Identifiers

Today's NY Times has a reminder about legal existence as identity paper and identifiers -

About 1,500 lawmakers, government employees and foreign guests were finally freed in the early hours of Friday morning after thousands of irate protesters had formed a human chain around the Bosnian Parliament building in Sarajevo for 14 hours to demonstrate against an impasse over a law on identification documents.

Women with babies in carriages, pensioners and students faced off with police officers deployed to the scene as foreigners trapped inside — including about 250 foreign bankers attending a conference to examine investment opportunities — called their embassies back home to say they had been taken hostage.

Some of the protesters held up a sign saying, “We don’t want entities, we want identities” — a reference to the byzantine bureaucratic system in Bosnia that has magnified ethnic enmities, entrenched political deadlock and impeded the country’s progress toward joining the European Union.

At the root of the crisis is the failure of lawmakers to agree on a new law on how to determine the 13-digit identification numbers assigned to every citizen. The previous law lapsed in February, leaving all babies born since then without the identification documents necessary to travel abroad or see a doctor.

Bosnian Serbs have demanded that the identification cards have a specific number specifying their region, while the country’s Muslim Bosniak and Croat legislators want the identification numbers to be random to avoid further stoking of ethnic division.

In Liverpool Plains Shire Council v Vella [2013] NSLEC 54 the Court states

[5] ... Mr Vella did not appear at the hearing of today's notice of motion. This is presumably because, as a member of the "Independent Religious State - Free State of Australia" ("FSA"), a purportedly sovereign religious state established within the Commonwealth of Australia, Mr Vella does not recognise the jurisdiction of this Court. This has been his position to date in the proceedings. 

[6] Unsurprisingly, the council has therefore had difficulty serving Mr Vella. Orders for substituted service were accordingly made by Court on 12 April 2013. Previously, at a directions hearing before Sheahan J on 22 March 2013, affidavits of service were provided to the Court demonstrating that Mr Vella had been served with the initiating summons and supporting affidavits. 

[7] The council relied on the following affidavits in order to demonstrate that Mr Vella was aware of the hearing of the application today: (a) the affidavit of service of Mr Nathan Hennessey, sworn 8 April 2013; (b) the affidavit of service of Ms Belinda Morris, affirmed 15 April 2013; (c) the affidavit of Mr Mark Brothers, affirmed 19 April 2013; and (d) the affidavit of Mr Michael Urquhart, sworn 10 April 2013. 

[8] Mr Urquhart, the Director of Corporate Services at the council, also gave oral evidence to the Court that on 19 April 2013, he was called to the front counter at the council's offices where he was handed two envelopes containing documents that had been physically handed by Mr Vella to the council's customer service officer, Ms Dale Lyon. Ms Lyon has had previous dealings with Mr Vella and is aware of his identity. The envelopes appear to have been, according to the evidence of Mr Urquhart, opened and then re-sealed. 

[9] The envelopes contained the affidavit of Mr Michael Urquhart sworn 10 April 2013, the affidavit Mr Mark Brothers sworn 9 April 2013, the amended notice of motion seeking injunctive relief and the order for substituted service. The amended notice of motion expressly states in handwriting on the front page that "this motion is listed at 9.00 am on 22 April 2013". 

[10] Based on the evidence contained in the affidavits referred to above and Mr Urquhart's oral evidence, I am satisfied that Mr Vella was aware of today's hearing. 

[11] However, when the matter was called on for hearing at 11.00am, no one appeared for Mr Vella. The matter was called three times outside the courtroom. The matter therefore proceeded in his absence. 

The Interlocutory Relief should be granted 

12The council relied on the following affidavits in support of its application for injunctive relief, which I have read and considered: (a) affidavit of Ms Donna Ausling, filed 15 March 2013; (b) the affidavit of Mr Stephen Ryder, filed 15 March 2013; (c) the affidavit of Mr Terrence Robinson, sworn 13 March 2013; (d) the affidavits of Mr Mark Brothers, sworn 9 and 19 April 2013; and (e) the affidavit of Mr Urquhart, sworn 10 April 2013. 

[13] Ms Ausling is the Manager-Planning and Development with the council. On 14 November 2012 she prepared a planning report in relation to the property. That report indicates that the land upon which the development is occurring is zoned R1 General Residential within the Liverpool Plains Local Environmental Plan 2011 ("the LEP"). In her opinion, the works that have been undertaken on the property consist of "alterations and additions to an existing dwelling" within the terms of the LEP. The works would be permitted with development consent within the Zone. Clause 2.7 of the LEP mandates that demolition works also require development consent. 

[14] Mr Ryder, the Compliance Officer of the council, undertook a number of drive-by inspections of the property. Mr Ryder attempted to enter onto the property to carry out an inspection of the building works but Mr Vella refused him entry and threatened to sue him for trespass. 

[15] As a consequence of these inspections, on 15 October 2012 a request to immediately cease all building work was served on Mr Vella by the council. This was followed up by a letter to similar effect on 2 November 2012, which attached a Notice of Intention to Issue an Order under s 121B of the Environmental Planning and Assessment Act 1979 ("the EPAA"). Also attached to Mr Ryder's affidavit were photographs showing the extent of the building works and their ongoing nature. Building works were observed to have been carried out as recently as 2 April 2013. ...

[18] The development works on the property include: (a) the addition of cladding and wall lining to an extension of a building at the rear of the property; (b) cladding added to the side of the building; (c) the removal of walls and windows at the front and side of the building; and (d) the addition of roof sheeting to the building. 

[19] It appears, at least from the affidavit evidence of Mr Urquhart, that Mr Vella claims that he is merely "the builder" and that the property in fact belongs to the "Church of Jesus Christ", and therefore, the council has sued the wrong entity. 

[20] However, the affidavit of Mr Robinson deposes to the fact that in late 2011, Ms Kathleen Eykamp sold the property to "Jo Vella". The solicitor acting for Ms Eykamp believed "Jo Vella" to be the same person as the respondent in these proceedings. Attached to the affidavit is a certificate of transfer which names the transferee as "Jo Vella". Settlement took place on 14 November 2011, at which Mr Vella attended personally.  ...

