regulations 1969. In addition, it is intended that the NLA will develop guidelines in consultation with affected parties, including publishers. These guidelines will have no legislative force. Their purpose will be to provide information to publishers on how to comply with the scheme in practice, and the treatment of material collected through the extended legal deposit scheme by the NLA, including measures that will be taken to ensure security and copyright protection.

The new provisions would provide a broad and technologically neutral definition of electronic library material. Electronic library material would encompass published material, being a literary, dramatic, musical or artistic work in electronic format, in which copyright subsists, excluding work that is primarily audio-visual, or prescribed in the Regulations. It is intended that the definition would not capture material that is copyright infringing, confidential, shared by means of a private network, comprised partly of personal data and only made available to a restricted group of persons.

Electronic library material can be published either online or in physical format ('offline').

Distinct delivery obligations would apply depending on the mode of publication, in recognition of technological differences and the large quantity of electronic library material that is published online. Electronic library material published online would be delivered only at the request of the NLA, however the NLA intends to publish guidelines that allow publishers to contact the NLA to negotiate electronic deposit. The NLA intends to request electronic material by an automated web harvesting processes to the fullest extent possible. For unrestricted online publications, the NLA would use a web crawl robot to make a request for selected content from a web server using the URL of the selected content, and in response the web server would deliver the selected content to the crawl robot and so to the NLA archive.

Publishers would automatically be required to deliver any offline electronic library material to the NLA, within one month of publication. The NLA would work with publishers to develop the most cost-effective way to deliver offline electronic library material. It is expected that in future the majority of publishers will take advantage of the more flexible and less expensive electronic deposit of library material, including via email. This is reflected in our cost calculations. Physical delivery, as for print library material, would satisfy this requirement. Material delivered would need to be a 'best copy' in any format in which the work is published.

Publishers would be required to provide material that is technologically accessible by the NLA. Where a publisher delivers required electronic library material that is protected by a technological protection measure (TPM), the publisher must deliver a second copy of that material which is not protected by a TPM.

Non-compliance would be subject to a strict liability penalty. The penalty provision in section 201 would be revised to be consistent with the new scheme and best practice drafting. At present, the penalty for non-compliance is $100. In future, the NLA will administer an infringement notice scheme and provide for a penalty of up to 10 penalty units.

Where a work is published in different formats and therefore captured by more than one legal deposit provision in the Copyright Act, including the print legal deposit obligation in section 201 and the proposed obligations to deliver online electronic library material and offline electronic library material, the publisher will not be required to deliver the same work under more than one provision.

Minor amendments to the scheme in section 201 would include the removal of the requirement for the NLA to provide a receipt for a deposited copy, and revision of the penalty provision.

4.4 Option 4: Amend the Copyright Act: pre-consultation model

The above option was developed after extensive consultation, detailed in section 6 below. Option 3 was a significantly revised version of the previous draft model, which was outlined in a consultation paper released on 7 March 2012. Option 3 reflects changes that were made in order to address concerns raised in the consultation process.

The previous model proposed amendments to the Copyright Act to create an extended legal deposit scheme which would:

•

retain the existing definition of 'library material' and adapt it to the digital environment

•

require publishers to remove technological protection measures before deposit

•

require publishers to bear administration and compliance costs

•

allow public access to material through the existing copyright framework for libraries and archives, and

•

allow the NLA to use deposited material in accordance with existing copyright exceptions.

This pre-consultation model proposed mandatory delivery of offline electronic library material and mandatory delivery of online electronic library material on demand.

The key differences between this earlier model (pre-consultation) and the proposed scheme in Option 3, detailed above are:

•

new technology-neutral and format-neutral definitions for online and offline electronic library material

•

a requirement that a work that is delivered pursuant to the extended legal deposit obligation must be a 'best copy' of the work in any format in which the work is published

•

a requirement that any work that is deposited with a TPM be accompanied by a TPM-free version, to allow the TPM-protected copy to be used for public access purposes and the TPM-free copy to be stored securely by the NLA and used only for preservation purposes

•

an exemption from liability in contract or copyright for publishers delivering material in accordance with the extended legal deposit obligation; and

•

specific exclusions and an exemption from delivering the same work under more than one legal deposit provision.

5. WHAT IS THE LIKELY NET BENEFIT OF EACH OPTION?

This section will consider the benefits and limitations of the policy options and highlight a net benefit analysis.

