NZ Hate Crime

The New Zealand Law Commission has released its report regarding the review of law relating to hate crime in Aotearoa New Zealand, with a focus on whether the law should be changed to create standalone hate crime offences. 

 The Commission states 

1.2 The term ‘hate crime’ is not used or defined in legislation. In this Report, we use it as a descriptive term (as opposed to a legal one) to refer to conduct that is: (a) an offence under the existing law (for example, assault or wilful damage); and (b) committed because of hostility towards a group of people who share a common characteristic. 

1.3 Under the current law, there are no offences that deal specifically with hate crime. Instead, section 9(1)(h) of the Sentencing Act 2002 provides that if an offence was committed because of hostility towards a group of people with an ‘enduring common characteristic’ (such as race, colour, nationality, religion, gender identity, sexual orientation, age or disability), the courts must take that into account as an aggravating factor when sentencing the offender. We call this the ‘hostility aggravating factor’. When it applies, the courts may impose a harsher sentence than they would have for an equivalent offence that was not motivated by hostility towards a group of people. We refer to this approach of treating hostility as an aggravating factor at sentencing as the ‘sentence aggravation model’ of hate crime law. 

1.4 Hate crimes harm not only the direct victim but also the wider group of people who share the same characteristic. Hate crimes send a message to the affected group that they are not accepted or valued by society. More broadly, both hate crimes themselves and society’s response to them can affect social cohesion. 

1.5 This Report considers whether the current law adequately responds to hate crime and, if not, how any concerns about its operation should be addressed. We conclude that, while there are some problems with current law and practice, these are not fundamental problems with the sentence aggravation model. The sentence aggravation model remains the most appropriate way to address hate crime in Aotearoa New Zealand. We recommend a series of reforms to improve its effectiveness. 

1.6 The nature of hate crime and the harm it causes mean it is important for the law to respond to it effectively. The justice system should seek to hold hate crime offenders accountable, send a clear message to the public that hate crimes are unacceptable, reduce occurrences of hate crimes as far as possible and reassure affected communities that hostility towards them will be treated seriously. These objectives provide the framework for our assessment of the current law. 

1.7 We find that there are some problems with how the current law is working:

(a) It does not require the courts to communicate clearly to the public (such as through sentencing decisions) that an offence was a hate crime and that this makes it more serious. This means hate crimes may not be consistently denounced. 

(b) It does not provide a mechanism for systematically documenting court findings that an offence was motivated by hostility. This limits the ability of Ngā Pirihimana o Aotearoa | New Zealand Police, the courts and Ara Poutama Aotearoa | Department of Corrections to deal with the offender appropriately in future. It also makes it difficult to assess how the justice system is responding to hate crime and to develop appropriate laws and policies to improve that response. 

(c) It does not provide a mechanism to ensure the courts are aware that the hostility aggravating factor may apply to an offence and consider it at appropriate points in a proceeding. 

1.8 We conclude that these are not fundamental problems with the current sentence aggravation model. They can be addressed through targeted reforms to the existing model. We do not recommend creating hate crime offences. They would not comprehensively resolve the problems we have identified because it is unlikely that hate crime offenders would be consistently charged with or convicted of hate crime offences. One reason for this is that hate crime offences would be more difficult to prove than the equivalent non-hate offence, which is likely to affect charging decisions. Creating offences would also have significant downsides. For example, it is likely to increase the complexity of criminal proceedings and could lead in some cases to unintended outcomes such as hostile motivation not being addressed at all. 

1.9 In this Report, we make recommendations that would: (a) increase the consistency with which hostility is considered in court proceedings by creating a system for flagging hate crime cases in the courts and providing training and guidance for justice system actors; and (b) require the courts to systematically record the application of the hostility aggravating factor on the permanent court record and to clearly address it in sentencing decisions. 

1.10 Additionally, we recommend reform to the wording of section 9(1)(h) to clarify that the aggravating factor can apply whether or not the offender believes the victim is a member of the targeted group of people. We also recommend adding ‘sex’ to the illustrative list of enduring common characteristics.

The Commission's Recommendations are 

R1 The Sentencing Act 2002 and Criminal Procedure Act 2011 should be amended to provide that: a. a charging document may specify that section 9(1)(h) of the Sentencing Act 2002 is alleged to apply to an offence; b. the court may amend the charging document at any time before sentencing to add or remove the specification; and c. ff the court determines at sentencing that section 9(1)(h) applies to an offence, it must make an entry on the permanent court record to that effect (whether or not the charging document specifies that section 9(1)(h) is alleged to apply). 