[25] There is nothing presently before the Court that suggests an arguable defence to the substantive proceedings is available to Mr Vella (see Shoalhaven City Council v Ellis [2011] NSWLEC 225). There is, therefore, a serious question to be tried.

Balance of Convenience  

[26] In my opinion, the balance of convenience favours, heavily, the granting of the injunction. First, the building and demolition works are not trivial, they are extensive. Second, the council deposed that it has serious concerns regarding the structural integrity of the building works. To date it has been unable to inspect those building works because Mr Vella has refused the council permission to enter upon the property. Third, given the resistance to date by Mr Vella to accept service, to participate in these proceedings, or to acknowledge, let alone to accede to, the council's requests to cease development on the property to date, I find that, absent granting the relief sought, the unlawful building works will continue unless he is ordered to cease development on the property. 

[27] An illustration of Mr Vella's attitude to the council and to the proceedings was contained in a four page document written by an individual describing himself as "John of the Vella Family" faxed to the Court on 21 March 2013. The document stated that:

6. I, John of the Vella Family say, the property known as 90 Dewhurst Street, Werris Creek 2341 Australia is lawfully registered and titled within the Land Register of the Independent Religious State - Free State Australia, and is no longer a legal title within the Land Register of the corporate State of New South Wales ... 

7. I, John of the Vella Family say, the property known as 90 Dewhurst Street, Werris Creek 2341 Australia is a lawful Estate housing the "Ministry of Jesus Christ the Redeemer" and a place for worship of the Lord Jesus Christ, the Lord of Lords and King of Kings. 

8. I, John of the Vella Family say, the property known as 90 Dewhurst Street, Werris Creek 2341 Australia is a lawful Estate within in the Jurisdiction of the Independent Religious State - Free State Australia, (Religious State). 

9. I, John of the Vella Family, a lawful citizen of Independent Religious State - Free State Australia, (Religious State) lawfully seceded from the corporate State of New South Wales, and the corrupted State of New South Wales. 

10. I, John of the Vella Family, a lawful citizen of Independent Religious State - Free State Australia, and the Independent Religious State, Free State Australia say, the said Administration prescribing itself, as the Land and Environment court of New South Wales is without power or jurisdiction to consider or interpret any section or sections of the Commonwealth of Australia Constitution Act 1990 (UK). 

11. I, John of the Vella Family, a lawful citizen of Independent Religious State - Free State Australia, and the Independent Religious State, Free State Australia say, the said Administration prescribing itself as the Land and Environment court of New South Wales is without power or jurisdiction to interpret s116 of the Commonwealth of Australia Constitution Act 1990 (UK). 

12. I, John of the Vella Family, a lawful citizen of Independent Religious State - Free State Australia, and the Independent Religious State, Free State Australia say, the said Administration prescribing itself, as the Land and Environment court of New South Wales is without power or jurisdiction to adjudicate over maters attaining to Religion, Religious belief, Religious standing, or Religious interpretation, that being a consequence only possible to individuals or assembles for obedience and way of life that which excels far beyond that of any Governance or alleged power.

[28] I have no hesitation in finding that "John of the Vella Family" is the same person as the respondent in these proceedings.

ALRC Copyright & the Digital Economy discussion paper

The Australian Law Reform Commission has released its 338 page Copyright & the Digital Economy discussion paper regarding copyright reform, which features a set of proposals and questions as follows -

The Case for Fair Use in Australia

Proposal 4–1 The Copyright Act 1968 (Cth) should provide a broad, flexible exception for fair use.

Proposal 4–2 The new fair use exception should contain:

a) an express statement that a fair use of copyright material does not infringe copyright;

b) a non-exhaustive list of the factors to be considered in determining whether the use is a fair use (‘the fairness factors’); and

c) a non-exhaustive list of illustrative uses or purposes that may qualify as fair uses (‘the illustrative purposes’).

Proposal 4–3 The non-exhaustive list of fairness factors should be:

a) the purpose and character of the use;

b) the nature of the copyright material used;

c) in a case where part only of the copyright material is used—the amount and substantiality of the part used, considered in relation to the whole of the copyright material; and

d) the effect of the use upon the potential market for, or value of, the copyright material.

Proposal 4–4 The non-exhaustive list of illustrative purposes should include the following:

a) research or study;

b) criticism or review;

c) parody or satire;

d) reporting news;

e) non-consumptive;

f) private and domestic;

g) quotation;

h) education; and

i) public administration.

Question 4–1 What additional uses or purposes, if any, should be included in the list of illustrative purposes in the fair use exception?

Question 4–2 If fair use is enacted, the ALRC proposes that a range of specific exceptions be repealed. What other exceptions should be repealed if fair use is enacted?

Statutory Licences

Proposal 6–1 The statutory licensing schemes in pts VA, VB and VII div 2 of the Copyright Act should be repealed. Licences for the use of copyright material by governments, educational institutions, and institutions assisting persons with a print disability, should instead be negotiated voluntarily.

Question 6–1 If the statutory licences are repealed, should the Copyright Act be amended to provide for certain free use exceptions for governments and educational institutions that only operate where the use cannot be licensed, and if so, how?

Fair Dealing

Proposal 7–1 The fair use exception should be applied when determining whether a use for the purpose of research or study; criticism or review; parody or satire; reporting news; or professional advice infringes copyright. ‘Research or study’, ‘criticism or review’, ‘parody or satire’, and ‘reporting news’ should be illustrative purposes in the fair use exception.

Proposal 7–2 The Copyright Act should be amended to repeal the following exceptions:

a) ss 40(1), 103C(1)—fair dealing for research or study;

b) ss 41, 103A—fair dealing for criticism or review;

c) ss 41A, 103AA—fair dealing for parody or satire;

d) ss 42, 103B—fair dealing for reporting news;

e) s 43(2)—fair dealing for a legal practitioner, registered patent attorney or registered trade marks attorney giving professional advice; and

f) ss 104(b) and (c)—professional advice exceptions.

Proposal 7–3 If fair use is not enacted, the exceptions for the purpose of professional legal advice in ss 43(2), 104(b) and (c) of the Copyright Act should be repealed and the Copyright Act should provide for new fair dealing exceptions ‘for the purpose of professional advice by a legal practitioner, registered patent attorney or registered trade marks attorney’ for both works and subject-matter other than works.