5.1 Option 1: Take no action

The NLA would continue to administer the scheme as it is. Print publishers are required to continue submitting their hardcopy works by post. Electronic only publishers would not have to submit their material to the library, which would save them money. Dual publishers will not have the option to submit their works electronically. There is no expected change for consumers, except they will not be able to access Australia's digital published history at the NLA.

Net benefit analysis

Existing regulatory and voluntary schemes do not effectively enable collection of a comprehensive range of digital material and it would not be practicable for the NLA to rely on purchasing items that are not freely available, given the large volume of digital material in existence and the constraints of the NLA's current budget. If its budget were to be adjusted to allow for more items to be purchased, this would shift the burden of costs to the Australian Government. This would be inconsistent with the current legal deposit scheme which requires publishers to bear compliance costs. Whilst there are modest costs for depositors under the current, print-based legal deposit arrangements, the depositors do get an incidental benefit in their works being preserved for free and included in the national collection.

5.2 Option 2: Industry-government agreement Who would be affected

1. Government

The NLA administers the current legal deposit scheme and under this option it would administer the terms of an agreement. The NLA's function of collecting and maintaining library material would be expanded to encompass a substantially larger and more diverse body of digital material.

AGD and MFTA would share the responsibility of facilitating discussions with publishers, together with the NLA.

2. Business

Publishers who are members of the APA would be required to comply with the terms of the agreement. Proprietors of software embedded in works would also be affected.

3. Consumers

Affected consumers would be the users of the NLA. As the NLA is a public access institution this means that this category includes the general public.

Benefits

1. Government

This option would have the potential to lead to an agreed scheme which facilitates deposit of digital material without imposing an unacceptable compliance burden on publishers.

To the extent that the NLA wishes to collect material from members of the APA, it would be able to do so by relying on the agreement without the administrative burden of seeking individual permissions from those members. If an industry agreement with the APA was reached, it would have the effect of being broadly equivalent to the current library material that is captured under the existing scheme. This agreement would not cover the extensive range of digital publishers who are not members of the APA.

Therefore, the NLA would only be able to fulfil its mandate under the National Library Act marginally rather than being able to build a comprehensive collection to a greater extent than it is able to do at present.

2. Business

Publishers would have the opportunity to negotiate an agreement which does not impose an unacceptable compliance burden on them.

3. Consumers

A more comprehensive record of mainstream Australian publishing would be preserved and made available for use into the future, compared with the present situation in which only print material is collected.

Costs

1. Government

AGD, MFTA and the NLA would need to allocate significant staff resources to participate in negotiations for the agreement. If the agreement were to have a fixed term, it is possible that further negotiations would need to be conducted at the end of this term. If an industry agreement with the APA was reached, it would have the effect of being broadly equivalent to the current library material that is captured under the existing scheme. While this would address moves by traditional publishers towards substituting online publishing in place of print, it would not capture the new online micropublishers. As a result the scheme would not meet the objective of comprehensiveness.

2. Business

Publishers would need to participate in negotiations either directly or through representation by a peak body and would need to comply with the terms of the agreement. Costs of fulfilling obligations under the agreement would depend on the terms of the agreement. These could include, for example, the costs of delivering digital material to the NLA. The costs for publishers would be similar to those under option 3. That is, ranging from no cost for delivery when web harvesting methods can be employed to those costs involved in delivering content on physical media and establishing compliance mechanisms. This Option would direct administrative resources to those publishers covered by the extended scheme which may be at the expense of dealing with ostensibly larger cohort of non-industry affiliated publishers. In short, as this option would not cover publications by non-APA affiliated micropublishers, there would be no costs for them.

5.2.1 Consumers

No costs to consumers are anticipated.

Net benefit analysis

This option would not achieve the desired objectives of an extended legal deposit scheme as it would not cover non-APA 'micropublishers', involve an inefficient use of Australian Government resources and place an unreasonable burden on business.

The APA represents roughly 200 publishers, comprised mostly of larger publishing groups which publish in traditional media. There is no industry body which represents the majority of digital publishers. In particular, the membership of APA does not capture the diverse and extensive body of micropublishers in the online community. The objective of enabling the development of a comprehensive national collection would be only partially achieved by reaching an agreement which only captures major publishers. However, attempting to reach agreement with all publishers would not be an efficient arrangement for business or the NLA. Negotiating individually would place a burden on business, not all of which may be geared to take on this task. Individual negotiations would also be an inefficient use of Australian Government resources in an area where technology is encouraging a dynamic growth in participants. Therefore, this option would be more feasible if limited to negotiations with the APA.