R2 The courts should share the following information with Ngā Pirihimana o Aotearoa | New Zealand Police and Ara Poutama Aotearoa | Department of Corrections: a. The fact that a charging document specifies that section 9(1)(h) of the Sentencing Act 2002 is alleged to apply to an offence. b. Any entry on the permanent court record of a determination by the court that section 9(1)(h) applies to an offence. 

R3 The recording and sharing of information by the courts in accordance with recommendations R1(c) and R2 should also include information about the characteristic(s) and group(s) of people targeted by the offending if it is technically feasible to record that information. 

R4 The Sentencing Act 2002 should be amended to provide that, if section 9(1)(h) applies, the court must state (using any words that it thinks fit) that the offence was committed because of hostility towards a group of people with an enduring common characteristic. 

R5 Section 9(1)(h)(ii) of the Sentencing Act 2002, which requires that “the offender believed that the victim has that characteristic”, should be repealed. 

R6 Section 9(1)(h) of the Sentencing Act 2002 should be amended to include ‘sex’ in the illustrative list of characteristics. 

R7 Ngā Pirihimana o Aotearoa | New Zealand Police should review and update its guidance on hate crimes and other relevant guidance to ensure police officers and prosecutors are informed about any changes to the law as a result of this review. 

R8 Updated Ngā Pirihimana o Aotearoa | New Zealand Police guidance relating to hate crime prosecutions should be shared with Crown solicitors. 

R9 Ngā Pirihimana o Aotearoa | New Zealand Police and the Crown Solicitor Network (supported by Te Tari Ture o te Karauna | Crown Law) should provide training on any changes to the law as a result of this review. 

R10 Te Kura Kaiwhakawā | Institute of Judicial Studies should consider developing guidance and providing training to judges on any changes to the law as a result of this review. 

R11 Ngā Pirihimana o Aotearoa | New Zealand Police should publish data on reported hate crimes annually. 

R12 If the amendments in R1 are made, Te Tāhū o te Ture | Ministry of Justice should publish court data on hate crime cases annually.

Food Safety

The Victorian Government has announced establishment of Safe Food Victoria: "a new, independent regulator" under the Safe Food Victoria Act 2026 (Vic). It replaces regulation by Dairy Food Safety Victoria, PrimeSafe and the Department of Health (through the Health Regulator). Safe Food Victoria also provides support for the 79 local government authorities who conduct food safety regulation. 

 Establishment reflects the Government’s Economic Growth Statement "committed to halving the number of business regulators by 2030 to make it simpler and easier to do business". 

 Food safety functions performed by Agriculture Victoria will transition from late 2027. 

 Safe Food Victoria directly regulates many food businesses. Safe Food Victoria also performs incident response, recalls and council regulatory support under the Food Act 1984 (Vic): 

  Meat Facilities licensed under Meat Industry Act 1993 include: abattoirs knackeries processors retail outlets (other than supermarkets). 

Seafood Facilities licensed under the Seafood Safety Act 2003 include: seafood producers and harvesters wholesalers processors retailers. 

Dairy Facilities licensed under the Dairy and Food Innovation Act 2000 include: dairy farmers milk carriers dairy manufacturers distributors declared foods. 

Horticulture, sprouts and eggs Functions currently performed by Agriculture Victoria will transition to Safe Food Victoria at a later date (likely from late 2027).

The Government indicates 

 Victoria’s food regulatory system is undergoing the most significant reform in the last 30 years. The establishment of Safe Food Victoria represents an important milestone in this process. 

Reform stages 

Stage 1: Establishment of Safe Food Victoria The first stage of reform involved creating a new, independent regulator – Safe Food Victoria – consolidating PrimeSafe, Dairy Food Safety Victoria and food safety functions from the Health Regulator and Agriculture Victoria. Safe Food Victoria began operation on 1 July 2026. Safe Food Victoria reports to the Minister for Agriculture. 

Stage 2: Development of a new framework for food safety in Victoria The second stage of reform will develop a new, modernised regulatory framework for food safety and further consolidate functions in Safe Food Victoria. During this stage, the optimal role for local government within this system will be considered. This stage of reform will streamline regulatory processes and reduce red tape, ensuring greater consistency and enhanced collaboration across the supply chain. Safe Food Victoria will uphold the current high food safety standards while introducing simpler, more unified systems. This process is in early stages and will continue through to 2027.