Proposal 7–4 If fair use is not enacted, the existing fair dealing exceptions, and the new fair dealing exceptions proposed in this Discussion Paper, should all provide that the fairness factors must be considered in determining whether copyright is infringed.

Non-consumptive Use

Proposal 8–1 The fair use exception should be applied when determining whether uses of copyright material for the purposes of caching, indexing or data and text mining infringes copyright. ‘Non-consumptive use’ should be an illustrative purpose in the fair use exception.

Proposal 8–2 If fair use is enacted, the following exceptions in the Copyright Act should be repealed:

(a) s 43A—temporary reproductions made in the course of communication;

(b) s 111A—temporary copying made in the course of communication;

(c) s 43B—temporary reproductions of works as part of a technical process of use;

(d) s 111B—temporary copying of subject-matter as a part of a technical process of use; and

(e) s 200AAA—proxy web caching by educational institutions.

Proposal 8–3 If fair use is not enacted, the Copyright Act should be amended to provide a new fair dealing exception for ‘non-consumptive’ use. This should also require the fairness factors to be considered. The Copyright Act should define a ‘non-consumptive’ use as a use of copyright material that does not directly trade on the underlying creative and expressive purpose of the material.

Private and domestic use

Proposal 9–1 The fair use exception should be applied when determining whether a private and domestic use infringes copyright. ‘Private and domestic use’ should be an illustrative purpose in the fair use exception.

Proposal 9–2 If fair use is not enacted, the Copyright Act should provide for a new fair dealing exception for private and domestic purposes. This should also require the fairness factors to be considered.

Proposal 9–3 The exceptions for format shifting and time shifting in ss 43C, 47J, 109A, 110AA and 111 of the Copyright Act should be repealed.

Proposal 9–4 The fair use exception should be applied when determining whether a use of copyright material for the purpose of back-up and data recovery infringes copyright.

Proposal 9–5 The exception for backing-up computer programs in s 47J of the Copyright Act should be repealed.

Transformative Use and Quotation

Proposal 10–1 The Copyright Act should not provide for any new ‘transformative use’ exception. The fair use exception should be applied when determining whether a ‘transformative use’ infringes copyright.

Proposal 10–2 The fair use exception should be applied when determining whether quotation infringes copyright. ‘Quotation’ should be an illustrative purpose in the fair use exception.

Proposal 10–3 If fair use is not enacted, the Copyright Act should provide for a new fair dealing exception for quotation. This should also require the fairness factors to be considered.

Libraries, Archives and Digitisation

Proposal 11–1 If fair use is enacted, s 200AB of the Copyright Act should be repealed.

Proposal 11–2 The fair use exception should be applied when determining whether uses of copyright material not covered by specific libraries and archives exceptions infringe copyright.

Proposal 11–3 If fair use is not enacted, the Copyright Act should be amended to provide for a new fair dealing exception for libraries and archives. This should also require the fairness factors to be considered.

Question 11–1 Should voluntary extended collective licensing be facilitated to deal with mass digitisation projects by libraries, museums and archives? How can the Copyright Act be amended to facilitate voluntary extended collective licensing?

Proposal 11–4 The Copyright Act should be amended to provide a new exception that permits libraries and archives to make copies of copyright material, whether published or unpublished, for the purpose of preservation. The exception should not limit the number or format of copies that may be made.

Proposal 11–5 If the new preservation copying exception is enacted, the following sections of the Copyright Act should be repealed:

(a) s 51A—reproducing and communicating works for preservation and other purposes;

(b) s 51B—making preservation copies of significant works held in key cultural institutions’ collections;

(c) s 110B—copying and communicating sound recordings and cinematograph films for preservation and other purposes;

(d) s 110BA—making preservation copies of significant recordings and films in key cultural institutions’ collections; and

(e) s 112AA—making preservation copies of significant published editions in key cultural institutions’ collections.

Proposal 11–6 Any new preservation copying exception should contain a requirement that it does not apply to copyright material that can be commercially obtained within a reasonable time at an ordinary commercial price.

Proposal 11–7 Section 49 of the Copyright Act should be amended to provide that, where a library or archive supplies copyright material in an electronic format in response to user requests for the purposes of research or study, the library or archive must take measures to:

(a) prevent the user from further communicating the work;

(b) ensure that the work cannot be altered; and

(c) limit the time during which the copy of the work can be accessed.

Orphan Works

Proposal 12–1 The fair use exception should be applied when determining whether a use of an ‘orphan work’ infringes copyright.

Proposal 12–2 The Copyright Act should be amended to limit the remedies available in an action for infringement of copyright, where it is established that, at the time of the infringement:

(a) a ‘reasonably diligent search’ for the rights holder had been conducted and the rights holder had not been found; and

(b) as far as reasonably possible, the work was clearly attributed to the author.

Proposal 12–3 The Copyright Act should provide that, in determining whether a ‘reasonably diligent search’ was conducted, regard may be had, among other things, to:

(a) how and by whom the search was conducted;

(b) the search technologies, databases and registers available at the time; and

(c) any guidelines or industry practices about conducting diligent searches available at the time.

Educational Use

Proposal 13–1 The fair use exception should be applied when determining whether an educational use infringes copyright. ‘Education’ should be an illustrative purpose in the fair use exception.

Proposal 13–2 If fair use is not enacted, the Copyright Act should provide for a new exception for fair dealing for education. This would also require the fairness factors to be considered.

Proposal 13–3 The exceptions for education in ss 28, 44, 200, 200AAA and 200AB of the Copyright Act should be repealed.

Government Use

Proposal 14–1 The fair use exception should be applied when determining whether a government use infringes copyright. ‘Public administration’ should be an illustrative purpose in the fair use exception.

Proposal 14–2 If fair use is not enacted, the Copyright Act should provide for a new exception for fair dealing for public administration. This should also require the fairness factors to be considered.

Proposal 14–3 The following exceptions in the Copyright Act should be repealed:

(a) ss 43(1), 104—judicial proceedings; and

(b) ss 48A, 104A—copying for members of Parliament.