5.3 Option 3: Amend the Copyright Act: Post Consultation Model

Who would be affected

5.3.1 Regulated industries

The main sector regulated would be the publishing industry, which will have an obligation to deliver digital material, and other content owners such as authors. Proprietors of software would also be affected. Publishers can include large and small businesses, individuals and community organisations.

Electronic publication, particularly online publication, is substantially democratic given that financial and print publishing barriers are largely removed. Potentially every Australian may be a publisher of electronic material.

It is not possible to establish a definitive figure for the number of number of actual publishers of electronic materials. At best, indicative and potential numbers may be posited. For example, the Australian web domain administration (auDA) reported 2,441,240 domain registrations as at June 2012. However, many of these registrations may be inactive and many registrants (potential digital publishers) may have registered multiple domains. Test indexing of the .au web domain in 2013 crawled 1,690,326 domain hosts. Many of these hosts will belong to a common domain, so it is evident that the actual number of active domains within the .au top level domain would be substantially less than the number of registrants reported by auDA. Even establishing the number of active domains does not equate to the number of actual publishers but it does provide an indicative figure of a potential scale of publishers involved.

The Australian Bureau of Statistics has not published statistics on publishers, specifically book publishers, since 2004 at which time there were 244 recorded. The APA claims to represent 91% of the industry (based on turnover) and reports that it has 'over 216 members'. Not all of these publishers publish digital material. However self-publishing platforms mean that not all electronic publishing will be through industry association members and, at least in theory, may include all Australians (a Copyright Agency survey of digital publishing trends in May 2011 found 54% of publishers surveyed published ebooks or digital products. Only 19.6% of those surveyed were members of the APA).

The principal active electronic publication collecting program in Australia, the NLA's PANDORA Archive, has around 15,000 publishers (including individuals, organisations, government and commercial publishers) registered as contacts as the result of seeking permission to collect and archive web based publications.

Benefits

1. Benefits for publishers

A consistent legal regime for both print and digital materials provides certainty for the publishing community.

The NLA would archive and preserve all electronic library materials selected under an extended legal deposit scheme with no charge to the publisher of those materials. Those publishers without the necessary infrastructure, expertise or business need to manage their electronic publications for the long term, could rely on the NLA to do this for them, at least for eligible resources. In this way, their contribution to the history of publishing in Australia would be preserved for posterity. However, this benefit is likely to be only a small avoided cost.

Many of the publishers of electronic materials are relative newcomers to publishing and are not represented by the traditional publishing sector. The NLA has gained an understanding of their concerns and requirements over the years by working with them to build the Pandora web archive and these relationships will stand both publishers and the NLA in good stead in commencing work on an extended legal deposit regime. There would be the opportunity to make available and preserve works that would not otherwise have been commercially viable or would have been lost over time. The extended legal deposit scheme would publicise the works of lesser known publishers.

2. Benefits for society

A genuinely comprehensive record of Australian publishing would be preserved and made available for use into the future.

The disappearance of published heritage constitutes a loss of value to a nation in terms of knowledge, culture, historical record and the primary material to support and drive education, research and innovation. The benefits of ensuring the collection and preservation of published digital materials are largely social benefits and include fostering and understanding national identity and providing access to a shared (even at times contested) social heritage.

The collection of Australia's published digital heritage is primarily of benefit as an historical research resource documenting the nation's growth and advancement culturally, socially, intellectually and commercially. The true and substantial benefit of this resource will be realised over time by the future generations who may access this material to understand and build upon their heritage and inform future research and innovation.

With the enabling legislation a more systematic collection of heritage materials could be achieved and the NLA would be able to fulfil its mandate under the National Library Act to build a comprehensive collection which will meet the diverse needs of all Australians.

Efficiencies in collecting material could be achieved by increasing the scale of automated harvesting. More timely harvesting would be possible, since delays arising from negotiating individual permissions would be removed. Scoping of harvesting and quality checking could be more efficiently managed and automated since collecting would not be restricted by the more limiting licence agreements arranged with publishers. A comprehensive warrant to collect online material would provide the NLA with the opportunity to develop more efficient workflows because the complexity of individual rights negotiations would be removed for the greater amount of material. The time currently spent by staff negotiating terms with individual publishers would be redirected into identifying eligible content to be collected through automated harvests.