The Minister for Agriculture issued a Statement of Expectations for Safe Food Victoria: 

My expectations are that SFV deliver on the following 4 themes: 1. Provide continuity of regulatory services 2. Drive efficiency and regulatory burden reduction 3. Build a strong and positive organisational culture and capability 4. Enhance stakeholder engagement. The initiatives and actions outlined below describe how I expect SFV to address these priorities: 

1. Provide continuity of regulatory services I expect SFV to maintain and improve Victoria’s food safety regulatory system, to reduce the impact and risk that unsafe and unsuitable food has on the public, and provide regulatory assurance for the community, businesses and trade markets. Specifically, I expect SFV to: • Ensure the continuity of risk based, cost effective food safety regulatory services, consistent with the Safe Food Victoria Act 2026 and other food safety legislation. • In support of SFV’s new role at the centre of food safety regulatory operations, provide system stewardship – particularly with local government, the Department of Health and Department of Energy, Environment and Climate Action (DEECA) – and system wide risk management. o Support the delivery of food regulation across local government, including by providing information and guidance for consistent administration of food safety legislation. • Work with the Department of Health to support its efforts to reduce food and diet-related chronic disease, particularly in the implementation of food standards for labelling and composition. • Establish clear protocols to support, respond and prepare for food safety incidents, including data sharing with the broader public health infrastructure in conjunction with the Department of Health. • Adopt a proactive and engaged presence in the bi-national food regulatory system, including as Victoria’s representative on the Implementation Subcommittee for Food Regulation, in important export market committees and other groups as appropriate. • Work collaboratively with the Australian Government Department of Agriculture, Fisheries and Forestry to maintain access for industry to export markets. • Develop and implement a coherent regulatory culture and posture that recognises the role of regulatory and food safety culture for both SFV and the businesses it regulates, and how these impact and change the approach to compliance. 

2. Drive better regulation, regulatory efficiency and regulatory burden reduction Without compromising food safety outcomes, I ask that you explore how regulation can be better delivered in partnership with industry, while still maintaining a strong regulatory posture. I expect SFV to: • Continue to develop a regulatory system that expects and acknowledges a mature food safety culture as key to achieving food safety outcomes. • Encourage food safety education and outreach as a core regulatory tool. • Seek opportunities to reduce the regulatory burden on industry where it can be done without compromising food safety outcomes – particularly through the recognition of industry programs and co-regulation opportunities. • Drive a program of internal efficiency measures to lower the overall cost of delivering regulatory services. • Maintain a sustainable internal budget position to ensure SFV can respond to emerging risks, make critical investments in the regulatory environment, and balance cost recovery in line with the government’s Pricing for Value Guidelines. • In the context of a sustainable budget, work with DEECA to conduct a fee review to inform the overall fee settings ahead of the 2027-28 financial year. o As part of this review, and in future budget decisions, I ask that you closely consider the calibration of fee setting to ensure a fair and equitable distribution of costs across your licence base. • Report to me by the end of 2027 and annually in your annual report on SFV’s efforts to reduce regulatory burden for industry and increase regulatory efficiency within SFV as part of a program of continuous improvement. • Ensure regulation is appropriately calibrated, communicated and implemented to support small and emerging businesses. 

3. Build a strong and positive organisational culture and capability I expect SFV to work with DEECA to help ensure Victoria’s food safety system is able to manage risk and respond to new challenges, as well as support the food and agriculture sectors to seize emerging opportunities. Specifically, I expect SFV to: • Collaborate actively on further reforms to the food regulatory system (‘stage 2’ reforms) as outlined in the second reading speech for the Safe Food Victoria Bill 2026. • Maintain strong Board and organisational governance, leadership and culture, with clear accountabilities, sound decision making frameworks, and effective oversight of performance, risk, integrity, staff wellbeing and safety and regulatory independence. • Sustain and build a capable, professional workforce with the technical, scientific and regulatory expertise required to deliver risk-based food regulation. • Work with DEECA to review, update and transfer the regulatory functions associated with eggs, poultry, horticulture and seed sprouts to SFV. • Provide regular updates on SFV’s progress and efforts to use digital tools and analytics within regulatory activities, including opportunities for co-investment or partnerships with industry and broader government. This includes working with the Department of Treasury & Finance and the Department of Government Services to identify and develop digital solutions. 