Retransmission of Free-to-air Broadcasts

Proposal 15–1 Option 1: The exception to broadcast copyright provided by the Broadcasting Services Act 1992 (Cth), and applying to the retransmission of free-to-air broadcasts; and the statutory licensing scheme applying to the retransmission of free-to-air broadcasts in pt VC of the Copyright Act, should be repealed. This would effectively leave the extent to which retransmission occurs entirely to negotiation between the parties—broadcasters, retransmitters and underlying copyright holders. Option 2: The exception to broadcast copyright provided by the Broadcasting Services Act, and applying to the retransmission of free-to-air broadcasts, should be repealed and replaced with a statutory licence.

Proposal 15–2 If Option 2 is enacted, or the existing retransmission scheme is retained, retransmission ‘over the internet’ should no longer be excluded from the statutory licensing scheme applying to the retransmission of free-to-air broadcasts. The internet exclusion contained in s 135ZZJA of the Copyright Act should be repealed and the retransmission scheme amended to apply to retransmission by any technique, subject to geographical limits on reception.

Question 15–1 If the internet exclusion contained in s 135ZZJA of the Copyright Act is repealed, what consequential amendments to pt VC, or other provisions of the Copyright Act, would be required to ensure the proper operation of the retransmission scheme?

Proposal 15–3 If it is retained, the scope and application of the internet exclusion contained in s 135ZZJA of the Copyright Act should be clarified.

Question 15–2 How should the scope and application of the internet exclusion contained in s 135ZZJA of the Copyright Act be clarified and, in particular, its application to internet protocol television?

Broadcasting

Proposal 16–1 The Copyright Act should be amended to ensure that the following exceptions (the ‘broadcast exceptions’), to the extent these exceptions are retained, also apply to the transmission of television or radio programs using the internet:

(a) s 45—broadcast of extracts of works;

(b) ss 47, 70 and 107—reproduction for broadcasting;

(c) s 47A—sound broadcasting by holders of a print disability radio licence; (d) s 67—incidental broadcast of artistic works;

(e) s 109—broadcasting of sound recordings;

(f) s 135ZT—broadcasts for persons with an intellectual disability;

(g) s 199—reception of broadcasts;

(h) s 200—use of broadcasts for educational purposes; and

(i) pt VA—copying of broadcasts by educational institutions.

Question 16–1 How should such amendments be framed, generally, or in relation to specific broadcast exceptions? For example, should:

(a) the scope of the broadcast exceptions be extended only to the internet equivalent of television and radio programs?

(b) ‘on demand’ programs continue to be excluded from the scope of the broadcast exceptions, or only in the case of some exceptions?

(c) the scope of some broadcast exceptions be extended only to content made available by free-to-air broadcasters using the internet?

Proposal 16–2 If fair use is enacted, the broadcast exceptions in ss 45 and 67 of the Copyright Act should be repealed.

Question 16–2 Section 152 of the Copyright Act provides caps on the remuneration that may be ordered by the Copyright Tribunal for the radio broadcasting of published sound recordings. Should the Copyright Act be amended to repeal the 1% under s 152(8) or the ABC cap under s 152(11), or both?

Question 16–3 Should the compulsory licensing scheme for the broadcasting of published sound recordings in s 109 of the Copyright Act be repealed and licences negotiated voluntarily?

Contracting Out

Proposal 17–1 The Copyright Act should provide that an agreement, or a provision of an agreement, that excludes or limits, or has the effect of excluding or limiting, the operation of certain copyright exceptions has no effect. These limitations on contracting out should apply to the exceptions for libraries and archives; and the fair use or fair dealing exceptions, to the extent these exceptions apply to the use of material for research or study, criticism or review, parody or satire, reporting news, or quotation.

ALRC Disability Inquiry

Commonwealth Attorney-General Mark Dreyfus QC has asked the Australian Law Reform Commission to inquire into how to reduce legal barriers to people with disabilities.

I want to make sure that existing Commonwealth laws and legal frameworks do not create barriers to people with disability exercising their rights and legal capacity.

Most of us take for granted the independent decisions we make about our lives. People with disability deserve the same opportunity.

This inquiry is about maximising choice and autonomy for Australians with disability.

Minister for Disability Reform Jenny Macklin said that "people with disability are entitled to the dignity that comes from being able to make choices over their own lives".

Ensuring that people with disability have access to the same rights and opportunities as Australians without disability is a hallmark of a just society.

As we celebrate the twentieth anniversary of the Disability Discrimination Act, it is fitting that we consider whether our laws are adequately supporting people with disability.

The announcement of this inquiry coincides with the upcoming launch of DisabilityCare Australia, the national disability insurance scheme, a significant reform that will transform the way people with disability are supported and put choice and control in the hands of people with disability.” 

The Draft Terms of Reference are

having regard to:

• the United Nations Convention on the Rights of Persons with Disabilities, to which Australia is a party and which sets out:

- rights for people with disability to recognition before the law, to legal capacity and to access to justice on an equal basis with others, and

- a general principle of respect for inherent dignity, individual autonomy, including freedom to make one’s own choices, and independence of persons, and

• Australian Governments’ commitment to the National Disability Strategy, which includes ‘rights protection, justice and legislation’ as a priority area for action.

the Australian Law Reform Commission [is to cover]

• the examination of laws and legal frameworks within the Commonwealth jurisdiction that deny or diminish the equal recognition of people with disability as persons before the law and their ability to exercise legal capacity, and

• what if any changes could be made to Commonwealth laws and legal frameworks to address these matters.

For the purposes of the inquiry, equal recognition before the law and legal capacity are to be understood as they are used in the Convention on the Rights of Persons with Disabilities: including to refer to the rights of people with disability to make decisions and act on their own behalf.

In undertaking this reference, the ALRC should consider all relevant Commonwealth laws and legal frameworks that either directly, or indirectly, impact on people with disability’s recognition before the law and exercise of legal capacity on an equal basis with others, including in the areas of:

• access to justice and legal assistance programs

• aged care

• anti-discrimination law

• board participation

• contracts

• disability services

• electoral matters

• employment

• federal offences

• financial services

• giving evidence

• holding public office

• identification documents

• jury service

• marriage, partnerships, intimate relationships and parenthood

• medical treatment

• privacy law

• restrictive practices

• social security

• superannuation, and

• supported and substituted decision making.