5.2.3 Costs

At present, publishers bear any costs of the legal deposit scheme. Impacts on publishing groups should be considered in three categories: (a) publishers of online content (b) publishers of electronic books and journals, delivered other than on the web (e.g. email) (c) publishers of physical format electronic publications. To extend the scheme to cover electronic deposit, publishers will make significant savings of time and cost as they no longer have to pay for printing and postage of their physical material when depositing it to the NLA.

(a) Website and online publishers

Based on an estimate derived from the NLA's 2013 whole domain harvest crawl, the volume of websites to be collected annually is estimated to be 560,000. Of these websites, 557,200 were freely harvestable with no restrictions, whereas 2800 were not immediately harvestable. An explanation of these categories and their cost implications is set out below.

(i) Freely harvestable websites

For material published on the Internet that is freely accessible, the most efficient method of delivery to the NLA, and the method that is proposed, is through the process of web harvesting. This is an automated process by which a web harvesting robot requests content from a publishing web server in much the same manner as an indexing robot or web browser request. The cost of this delivery process - that is the data download cost and infrastructure to manage it - would be borne by the NLA since this form of delivery is initiated and managed by the collecting institution rather than the publisher. There is no substantive or administrative compliance cost to the publisher in responding to a 'request to deliver' when the process is automated since this forms part of the request-response protocol between the web harvesting robot and publishing web server.

(ii) Websites not immediately harvestable

When content cannot be collected by automated means, publishers will be required to respond to a request for delivery (sent in either email or hard copy form). In such cases, compliance may be simple, such as providing necessary protocols so that content may be harvested; or, in some cases, compliance may require the publisher to deliver content by other means such as FTP or on a physical carrier, in which case the cost of preparing the material for delivery by electronic or physical means and transporting it (if appropriate) would be borne by the publisher.

The standard cost of compliance when the publisher is required to deliver content is estimated to be within the same range of costs for delivering physical format electronic material published on a physical carrier (discussed below), that is between A$3 and A$19. The lower figure in the range would be applicable to relatively trivial compliance such as the supply of a login protocol while the upper end of the range would be applicable when files may need to be copied to a physical carrier and posted to the National Library. It is expected that electronic deposit will become more popular for publishers as hard copy material continues to be replaced by electronic publishing. It should be noted that in some circumstances, when there is a substantial amount of content to be supplied, the compliance costs may be higher and may involve 'setup' costs by publishers to facilitate the delivery of large amounts of data. A survey conducted by the Publishers Association in the UK for the 'Impact Assessment for Regulation for the Legal Deposit of UK On Line Publications' (2012) estimated setup costs as between £1,300 and £2,000 (between A$2,000 and A$3,000) with the average administrative burden per deposit of between £3 and £6.50 (between A$5 and $10). The costs in such cases where compliance is more complex may be able to be mitigated by negotiating the timing and frequency of deposit. For example it may be acceptable and appropriate in some cases to deposit at an 'end of life' point only. Those publications that are likely to be more complex in respect to delivery compliance and incur more cost are those with a large amount of content published in a restricted manner from a content management system. So, the content involved, in terms of collection material, may be substantial. However, the number of websites (and publishers) involved as a percentage of published online material is estimated to be small. In a test crawl of the entire .au web domain conducted on behalf of the National Library in April 2013, less than 0.5 of the web pages crawled returned 'unauthorized'(401), 'payment' required (402) and 'forbidden' (403) HTTP client error status codes indicating the presence of access restrictions.

(a) Potential loss of earnings

Some publishers of freely accessible online content on websites generate earnings by including advertising or 'click through' functionality on their sites. The archived copies of these sites, being static versions, will not provide this revenue stream when accessed. This potential limitation upon a content owner's potential for earnings will be mitigated by keeping access to the archived version at a remove from live search engines so that the archived version would not compete with the live version in a commercial context. Moreover, since the archived version will also provide links to the live version and other resource discovery metadata may be added - for example the creation of catalogue records or search indexes for archived content - there is a potential in fact to enhance discovery and direct additional traffic to the live site from the archived version and associated metadata.