4. Enhance stakeholder engagement I expect SFV to consider the industries you regulate and co-regulators you work with, as partners in mitigating the risks associated with the consumption of food. Regulation should be in the first instance a collaboration with these groups. I expect SFV to: • Establish consultative committees with representation from key industry, local government and public health groups to inform regulatory outcomes. o As part of these committees, I ask that SFV consider how to ensure the dairy, meat and seafood industries – who have had long standing relationships with Dairy Food Safety Victoria and PrimeSafe – continue to be well represented; and to encourage new and emerging sectors to engage with SFV. o Committees should include broad representation and provide opportunities for perspectives from large and small-scale food businesses and regional areas. • Engage in open and regular discussion with DEECA and other food safety regulators on emerging issues, priorities and approaches to regulation. • Identify opportunities and collaboratively support DEECA to manage the risk of biosecurity, emergencies, animal and plant diseases. • Advance Treaty readiness and respectful engagement with First Peoples, including embedding principles of self-determination, cultural safety and partnership in engagement practices and regulatory approaches. .

Australian Health ODF

The Australian Commission on Safety and Quality in Health Care has released a revised version of the Australian Open Disclosure Framework. 

 The 2026 Framework "provides a nationally consistent basis for effective communication following unexpected healthcare outcomes and harm", designed to enable all healthcare professionals working within Australian health service organisations to communicate openly with patients when health care does not go to plan. 

The Commission's Fact Sheet for practitioners states 

Open disclosure principles such as respect, transparency, and empathy are applied daily through good clinical communication - helping to build trust, support patient understanding, and foster a culture of safety and accountability. This factsheet provides a quick reference guide for Australian health service organisations and staff across all settings and sectors on when and how to perform open disclosure, based on the Australian Open Disclosure Framework (revised 2026). 

What is open disclosure? 

Things can go wrong during health care for many reasons, including human error or system failures. Open disclosure is a principles-based approach to honest, empathetic and timely discussions that involves: • Acknowledging what happened • Apologising or expressing regret • Listening to the patient’s experience • Providing clear information about what happened, next steps and follow-up • Learning to improve care 

When should open disclosure be used? 

It is important to listen and acknowledge the patient’s experience. Open disclosure is expected when: • Harm has occurred (physical, psychological, or social). Open disclosure may be considered when: • The patient raises concerns • An incident is reported via complaints, feedback, incident management reporting system or surveillance programs • The patient has not suffered harm; open disclosure may still be appropriate. Principles of person-centred open disclosure • Respectful and responsive communication • Compassionate acknowledgement and apology • A restorative process • Cultural safety for Aboriginal and Torres Strait Islander peoples 

Open Disclosure: When and how to do it 

For health service organisations 

Using the words ‘I am sorry’ or ‘we are sorry’ is essential 

How to perform open disclosure 

1. Initial disclosure 

Occurs as soon as possible after recognising harm or potential harm. Key steps: • Acknowledge that care didn’t go as expected • Share known facts (avoid speculation and blame) • Say "I am sorry" or "we are sorry" • Listen to the patient’s experience • Explain next steps and support options • Provide nominated contact position details for follow-up 

2. Formal open disclosure 

Used for serious harm, unexpected death, or when requested by the patient. 

Planning includes: • Selecting a designated open disclosure lead and support team • Identifying patient’s needs (e.g. interpreters, cultural safety) • Scheduling meetings based on patient preferences • Offering independent facilitator (if needed) • Documenting all discussions and outcomes 

Support and follow-up • Offer access to counselling, advocacy, and support services for patients and healthcare professionals involved • Discuss ongoing care needs and costs • Provide updates on investigation into the incident and planned system improvements • Ensure continuity through a nominated contact person 

Legal protection 

All Australian jurisdictions have their own apology laws that protect sincere apologies from being used against clinicians in legal proceedings. 

Trans

The Australian Human Rights Commission report Equal Identities A human rights review of the experiences of trans and gender diverse people in Australia features the following recommendations 

 Recommendation 1 Federal, state and territory governments should introduce consistent legislation to protect LGBTIQA+ people and their associates from vilification, incitement of hatred and threats of physical harm. b. develop initiatives to build workforce capacity and understanding of how intersecting forms of discrimination can affect trans and gender diverse people’s experiences of domestic, family and sexual violence Governments should design these laws in consultation with LGBTIQA+ communities, including trans and gender diverse communities, and should include both civil prohibitions and criminal offences. c. strengthen relationships and cross- capacity building between the DFSVC, crisis response services and trans and gender diverse stakeholders. 