The review should also have particular regard for the ways Commonwealth laws and legal frameworks affect children, Indigenous people, older people and women with disability. The purpose of this review is to ensure that Commonwealth laws and legal frameworks are responsive to the needs of people with disability and to advance, promote and respect their rights.

In considering what if any changes to Commonwealth law could be made, the ALRC should consider:

• how decision making by people with impairment that affects their decision making can be validly and effectively supported

• presumptions about a person’s ability to exercise legal capacity and whether these discriminate against people with disability

• use of appropriate communication to allow people with disability to exercise legal capacity, including alternative modes, means and formats of communication such as Easy English, sign language, Braille, and augmentative communications technology

• how a person’s ability to independently make decisions is assessed, and mechanisms to review these decisions

• legal or other recognition of supports for people with disability to make decisions for themselves (whether family/friends or paid supports) – both in relation to formal decisions and informal decisions

• safeguards – are the powers and duties of decision making supporters and substituted decision makers effective, appropriate and consistent with Australia’s international obligations

• recognition of where a person’s need for supports to exercise legal capacity is evolving or fluctuating (where a person with disability may be able to independently make decisions at some times but not others or where their ability to make decisions may grow with time), and

• how maximising individual autonomy and independence could be modelled in Commonwealth laws and legal frameworks.

In conducting this inquiry, the ALRC should also have regard to:

• initiatives under the National Disability Strategy, including the National Disability Insurance Scheme and other services available to people with disability, and how these should/could interact with the law to increase the realisation of people with disability’s recognition before the law and legal capacity

• how Commonwealth laws and legal frameworks interact with State and Territory laws in the areas under review, contemporaneous developments and best practice examples within the States and Territories, and

• international laws and legal frameworks that aim to ensure people with disability are accorded equal recognition before the law and legal capacity on an equal basis with others, including work to implement the Convention on the Rights of Persons with Disability in the United Kingdom and Canada.

In undertaking this reference, the ALRC should identify and consult with relevant stakeholders including people with disability and their representative, advocacy and legal organisations, the families and carers of people with disability, relevant Government departments and agencies, the Australian Human Rights Commission, and other key non-government stakeholders.

ALRC Native Title Inquiry

Commonwealth Attorney-General Mark Dreyfus QC has released draft terms of reference for the Australian Law Reform Commission (ALRC)  inquiry into Native Title law.

The Attorney-General’s media release states that

The Native Title Act turns twenty this year. The time has come to consider how to improve native title law and encourage faster, simpler resolution of native title claims for all parties. We must make sure that the law helps to unlock the economic potential of native title for Indigenous Australians. The draft terms of reference focus on proving connection to land and waters and authorisation, the laws which establish who can negotiate in particular circumstances. These are complex issues, which need detailed analysis and broad community consensus. 

 The Minister for Indigenous Affair indicates that the Government will "consult widely on the terms of reference and was open to adding new key issues to the Inquiry". "We want to hear from Indigenous peoples, representative bodies, farmers, miners, pastoralists and environmental groups about the issues they want considered by the Australian Law Reform Commission.”

The ALRC is to inquire into -

the native title system in relation to two specific areas, as follows:

• connection requirements relating to the recognition and scope of native title rights and interests, and

• the identification of barriers, if any, imposed by the Act’s authorisation and joinder provisions to claimants’, and potential claimants’:

o access to justice, and

o access to and protection of native title rights and benefits.

The Commission is consider what, if any, changes could be made to improve the operation of the native title system.It is to consider:

 (a) the Act and any other relevant legislation

(b) any relevant case law

(c) previous reports, reviews and inquiries regarding the native title system and the practical implementation of recommendations and findings

(d) opportunities presented by native title processes for Indigenous communities, through a range of native title and native title related outcomes (such as sustainable Indigenous economic development, heritage protection, employment and housing opportunities), and

(e) any other relevant matter concerning the operation of the native title system. 

In undertaking the reference, the Commission is to identify and consult with key stakeholders, including:

(a) relevant Commonwealth, State, Territory and local Governments and agencies

(b) the Federal Court of Australia and the National Native Title Tribunal

(c) Indigenous groups, Native Title Representative Bodies and Prescribed Bodies Corporate

(d) industry, including the agriculture, pastoral, fisheries, minerals and energy resources industries, and

(e) any other relevant groups or individuals.

Compulsory Licensing of Patents

The Productivity Commission has released its report on the Compulsory Licensing of Patents.

The Commission comments that

Inquiry participants had differing views on why Australia’s compulsory licensing provisions have been rarely used. In essence, three different reasons were proposed, and only one of these provides a case for reform.

• The compulsory licensing provisions are such an effective deterrent against refusals to license on reasonable terms that they almost never need to be invoked by a potential licensee. 

• Compulsory licensing is a safeguard that is only needed in exceptional circumstances, since it is generally in a patent owner’s interest to license. 

• The process for granting a compulsory licence is so costly and time consuming that a potential licensee rarely finds it a viable option.

It is almost impossible to ascertain whether the compulsory licensing provisions have been a deterrent against refusals to license, given that commercial negotiations are rarely made public. That said, the Law Council of Australia submitted three examples to support the deterrence effect, without naming the parties. 

The view that compulsory licensing is a safeguard only to be invoked in exceptional circumstances is consistent with the previously mentioned evidence, which suggests that relatively few cases arise where a compulsory licence is warranted. 

It is widely recognised that obtaining a compulsory licence would be costly and time consuming. This is largely because an application has to be made to the Federal Court for an order requiring the patent owner to grant a compulsory licence. The primary expense would be the legal costs to prepare and present a case to the court, rather than any fees charged by the court itself. Inquiry participants estimated that the cost could range from roughly $100 000 for a relatively straightforward application to more than $1 million for a pharmaceutical patent that is vigorously contested by the patent owner. 

Federal Court statistics indicate that it is not uncommon for matters to take longer than 12 months to finalise . However, it should also be recognised that the Federal Court has taken steps to employ various case management strategies to improve the efficiency of its processes, and so the high cost and time involved in resolving matters would, at least in part, reflect the complexity of cases that come before it.