In 2005 the NLA conducted a survey of publishers of electronic materials already archived to assess the impact of archiving as perceived by the publishers. In response to the question as to whether PANDORA archiving had affected the number of hits on online publications 65% responded that it had not. Of those that said it had an effect, 92% said that it had been a positive effect. In response to the question of any impact on sites that generate revenue 88% said there was no impact, 11% said the impact was positive and only 1% said the impact was negative (see, Crook, 2006, 'For the Record: Assessing the Impact of Archiving on the Archived', RLG DigiNews, vol. 10, no 4. http://worldcat.org/arcviewer/1/OCC/2007/08/08/0000070511/viewer/file3438.html#article0)

Where content is not freely available, but is available by payment or subscription, the content would not be made freely available by the NLA while the publisher's commercial interest remains active. Access would be limited to that permitted under the Copyright Act so as not to conflict with the publisher's exploitation of the work.

(b) Delivery of a TPM-free copy

There are many types of TPMs which are used for different purposes. These include, but are not limited to, passwords, encryption, copy limiting, time limiting, reading limiting and watermarking. Since TPMs differ in their form and how they are applied, it is not possible to propose a standard cost that may be incurred in retaining or preparing TPM free versions for delivery to the NLA.

However, because publishers will be alerted to the requirement to deliver a TPM-free version of electronic material, where practical, efficiencies may be found by incorporating the preparation (and retention for compliance) of a TPM-free copy within their workflows. For example, in certain cases it may be possible to retain and deliver a copy before the TPM is applied to the content.

3. Consumers: No costs to consumers are anticipated.

4. Balance of cost offsets for Option 3

The proposed amendment provides for the continuing evolution of publishing from print material to electronic. It is deregulatory and would benefit business, community organisations and individuals who are required to comply with it.

Table A calculates the balance of cost offsets (savings) for Option 3. $394,975.03 is the ongoing cost to dual publishers (print and electronic) of delivering print material under Option 1 (take no action) that might have otherwise been delivered electronically under Option 2. The delivery of electronic material under Option 2, including new digital-only material that was not previously collected under the scheme, is $269,828.87. Therefore, although digital-only publishers will be subject new costs under the revised scheme, an overall cost saving of .125 million is gained. There is a cost reduction for stakeholders. The savings to dual publishers who now only need to provide electronic copies of their publications to the library is estimated to outweigh the cost to electronic-only publishers.

Please see over for cost offset table.

Note: Costs for print-only publishers are not costed as they will remain the same.

Key cost assumptions and stakeholder views:

The NLA provided the data to inform the above calculations. These figures are well informed estimates gathered through international best practice, consultation and though a thorough understanding of the publishing industry in Australia. The electronic deposit figures are based upon estimates of methodology and processing costs as established by the British Library, combined with Australian production figures for hardback books and local postage and courier averages. Electronic deposit will be available via simple web-form, the preferred method of deposit for smaller publishers. Cost estimates for middle and small publishers are based upon the assumption of using this form with a readily available format. For larger publishers, it is assumed that investing in systems compliant with the NLA systems will achieve sharp per-deposit savings. The estimated cost of ebooks is between $3 and $19. Wages are based on Australian Bureau of Statistics Clerical and Administrative workers - $30.40 per hour. According to the National Library of Australia, these estimates are in accordance with their view that the extended legal deposit scheme will represent a cost saving to publishers depositing digitally.

Net benefit analysis

Dual publishers will now have the advantage of submitting an electronic format, rather than more expensive hardcopy format work to the NLA. In the past, they were required to publish an extra copy and post it to the National Library which imposes a burden of time and cost. This will be significantly reduced with the option to submit, for example, an e-book instead.

Under the existing legal deposit scheme, publishers of electronic only works are not required to deposit copies of their material to the NLA. Their works would need to be submitted under the new scheme; however it would be request driven which will reduce the burden and volume of works they are required to send and the NLA receive. Therefore the new scheme imposes costs for electronic only publishers.

For online electronic works, publishers will only need to submit what is requested by the NLA. For offline electronic works, the scheme will remain the same. However, as indicated above in table A, the net benefit of the scheme is deregulatory and produces savings for the sector. Although electronic publishers would now be impacted under the new scheme, overall savings are gained for the sector.

Option 4: Amend the Copyright Act: pre-consultation model

The impact analysis of option 3 is relevant to this option, except for the differences which are set out in this section.