Recommendation  2 The Australian Government Department of Social Services should require and report on LGBTIQA+ and trans and gender diverse representation in their workforce and on key advisory groups, committees and rapid reviews in key areas such as housing, domestic, sexual and family violence prevention, and community services. The Australian Government Attorney General’s Department, along with state and territory governments, should establish LGBTIQA+ justice working groups that include trans and gender diverse representation. The working groups should protect the human rights of trans and gender diverse people by: a. working with criminal justice systems (police, courts and prison systems) to design and monitor policies and practices b. working with the trans and gender diverse community to develop methods to identify and track hate crimes, including community reporting mechanisms

Recommendation 3  The Domestic, Family and Sexual Violence Commission (DFSVC) should establish an ongoing LGBTIQA+ working group, including trans and gender diverse representation, to: a. c. advancing priority areas of justice and law reform, including decriminalisation of appropriate offences, justice reinvestment and measures to address and prevent discriminatory behaviours. provide advice on initiatives to prevent and respond to gender- based violence, including implementation of the National Plan to End Violence Against Women and Children 2022–2032 

Recommendation 5 Federal, state and territory governments should provide sustainable, targeted funding to address capacity gaps in legal service provision for trans and gender diverse people, as identified in the 2025 report ‘A Blueprint for Equality: Resourcing LGBTIQA+ Community Legal Centres’. 

Recommendation 6 Federal, state and territory governments should ensure crisis accommodation and homelessness support services offer inclusive support and are adequately funded to do so. This includes increasing sector-wide awareness, understanding and capabilities about intersecting marginalisations which affect trans and gender diverse people from diverse backgrounds. 

Recommendation 7 All government, government-affiliated and government-funded bodies that collect demographic data should ensure data on gender, sexuality and innate variations of sex characteristics (sometimes known as intersex variations) is collected in line with the ABS Standard for Sex, Gender, Variations of Sex Characteristics and Sexual Orientation Variables (2020). This includes: a. collecting data on gender identity from everybody to ensure that health and support services have the data necessary to meet the needs of trans and gender diverse children and adolescents b. implementing new data collection protocols in partnership with LGBTIQA+ and trans and gender diverse specific organisations to establish community trust and ensure privacy and sensitivity concerns are understood. 

Recommendation 8 The Australian Government Department of Health, Disability and Ageing should require and report on LGBTIQA+ and trans and gender diverse representation in their workforce and on key advisory groups, committees and rapid reviews. The Department should also establish a specific ongoing LGBTIQA+ Health Advisory Group to: a. provide advice on matters relating to trans and gender diverse health, and LGBTIQA+ health more broadly b. provide advice on relevant government initiatives affecting LGBTIQA+ communities, such as the National Suicide Prevention Strategy 2025-2035 and the National Action Plan for the Health and Wellbeing of LGBTIQA+ People 2025–2035 c. advise on LGBTIQA+ health data collection and contribute to the continuous improvement of the Health Data Portal and key national data sets. 

Recommendation 9  Federal, state and territory governments should reduce barriers that prevent trans and gender diverse people from accessing all forms of healthcare, including gender- affirming healthcare. Reducing barriers includes: a. increasing staff and service resourcing to meet urgent needs on existing waitlists for publicly funded hospitals and clinics b. running proactive public awareness campaigns that address misinformation and disinformation which target trans and gender diverse people’s healthcare

Recommendation 10  Federal, state and territory governments should introduce or amend legislation to ban conversion or suppression practices. This legislation should follow the following principles: c. funding service access for trans and gender diverse people in remote, rural and regional communities. a. design the legislative framework in consultation with survivors of conversion or suppression practices. b. apply the ban on conversion and suppression practices to both religious and secular settings 

Recommendation 11 Healthcare providers and education and training institutions (i.e. universities, TAFEs) should ensure that all healthcare and healthcare-adjacent workers and students receive education and ongoing professional development on inclusive care for trans and gender diverse people. This includes awareness of how intersecting forms of discrimination can affect trans and gender diverse people’s health and access to healthcare services. 

Recommendation 12 b. apply the ban on conversion and suppression practices to both religious and secular settings Federal, state and territory governments should: c. make it unlawful to take someone out of the jurisdiction for conversion or suppression practices a. end pauses on puberty suppressants and other hormone therapies for children and young people d. allow reporting by third parties e. carefully define and provide examples of what is and is not a conversion or suppression practice f. b. ensure that, in line with other areas of adolescent medicine, Gillick competence and clinical standards of care are the framework guiding the provision of healthcare to trans and gender diverse children and young people. include an education plan which covers: i. who is protected by the law ii. how to identify conversion or suppression practices iii. awareness of harm caused by conversion or suppression practices. 1 

Recommendation 13 The Australian Government should repeal Section 43A of the Sex Discrimination Act 1984 (Cth). 