The Commission goes on to comment that

There is a clear case to strengthen the criteria for granting a compulsory licence, and to remove overlap and inconsistency across different pieces of legislation. As noted above, there are essentially two grounds for a compulsory licence — the reasonable requirements of the public have not been satisfied, or the patent has been used to engage in unlawful anticompetitive behaviour.

The Patents Act defines the reasonable requirements of the public in a way that focuses on promoting domestic trades and industries. This could potentially lead to a compulsory licence being issued when it is not in the interests of the community as a whole. The Commission has, therefore, proposed that a public interest test be used instead. The intention is to provide an access regime for cases where greater use of a patented invention would deliver a substantial net benefit to the community, and this opportunity arises for reasons other than unlawful anticompetitive conduct.

There should be general pricing principles that explicitly recognise the balance between providing access to inventions and ensuring patent owners receive a return commensurate with the commercial and regulatory risks they face.

Introducing an objects clause into the Patents Act could also assist by clarifying the context for compulsory licensing and the considerations that should guide a court. ... The Patents Act defines the other ground for a compulsory licence — anticompetitive behaviour — as a contravention of Part IV of the Competition and Consumer Act 2010 (Cth) in connection with a patent. This creates overlap and inconsistency because different remedies against such behaviour are also available in the Competition and Consumer Act itself (including effectively a compulsory licence). Moreover, there are differences between the two Acts in the rights afforded to prospective applicants and the potential litigation avenues and process. It is proposed that the competition provisions be taken out of the Patents Act, and that the Competition and Consumer Act be amended to explicitly state that compulsory licences are available as a remedy for breaches of Part IV. 

Some aspects of IP are exempted from certain provisions of Part IV. The rationale for the exemption is unclear. It has been scrutinised in past reviews, including by the National Competition Council, which effectively recommended removing it. The Australian Competition and Consumer Commission (ACCC) has also called for its removal on the grounds that IP rights should be treated the same as other property. The Productivity Commission is mindful that the exemption addresses a range of IP issues, but with respect to access to patents sees no reason why it should not be repealed.

The Commission's recommendations and findings are -

Compulsory licensing provisions 

F 6.1 While the cost and timeliness of the compulsory licensing process could be a barrier for its use by some parties, there are no clear alternatives that would significantly reduce its cost without also reducing the quality of the outcomes and increasing the scope for appeals. 

F 6.2 The Australian Government has agreed to introduce a general objects clause recommended by the Advisory Council on Intellectual Property into the Patents Act 1990 (Cth). This could assist in clarifying the context for compulsory licensing and the considerations that should guide a court. 

R 6.1 The Australian Government should seek to remove s. 133(2)(b) from the Patents Act 1990 (Cth), so that a compulsory licence order based on restrictive trade practices of the patent holder is only available under the Competition and Consumer Act 2010 (Cth). The remedy provisions in the Competition & Consumer Act should be amended to explicitly recognise compulsory licence orders to exploit a patented invention as a remedy under the Act. The new remedy provision should specify that an order must: • not give the licensee, or a person authorised by the licensee, the exclusive right to work the patented invention • be assignable only in connection with an enterprise or goodwill in connection with which the licence is used. The new provision should also contain a clause specifying the basis for determining remuneration, which is identical to the corresponding clause in the Patents Act. 

F 6.3 Section 51(3) of the Competition and Consumer Act 2010 (Cth) — which exempts certain types of conduct involving intellectual property from some provisions of the Act — is unlikely to promote efficient outcomes with respect to access to patented inventions. The Commission sees no reason why the exemption should continue to apply to patents, but any changes to s.51(3) will need to be based on a consideration of the implications for all types of intellectual property, including those beyond this inquiry’s terms of reference. 

F 6.4 The current language in s. 135 of the Patents Act 1990 (Cth), which conflates the reasonable requirements of the public with the interests of Australian industry, is inconsistent with promoting community-wide welfare. 

R 6.2 The Australian Government should seek to amend the Patents Act 1990 (Cth) to replace the ‘reasonable requirements of the public’ test for a compulsory licence with a new public interest test. The new test should specify that a compulsory licence to exploit the patented invention would be available if the following conditions are met:

• Australian demand for a product or service is not being met on reasonable terms, and access to the patented invention is essential for meeting this demand. 

• The applicant has tried for a reasonable period, but without success, to obtain access from the patentee on reasonable terms and conditions. 

• There is a substantial public interest in providing access to the applicant, having regard to: –  benefits to the community from meeting the relevant unmet demand commercial costs and benefits to the patent holder and licensee from granting access to the patented invention other impacts on community wellbeing, including those resulting from greater competition and from the overall effect on innovation.

The new provisions should require the Federal Court to set the terms of the licence, including — where the parties cannot reach agreement — any remuneration, consistent with the public interest, having regard to the rights of:  the patentee to obtain a return on investment commensurate with the regulatory and commercial risks involved the public to the efficient exploitation of the invention. 

R 6.3 The Australian Government should seek to repeal s. 136 of the Patents Act 1990 (Cth). Current and future international treaty obligations should be incorporated directly into the Patents Act or its subordinate legislation. 

Crown use provisions 

R 7.1 The Australian Government should seek to amend s. 163 of the Patents Act 1990 (Cth) to make it clear that Crown use can be invoked for the provision of a service that the Australian, State and/or Territory Governments have the primary responsibility for providing or funding. 

R 7.2 The Australian Government should seek to amend the Patents Act 1990 (Cth) to require:

• the Crown to attempt to negotiate use of the patented invention prior to invoking Crown use 

• the Crown to provide the patentee with a statement of reasons no less than 14 days before such use occurs 

• Crown use to be approved by a Minister (the relevant Federal Minister or State Attorneys-General) 

• that in instances of Crown use, the patentee is entitled to remuneration determined on the same basis as that for a compulsory licence. 

The first two requirements should be able to be waived in emergencies. However, in all cases patentees should be provided with immediate notice that their patents have been used, and a statement of reasons as soon as practical thereafter. 

Awareness raising 

R 10.1 IP Australia and the Australian Competition and Consumer Commission (ACCC) should jointly develop a plain English guide on the compulsory licensing provisions. The guide should be available on both the IP Australia and ACCC websites.