Benefits

Benefits to government and to consumers for this option would be less significant than for option 3 for the reason that the proposed definition of 'electronic library material' is not technology neutral and thus would become outdated in the future. Costs

Costs, including perceived costs, to business would be more significant than for option 3 in the following ways:

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this option would require deposit of a work in all formats, whereas option 3 would require deposit of a work in only one format, provided that copy is a 'best copy'

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this option does not exempt publishers from delivering the same work under more than one legal deposit provision

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this option leads to an increased loss of profits as it does not give publishers the option of delivering a copy of a work which is protected by a TPM (together with an unprotected copy) so that the protected copy may be used for public access

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this option does not include guidelines, which are intended to provide transparency and reassurance to publishers of adequate security measures for deposited material to eliminate risks of loss of profits by publishers and a further commitment by the NLA to minimise costs for publishers to the extent possible

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this option does not include a specific exemption from liability in contract or copyright for publishers delivering material in accordance with the extended legal deposit obligation, a risk which was perceived by publishers to be significant, as demonstrated in the consultation process; and

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this option does not contain specific exclusions from the definition of 'electronic library material', which means that confidential material may potentially be included, leading to the risk of losses to business.

Net benefit analysis

When compared with option 3, this option is a less developed policy framework, without stakeholder input and engagement and contains some considerable shortcomings. The benefits to government and to consumers for this option would be less significant than for option 3 for the reason that the proposed definition of 'electronic library material' is not technology neutral and thus would become outdated in the future.

Costs to publishers would be more significant under this option when compared to option 3. As noted above, potential increased costs include: unreasonable burdens on business to deposit work in all formats; not exempting publishers from delivering the same work under more than one legal deposit provision; a potential loss of profits by requiring publishers to provide works without TPM protection; no guidelines or specific exemption from liability; and does not specifically exclude confidential material.

6. WHO WILL YOU CONSULT ABOUT THESE OPTIONS AND HOW WILL YOU CONSULT THEM?

6.1 Previous public consultation: 2007 - 2011

In October 2007, the previous Government initiated a consultation process stimulated by a discussion paper inviting comment on the possible extension of the legal deposit scheme. This discussion paper considered extension of the scheme to digital and audio-visual material. Legal deposit of audio-visual material is outside the scope of this current process. In 2011 the Government continued this process. A working group with representatives from the then Department of the Environment, Water, Heritage and the Arts (DEWHA), the Department of Broadband, Communications and the Digital Economy (DBCDE) and AGD assessed submissions. Twenty-seven submissions were received, 19 supported extension, four opposed it and four supported the current voluntary arrangements. Cultural institutions expressed support for the extension, while the publishing, film and broadcasting industries expressed concerns related to potential costs and administrative burden.

6.2 Recent public consultation: 2012

A further public consultation was held from 7 March 2012 to 15 April 2012 in response to a discussion paper on a proposed extended legal deposit model.

The draft model proposed to:

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retain the existing definition of 'library material' and adapt it to the digital environment

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require publishers to remove technological protection measures before deposit

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require publishers to bear administration and compliance costs

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allow public access to material through the existing copyright framework for libraries and archives, and

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allow the NLA to use deposited material in accordance with existing copyright exceptions.

Twenty-three submissions were received from content owner groups including publishers, authors and collecting societies, government agencies, cultural institutions including the NLA and state libraries, intermediaries, academics and other interested individuals.

6.2.1 Main findings of the 2012 public consultation

The main suggestions from stakeholders in relation to the definition of 'library material' were:

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a new technology-neutral and format-neutral definition of library material

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incorporating 'cultural significance' as a basis for legal deposit

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requirement to deliver a 'best copy' in any format

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specific exclusions, such as audio-visual material, infringing material, confidential material, and

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clarification of an approach for dealing with underlying software, websites and databases.

In relation to TPMs:

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cultural institutions supported a requirement on publishers to remove TPMs prior to delivery, at the expense of the publisher

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content owners submitted that removal of TPMs should not be required, due to the risk of exposing unprotected copyright material to public access

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content owners and cultural institutions suggested alternative means of granting the NLA access to TPM-protected material for preservation purposes only, such as:

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requiring publishers to provide a TPM-free copy together with a TPM-protected copy

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requiring publishers to provide digital keys to the NLA for safekeeping

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granting the NLA an exception to circumvent TPMs

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voluntary removal of TPMs by publishers, and

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some content owners proposed an obligation on the NLA to secure unprotected material.