Recommendation 14 The Australian Government should: a. amend section 37(1)(d) and repeal section 38 of the Sex Discrimination Act 1984 (Cth) and make consequential amendments to the Fair Work Act 2009 (Cth), as recommended by the Australian Law Reform Commission in its 2024 report ‘Maximising the Realisation of Human Rights: Religious Educational Institution and Anti- Discrimination Laws’ b. request the Australian Law Reform Commission to further review and make recommendations about how to amend the exemption for religious bodies under section 37(1)(d) of the Sex Discrimination Act 1984 (Cth). 

Recommendation 15 State and territory governments should review and amend their anti- discrimination legislation to ensure that trans and gender diverse people have equal access to publicly funded services, including those provided by religious bodies. 

Recommendation 16 The Australian Government Department of Education should require LGBTIQA+ and trans and gender diverse representation on key advisory groups, committees and rapid reviews. The Department should also establish an LGBTIQA+ Youth Advisory Group to provide input into: a. education policy settings b. the role of teachers c. curriculum content d. targeted anti-bullying program support. 

Recommendation 17 Federal, state and territory education departments should review their current policies, practices and curricula to ensure that they support an inclusive model. This model should embed inclusion of trans and gender diverse students as part of teacher training and professional development for all staff across all levels of government funded education institutions. 

Recommendation 18 Educational institutions receiving government funding should have policies to prevent discrimination and harassment of trans and gender diverse students, staff and parents. 

Recommendation 19 The Australian Government should expand the positive duty in the Sex Discrimination Act 1984 (Cth) to cover protected attributes outlined in sections 5A, 5B and 5C of the Act. 

Moral Rights

In McCallum v Projector Films Pty Ltd (Liability Hearing) [2026] FCA 173  the  Court considered moral rights.

The introduction to the judgment states

 The central dispute between the parties to these proceedings is who is the “principal director” of the documentary film entitled “Never Get Busted!” (the Documentary or NGB). Most (but not all) of the other disputes between the parties depend on the outcome of that central question. 

The Documentary examines the colourful life of Mr Barry Cooper, who was at one time a Texan-based narcotics officer during the height of the “war on drugs” in the 1990s. The Documentary has taken over five years to complete. It has already screened at the prestigious Sundance Film Festival in Utah in the United States and had its Australian premiere at the Melbourne International Film Festival. It has also screened at other film festivals. Potential offers from streaming services await. What should have been hailed as a success by all those involved in the making of the Documentary has become the subject of an acrimonious dispute. The key protagonists have betrayed the adage applicable to journalists but equally applicable to filmmakers that they not become part of the story. 

As I stated in the interlocutory decision in these proceedings, to lay members of the public, the identification of the dispute as to who is the “principal director” may beg the question as to what is the difference between a “principal director” and a “director” of a film: McCallum v Projector Films Pty Ltd [2025] FCA 903; 187 IPR 191 at [3]. The answer to this question lies in certain interlocking provisions of Pt IX of the Copyright Act 1968 (Cth) (Copyright Act) which deals with “ moral rights ” of attribution in respect of cinematographic works. For the purposes of attribution (and, conversely, proscribing false attribution) of moral rights in respect of a “cinematograph film” where two or more individuals are involved in directing that film, s 191 of the Copyright Act provides that “a reference in this Part to the director ... is a reference to the principal director of the film and does not include a reference to any subsidiary director, whether described as an associate director, line director, assistant director or in any other way” (emphasis added). It can thus be seen that, where there is more than one person who is said to be the director of a film, the attribution of a person as the “principal director” has considerable significance to the moral rights of the relevant person. 

On one side of the dispute is the applicant (Mr McCallum) who maintains he is the principal director of the Documentary. He was engaged under successive agreements to be the director of the Documentary, first, under a Crew Agreement entered into on 24 February 2020 and then under the Director’s Agreement which was varied by a Deed of Variation in or about March 2023. Clause 9.1 of the Director’s Agreement provides that, so long as Mr McCallum fulfills his obligations under that Agreement, he is entitled to be credited as the director of the Documentary with the credit, “Directed by Stephen McCallum”. This has not occurred in any version of the Documentary that has been screened to date. Mr McCallum says that the failure to attribute him as a director of the Documentary with the credit “Directed by Stephen McCallum” amounts to an infringement of his moral rights as protected under the Copyright Act, as well as being a breach of cl 9.1 of the Director’s Agreement. 