Age, Employment and Discrimination

The Australian Law Reform Commission report Access All Ages — Older Workers and Commonwealth Laws (ALRC 120) features 36 recommendations.

The recommendations embody six interrelated principles:

• participation, 
• independence, 
• self-agency, 
• system stability, 
• system coherence, and 
• fairness: 

In discussing Participation the ALRC comments that

all Australians should feel valued and have the opportunity to participate fully in the life of our society. This reflects the Australian Government’s ‘Social Inclusion Agenda’.

Older persons should have independence, ie the ability to make choices about the form of participation they wish to make, including the capacity to determine when and at what pace withdrawal from paid employment takes place. Independence also involves the ability to make genuine choices between participation in paid work, unpaid work, or some combination of both.

The ALRC notes that  an individual should have the right to make decisions about matters affecting him or her. That principle of self-agency underpins the idea of ‘independence’ and of ‘participation’. "Like the principle of independence, self-agency also encompasses choice and the importance of being treated with dignity and respect, as reflected in the National Statement on Social Inclusion." In relation to System stability the ALRC indicates that

laws and systems that are complex should remain stable and predictable. This is particularly relevant in areas such as superannuation. The Super System Review Panel emphasised that, because superannuation is a large and complex system, with ‘an increasingly important social and macroeconomic dimension’, rule changes ‘should be made sparingly and in a way that engenders member confidence’.

The notes that ‘coherence’ and ‘fairness’ "may be seen as aspects of a stable system, but also go further" -

They concern how the system operates in terms of impact on those affected and more broadly within the Australian community. System coherence—systems should be consistent, simple and transparent for individuals. This was a priority identified by the review of Australia’s tax system, chaired by Dr Ken Henry AC, in its review of the retirement income system. Complexity may cause disengagement in paid work. Lack of accessible information is another aspect of system coherence and an element of complexity, leading to poor understanding of rules and entitlements. Fairness—national resources should be distributed fairly and responsibility should be balanced between individuals and government. Fairness can be a consequence of coherence, consistency and the stability of the relevant systems involved. A further aspect is fairness between generations—that is, ‘intergenerational equity’. Issues important to intergenerational equity include the management of public debt and the funding of pension schemes. Fairness also encompasses ensuring basic rights and freedoms are enjoyed by older persons, and that there exists equality of opportunity in participation in paid and other productive work.

The specific recommendations are -

National Mature Age Workforce Participation Plan 

Recommendation 3–1 The Australian Government should develop a National Mature Age Workforce Participation Plan. 

Recruitment and Employment 

R 4–1 In 2013, the Recruitment and Consulting Services Association of Australia and New Zealand is conducting a review of its Code of Conduct. The review should consider ways in which the Code could emphasise: (a) the importance of client diversity, including mature age job seekers; (b) constructive engagement with mature age job seekers; and (c) obligations under age-related anti-discrimination and industrial relations legislation. 

R 4–2 The Australian Human Resources Institute should review its Code of Ethics and Professional Conduct to consider ways in which the Code could emphasise: (a) the importance of client diversity, including mature age job seekers; (b) constructive engagement with mature age job seekers; and (c) obligations under age-related anti-discrimination and industrial relations legislation. 

R 4–3 The Australian Human Resources Institute and the Recruitment and Consulting Services Association of Australia and New Zealand should: (a) develop and provide regular, consistent and targeted education and training for recruitment consultants; and (b) develop a range of guidance material to assist recruitment agencies and consultants to engage constructively with, and recruit, mature age job seekers. 

R 4–4 The Australian Human Resources Institute and the Recruitment and Consulting Services Association of Australia and New Zealand should promote and recognise best practice in the recruitment of mature age workers, for example through their annual workplace awards. 

R 4–5 Section 65 of the Fair Work Act 2009 (Cth) should be amended to extend the right to request flexible working arrangements to all employees who have caring responsibilities.   

R 4–6 The Fair Work Ombudsman (FWO) has developed material relevant to negotiating and implementing flexible working arrangements. The FWO should amend such material to include information for mature age workers, in consultation with unions, employer organisations and seniors organisations. 

R 4–7 Section 117(3)(b) of the Fair Work Act 2009 (Cth) provides that if an employee is over 45 years of age and has completed at least two years of continuous service with the employer, then the minimum period of notice for termination is increased by one week. In the course of amending the Fair Work Act 2009 (Cth), the Australian Government should consider increasing this period. 

R 4–8 From 2014, the Fair Work Commission will conduct the first four-yearly review of modern awards. The review should consider the inclusion or modification of terms to encourage workforce participation of mature age workers. 

R 4–9 The Australian Human Rights Commission and the Fair Work Commission, in consultation with the Australian Council of Human Rights Agencies, should develop guidance to: (a) clarify the interaction of the general protections provisions under the Fair Work Act 2009 (Cth) and Commonwealth, state and territory anti-discrimination legislation; and (b) outline potential avenues for redress under this legislation for mature age workers. 

R 4–10 Professional associations and industry representative groups are often responsible for developing or regulating licensing or re-qualification requirements. The Australian Human Rights Commission should facilitate the development of principles or guidelines to assist these bodies to review such requirements with a view to removing age-based restrictions in favour of capacity-based requirements. 

R 4–11 The Australian Government should initiate an independent inquiry to review the compulsory retirement ages of judicial and quasi-judicial appointments. 

R 4–12 The Australian Government should initiate an independent inquiry to review the compulsory retirement ages for military personnel. 

R 4–13 In conducting national campaigns and audits to ensure compliance with Commonwealth workplace laws, the Fair Work Ombudsman should ensure issues relating to mature age workers and job seekers are considered. 

Work Health & Safety and Workers’ Compensation 

R 5–1 Safe Work Australia and state and territory work health and safety regulators should consider health and safety issues that may affect mature age workers in implementing the Australian Work Health and Safety Strategy 2012–2022. 

R 5–2 Safe Work Australia should include work health and safety issues that may affect mature age workers in its research and evaluation strategy and work plans. 