In relation to administration and compliance costs:

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cultural institutions submitted that there should be greater penalties for non-compliance, equal to or exceeding the cost of compliance

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content owners either submitted that content owners should be reimbursed for compliance costs or noted that compliance costs could be significant, for example, due to the need to develop systems to facilitate compliance, or to provide operating systems to allow meaningful access to deposited material, and

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content owners submitted other means of reducing compliance costs e.g. requiring the NLA to purchase library material that is costly to manufacture, restricting deposit demands to an annual basis, not requiring publishers to modify works prior to delivery.

In relation to public access to deposited material:

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cultural institutions supported granting access in accordance with existing copyright exceptions, and

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content owners submitted that there should be restrictions on public access, such as restriction to on-site access, use of designated terminals with no printing or communication facilities and granting access to an electronic copy to one user at a time.

In relation to use of deposited material by the NLA:

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stakeholders agreed that the NLA should be able to use deposited material in accordance with existing copyright exceptions for preservation copying.

6.3 Targeted consultations

Targeted consultations were held from 26 November 2012 to 21 December 2012 to address the main concerns raised in the 2012 public consultation. During this time, this Department chaired consultations involving Office for the Arts and the National Library and met with the Australian Copyright Council, the Australian Publishers Association, the Australian Broadcasting Corporation and the Australian Digital Alliance. The views of Copyright Agency and the Australian Society of Authors were also represented. The National Film and Sound Archive of Australia attended as an observer.

The main issues discussed in the targeted consultations were public access to deposited material, security concerns and costs associated with removal of technological protection measures, compliance costs and the definition of 'library material', particularly in relation to dynamic content and software. Significant progress was made on substantive issues.

Out of these public consultations the following decisions were made and were included in the proposed option 2 scheme:

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new technology-neutral and format-neutral definitions for online and offline electronic library material

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a requirement that a work that is delivered pursuant to the extended legal deposit obligation must be a 'best copy' of the work in any format in which the work is published

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a requirement that any work that is deposited with a TPM be accompanied by a TPM-free version, to allow the TPM-protected copy to be used for public access purposes and the TPM-free copy to be stored securely by the NLA and used only for preservation purposes

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an exemption from liability in contract or copyright for publishers delivering material in accordance with the extended legal deposit obligation

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specific exclusions, and

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exemption from delivering the same work under more than one legal deposit provision.

7. WHAT IS THE BEST OPTION FROM THOSE YOU HAVE CONSIDERED?

Option 3: Amend the Copyright Act: Post Consultation Model

It is recommended that option 3 is adopted as this option provides the most efficient way to identify and collect electronic published material whilst minimising the impact and cost for business. This is the recommended option as it achieves the stated objectives of comprehensiveness, has stakeholder buy-in and is the most well developed policy framework for an extended legal deposit scheme.

This option was developed following thorough consultation with cultural institutions, publishers and other content owners and the general public. The current proposal includes some significant modifications suggested by stakeholders and addresses concerns raised by affected parties during the consultations to the reasonable satisfaction of those parties.

This option assumes that the NLA will take reasonable steps to ensure that content owners' concerns are adequately addressed in guidelines detailing the day-to-day operation of the scheme.

Option 1, 2 and 4 could not be reasonably implemented by the Attorney-General's Department. They do not equally fulfil the criteria required to efficiently collect electronic material. For further analysis, please refer back to the net benefit analysis statements for each option 1, 2 and 4 in Section 5.

8. HOW WILL YOU IMPLEMENT AND EVALUATE YOUR CHOSEN OPTION?

The NLA will administer the proposed extended legal deposit scheme. The NLA would manage costs. The NLA intends to evaluate the operation of the scheme and report to the National Library Council. Any evaluation reports would be shared with the Attorney-General's Department.

The legislative amendments would commence six months after Royal Assent to allow the NLA to publish guidelines prior to the amendments coming into force.

NLA records of the numbers of delivery requests made, and the proportion of refusals or non-compliant responses, will provide a means of monitoring content owner responses to the extended scheme.

Regulated parties would be required to deliver electronic library material to the NLA, as described at 5.1.

It is intended that the proposed legislative scheme will be technologically neutral to avoid becoming outdated within a short period of time, and therefore will only be reviewed if the need arises.

Regulations may be amended to prescribe material to be excluded from the definition of electronic library material as required and would be reviewed periodically.