On the other side of the dispute are the respondents. The first respondent is Projector Films; it is the counterparty to the Director’s Agreement. The second respondent is Mr Ngo. Mr Ngo has a unique role in the making of the Documentary. That is because it is common ground that Mr Ngo, together with Ms Erin Williams-Weir (who is Mr Ngo’s wife), created the idea for the Documentary. It is also common ground that Mr Ngo is a producer of the Documentary and also its principal writer. The other producers of the Documentary are Ms Williams-Weir and Mr Daniel Joyce (Mr Joyce). Mr Joyce and Mr Ngo are business partners; they are the company directors and shareholders of Projector Films. 

Initially, the respondents contended that it was Mr Ngo alone, and not Mr McCallum, who was the principal director of the Documentary. The respondents advanced this position based on a claim that in January 2022, Mr McCallum said that he would not be performing any of the editing and post-production work involved in making the Documentary, and that all this work was thereafter performed by Mr Ngo. However, the respondents no longer maintain that Mr Ngo alone is the principal director of the Documentary. The respondents now say that both Mr Ngo and Mr McCallum are principal directors of the Documentary: Defence to the Further Amended Statement of Claim (FASOC) [4(f)]. 

Having taken the position that both men are principal directors, one might have expected the respondents to ensure that both would be attributed as such in the opening and closing credits of the different versions of the Documentary that have been screened. But that has not happened. Instead, the respondents say that even though both men are the principal directors of the Documentary, Mr Ngo is the main one and deserves an enhanced credit relative to Mr McCallum. That has given rise to a dispute as to whether the credit “Directed by” in favour of Mr Ngo and the credit “Director Stephen McCallum” would signify that the former is the principal director of the Documentary to the exclusion of the latter. 

One would have also expected that once the respondents admitted that Mr McCallum was a principal director of the Documentary, there would no longer be any dispute that Mr McCallum discharged his duties as a director. But that too has not happened. Projector Films has filed and maintained a cross-claim (in the form of the Amended Statement of Cross-Claim) in which it contends that Mr McCallum did not discharge his duties as a director in breach of the Director’s Agreement. 

The issues that fall for determination involve the determination of novel legal issues that have not previously been determined under Australian law such as what it means to be a “director” or “principal director” for the purpose of the Copyright Act, whether Mr McCallum has moral rights under that Act to be attributed as the sole principal director of the Documentary, whether such rights may be waived by a “general waiver” and, if not, whether such a waiver may be regarded as a lawful consent to an infringement of those rights. The resolution of these issues turns upon disputed facts regarding who was more involved in making the Documentary. That has included disputes as tedious as who came up with the idea that Mr Cooper should wear a Hawaiian-styled floral shirt during an interview. The parties have also advanced several subsidiary claims. In all, the following issues arise for determination: (a) the Moral Rights Claims: (i) what is the meaning of the words “director” and “principal director” for the purpose of Part IX of the Copyright Act; (ii) whether Mr McCallum is the sole principal director of the version of the Documentary that was screened at the Sundance Film Festival (the Sundance Version) and in respect of any further or future versions (the Further Versions), including the feature length version which was screened at the Melbourne International Film Festival (the Feature Version), or whether both Mr Ngo and Mr McCallum are principal directors of those Versions; (iii) whether cl 6.2 of the Director’s Agreement amounts to a lawful “general waiver” of all of Mr McCallum’s moral rights under the Copyright Act or, alternatively, whether by that clause Mr McCallum lawfully consented to the infringement of his moral rights under s 195AW of the Copyright Act; (iv) if there has been no general waiver or consent to an infringement, whether Projector Films has infringed Mr McCallum’s moral rights by failing to attribute him as the principal director of the different versions of the Documentary (including by not giving him the credit “Directed by Stephen McCallum”) and falsely attributing Mr Ngo as the sole principal director; and (v) whether Mr Ngo has infringed Mr McCallum’s moral rights under the Copyright Act; (b) the Misleading and Deceptive Conduct Claims: (i) whether Projector Films engaged in misleading and deceptive conduct contrary to s 18 of the Australian Consumer Law (ACL) (as contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth)) by making certain representations: (A) on the website called “IMDb” (historically known as the Internet Movie Database); (B) in the screening of the Documentary at the Sundance Film Festival and the Melbourne International Film Festival; (C) in the promotional materials relating to those festivals; and (D) in communications with Screen Australia; (c) the Breach of Contract Claims: (i) whether Projector Films breached cl 9.1 of the Director’s Agreement by failing to give Mr McCallum the credit “Directed by Stephen McCallum”; (ii) whether Projector Films breached cl 9.2 of the Director’s Agreement by failing to seek Mr McCallum’s agreement as to the inclusion of credits for Mr Ngo as a director of the Documentary; (iii) whether Projector Films has breached cl 3 of the Director’s Agreement, as varied by the Deed of Variation, by failing to pay two invoices issued by Mr McCallum; and (iv) whether Projector Films has breached cl 5 of the Director’s Agreement by failing to provide Mr McCallum with various cuts and edits of the Documentary for his approval; (d) the Cross-Claims: (i) whether Mr McCallum breached cll 2.1(a) and (b) of the Director’s Agreement by failing to discharge his duties as a director; (ii) whether Mr McCallum breached cl 7.1(c)(iv) of the Director’s Agreement by bringing adverse publicity or notoriety to the Documentary and/or Projector Films; and (iii) whether Mr McCallum engaged in misleading or deceptive conduct by making representations or causing them to be made to third parties in relation to the IMDb website and the attribution of directorship of the Documentary. 