R 5–3 Safe Work Australia and state and territory work health and safety regulators have developed guidance material to assist persons conducting a business or enterprise, workers, and the representatives of each to respond to health and safety issues of all workers. Such material should be reviewed to ensure it includes information about issues that may affect mature age workers, including information about: (a) statutory responsibilities and duties; (b) best practice work design and processes; (c) risk assessment; and (d) health and wellbeing. 

R 5–4 Safe Work Australia should work with state and territory health and safety regulators, unions and industry representatives to recognise best practice in work health and safety with respect to mature age workers in Commonwealth, state and territory work health and safety awards. 

R 5–5 The Safety, Rehabilitation & Compensation Act 1988 (Cth), the Military Rehabilitation & Compensation Act 2004 (Cth) and the Seafarers Rehabilitation & Compensation Act 1992 (Cth) should be amended to align the retirement provisions with the qualifying age for the Age Pension under the Social Security Act 1991 (Cth). 

R 5–6 The Seafarers Rehabilitation & Compensation Act 1992 (Cth) should be amended to provide that workers who are injured after two years prior to Age Pension age may receive incapacity payments for the same period as under the Safety, Rehabilitation & Compensation Act 1988 (Cth) and Military Rehabilitation & Compensation Act 2004 (Cth). 

R 5–7 If amended in line with Recommendations 5–5 and 5–6, the Safety, Rehabilitation & Compensation Act 1988 (Cth), the Military Rehabilitation & Compensation Act 2004 (Cth) and the Seafarers Rehabilitation & Compensation Act 1992 (Cth) will provide that workers and members injured after two years prior to Age Pension age are entitled to receive incapacity payments for a period of 104 weeks. This period should be extended. 

R 5–8 Safe Work Australia’s Strategic Issues Group for Workers’ Compensation should consider the definition of those categories of people covered by Commonwealth, state and territory workers’ compensation legislation to ensure volunteers are covered consistently. 

R 5–9 Sections 20, 21 and 21A of the Safety, Rehabilitation & Compensation Act 1988 (Cth) reduce the amount of compensation payable to an employee by reference to the amount of superannuation derived from the employer’s contributions and by a further 5 % of the employee’s Normal Weekly Earnings. These sections should be repealed. 

Insurance 

R 6–1 The Insurance Reform Advisory Group, or a similar body, should facilitate the development of a central information source to provide mature age persons with clear and simple information about relevant and available insurance products. 

R 6–2 The Australian Government should negotiate an agreement with insurers offering products in the Australian market requiring the publication of data upon which decisions about insurance offerings based on age are made. 

R 6–3 The Australian, state and territory governments should review insurance exceptions under Commonwealth, state and territory anti-discrimination legislation. 

R 6–4 The Australian Human Rights Commission should, in consultation with key insurance and superannuation bodies, develop guidance material about the application of any insurance exception as it applies to age under Commonwealth anti-discrimination legislation. 

R 6–5 The General Insurance Code of Practice and the Financial Services Council Code of Ethics and Code of Conduct should include diversity statements or objects clauses that encourage consideration of the needs and circumstances of a diverse range of consumers, including mature age persons. 

Social Security 

R 7–1 The Department of Human Services should evaluate the effectiveness of communication of information to mature age persons about social security. In its evaluation, it should consider the communication of information about: (a) eligibility for income support payments; (b) participation obligations for activity-tested payments, including possible exemptions from the activity test; (c) how to calculate the effect of taking up paid work on income support payments; and (d) incentives to take up paid work, for example through Working Credit, Work Bonus, the employment income nil rate period and retention of concession cards. 

R 7–2 To enhance the capacity of staff of Job Services Australia, Disability Employment Services and the Indigenous Employment Program to respond to the needs and circumstances of mature age job seekers, the Department of Education, Employment and Workplace Relations should ensure they are provided with information and training tools about: (a) age discrimination; (b) the effect that illness, disability and caring responsibilities may have on the capacity of mature age persons to work; (c) diversity among mature age job seekers; and (d) Australian Government programs targeted at mature age job seekers. 

R 7–3 The Guide to Social Security Law should be amended to provide that undertaking paid work for fewer than 30 hours per week will not trigger a review of qualification for Disability Support Pension. 

R 7–4 The Guide to Social Security Law should provide that a temporary cessation of constant care due to participation in paid employment, unpaid voluntary work, education or training that exceeds 25 hours per week: (a) does not result in automatic cancellation of Carer Payment; and (b) may, in some circumstances, be compatible with the constant care requirement for qualification for Carer Payment. 

R 7–5 The objective of Work Bonus is to provide an incentive for recipients of Age Pension and Veterans’ Age Service Pension to continue in paid employment. To ensure that Work Bonus continues to achieve its objective, the following amounts should be indexed: (a) the income concession amount under s 1073AA of the Social Security Act 1991 (Cth) and s 46AA of the Veterans’ Entitlements Act 1986 (Cth); and (b) the maximum unused concession balance under s 1073AB of the Social Security Act 1991 (Cth) and s 46AC of the Veterans’ Entitlements Act 1986 (Cth). 

Superannuation 

R 8–1 The Superannuation Industry (Supervision) Regulations 1994 (Cth) prohibit contributions by members aged 65–74 unless the member meets a work test. The work test requires the member to work for at least 40 hours over a 30-day period in the financial year. The Australian Government should review the work test and consider: (a) the policy objective of the work test; (b) whether that policy objective remains relevant; (c) how the work test contributes to achieving that policy objective; and (d) whether the work test in the Superannuation (Government Co-contribution for Low Income Earners) Act 2003 (Cth) should be consistent with the work test in the Superannuation Industry (Supervision) Regulations 1994 (Cth). 

R 8–2 Section 6(1)(e) of the Superannuation (Government Co-contribution for Low Income Earners) Act 2003 (Cth), which provides that government co-contributions are payable only for people aged under 71 years, should be repealed. 

R 8–3 The ‘Transition to Retirement’ rules were introduced into the Superannuation Industry (Supervision) Regulations 1994 (Cth) to encourage continued mature age workforce participation. The Australian Government should review these rules to determine what changes, if any, are required to ensure they meet their policy objective. The review should consider matters including: (a) the use of the rules in practice; (b) whether there is sufficient access to the scheme; (c) the relationship to the concessional superannuation contributions cap; and (d) comparable international schemes.