The guidelines on the day-to-day operation of the scheme will be flexible, and the NLA would develop and periodically review these guidelines in consultation with interested parties

9. STATEMENT OF POLICY PROCESS

This statement was provided to OBPR for consideration under the previous assessment system in 2013. The RIS required some changes as directed by OBPR. Subsequently, and before final approval under the previous assessment system, the assessment process changed. This statement was resubmitted to OBPR for first pass assessment on 15 May 2014 following discussions with OBPR regarding the requirements to satisfy the new assessment system. The most significant change relates to the inclusion of the regulatory burden cost offset estimate table and further analysis of the net benefits of all options put forward. This statement now more clearly identifies that the measure will be deregulatory and that to modernise the legal deposit system from physical deposit to physical and optional electronic deposit will reduce the burden of the existing system.

APPENDIX A - Cultural significance

In the context of the NLA's statutory function to comprehensively collect material relating to Australia and Australians, the concept of 'cultural significance' should be understood as a broad guiding principle for inclusion rather than as a limiting and privileging selection tool.

Cultural significance as defined in the Burra Charter means aesthetic, scientific, social or spiritual value for past, present or future generations (http://australia.icomos.org/wp-content/uploads/BURRA-CHARTER-1999_charter-only.pdf). While the Burra Charter is intended specifically for heritage places, the principle of cultural significance is also applicable to documentary heritage. While the principle is broadly inclusive it does permit a distinction from material that has only commercial or utilitarian value which would not be understood as having cultural significance and would not come within the remit of the collecting for cultural heritage purposes.

Digital publications are by their nature dynamic, innovative, multimedia, hypertextual, interactive, democratic and protean in form and cannot be simply equated to print publication typologies and discrete categories of publications for the purpose of understanding and defining cultural significance. An online ejournal or ebook that bears some resemblance to a print journal or book does not by its form alone carry more cultural significance than a blog or website.

Moreover, as the Burra Charter Guidelines state in respect to historical built heritage (2.3) (http://australia.icomos.org/wp-content/uploads/Guidelines-to-the-Burra-Charter_-Cultural-Significance.pdf), but being equally applicable to documentary heritage: 'significance will be greater where evidence of the association or event survives in situ, or where the settings are substantially intact, than where it has been changed or evidence does not survive'.

While cultural significance of itself may not define a narrow remit for what should be subject to collection, other conditions (or threshold tests) may be used to prioritise material for the practical purpose of a collecting regime. Such conditions include: provenance, representativeness, rarity, integrity and substance. Such conditions may be incorporated into the NLA's collection policies.

Cultural significance as understood in heritage materials may grow or diminish over time. The dynamic nature of digital material - its susceptibility to rapid publishing, change and disappearance - necessitates the collection of such material in an inclusive and comprehensive manner, as digital artefacts, so as to enable the assessment by all Australians of their cultural significance over time.

ATTACHMENT B - UNIFORM EVIDENCE LAW ACTS COMPARATIVE TABLES

The following tables note where the provisions are substantially equivalent, substantially different, or where there are no equivalent sections in the Evidence Act 1995 (Cth), in comparison to the following Acts:

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Evidence Act 1995 (NSW)

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Evidence Act 2008 (Vic)

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Evidence Act 2001 (Tas)

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Evidence Act 2011 (ACT), and

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Evidence (National Uniform Legislation) Act 2011 (NT).

All of these Acts are based on the Model Uniform Evidence Act Bill, as endorsed by the then Standing Committee of Attorneys-General in 2007.

Provisions which are substantially equivalent include provisions that have minor drafting variations such as those required because an Act is to operate in a jurisdiction that is not the Commonwealth. For example, the following are considered to be minor drafting variations:

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references to a court of a particular State or Territory (i.e. a 'New South Wales court' in the New South Wales Act) in place of a 'court' in the Commonwealth Act, and

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differences in terminology, for example where 'accused' is used in the Victorian Act, whereas 'defendant' is used in the Commonwealth Act.

Provisions that are substantially different include instances where a subsection of the Commonwealth Act does not appear in the equivalent Act of the jurisdiction or where a jurisdiction has included a subsection in its Act that is additional to what appears in the Commonwealth Act.

This table is current as at 8 July 2014.

Dictionary

Please note that the Dictionary in the Evidence Act 2001 (Tas) is located in sections 3-3D instead of at the end of the Act.