The parties asked by consent that I only determine issues of liability at this stage, and I agreed to take that course. The questions of relief, remedy and other orders are to be decided separately. I have structured my reasons to address Mr McCallum’s moral rights claims in Part B, his breach of contract claims in Part C, his claims under the ACL in Part D, and Projector Films’ Cross-Claim in Part E. 

SUMMARY OF FINDINGS 

By way of summary, my key findings are as follows. Having regard to the totality of the facts, and on the proper construction of the words “director” and “principal director”, I am satisfied that Mr McCallum is the sole principal director of the Documentary for the purpose of the Copyright Act. Whilst I am satisfied that Mr Ngo is a director of the Documentary, I am not satisfied that he is a principal director. 

For the reasons set out in Part B 10, the text, context and purpose of Part IX of the Copyright Act do not support a “general waiver” of the moral rights recognised by that Part. It follows that cl 6.2 of the Director’s Agreement is not enforceable to the extent that it seeks to operate as a general waiver of Mr McCallum’s moral rights under the Copyright Act. Nor does that clause (properly construed) give rise to a general consent to the infringements of the Copyright Act that Mr McCallum has claimed in these proceedings. 

I am satisfied that Projector Films infringed Mr McCallum’s moral right of attribution by failing to attribute him as the principal director of the Documentary by not giving him the credit “Directed by Stephen McCallum” when regard is had to the specific context of the opening and end credits of the Documentary. I am also satisfied that Projector Films has infringed Mr McCallum’s moral right against false attribution by conveying that Mr Ngo is the sole principal director of the Documentary in the specific context of those opening and end credits. I am further satisfied that Mr Ngo also infringed Mr McCallum’s moral rights under the Copyright Act. 

In relation to the breach of contract claims advanced by Mr McCallum, I am satisfied that Projector Films breached the Director’s Agreement by: (a) failing to give Mr McCallum the credit “Directed by Stephen McCallum”; (b) failing to seek Mr McCallum’s agreement as to the positioning of the credits that were included in the versions of the Documentary that have been screened which attribute Mr Ngo as a director of the Documentary; (c) failing to pay two invoices issued by Mr McCallum; and (d) failing to provide Mr McCallum with various cuts and edits of the Documentary for his approval. 

In relation to Mr McCallum’s ACL claims, I am satisfied that Projector Films engaged in misleading and deceptive conduct contrary to s 18 of the ACL by making or causing to be made: (a) the “First IMDb Representation” and the “Third IMDb Representation” (as defined below); (b) the “Sundance Website Representations” and the “Sundance Version Director Representation” (as defined below); and (c) the “First MIFF Representation” (as defined below). 

As to Projector Films’ Cross-Claim, I am not satisfied that Mr McCallum breached cll 2.1(a) and (b) of the Director’s Agreement by failing to discharge his duties as a director. Nor did he engage in misleading or deceptive conduct as alleged by Projector Films. While Mr McCallum did not breach cl 7.1(c)(iv) of the Director’s Agreement by bringing adverse publicity or notoriety to the Documentary, I am satisfied that he did breach cl 7.1(c)(iv) in one respect by bringing notoriety to Projector Films.

GenAI

The Federal Court of Australia has released a new Practice Note on the use of Generative AI in proceedings before the Court. 

 The Practice Note outlines the Court’s expectations, highlights the potential benefits of Generative AI, and sets clear guidance on responsible use, accountability and disclosure obligations. It also identifies areas where particular caution is required, including pleadings, submissions, evidence and confidential material. 

 For further information ... 

  Practice Note

  Notice 

  Media release

Genes

The Genetic Discrimination Bill has now passed into law. 

The Treasury Laws Amendment (Genetic Testing Protections in Life Insurance and Other Measures) Act 2026 received Royal Assent on 8 April and will come into full effect from 8 October 2026.