Australasian Performing Rights Association Ltd & Re: Australian Broadcasting Commission [1982] ACOPYT 2

CATCHWORDS Copyright -whether the Australian Broadcasting Commission is an instrumentality or agency of the Crown in right of the Commonwealth of Australia. Copyright Act 1968 (Cth.) ss152, 154, 183 Broadcasting and Television Act 1942 (Cth.) ss64, 70A, 77, 78, 78A COPYRIGHT TRIBUNAL REFERENCE UNDER S154 BY THE AUSTRALASIAN PERFORMING RIGHTS ASSOCIATION LIMITED RE AUSTRALIAN BROADCASTING COMMISSION LOCKHART J. AT SYDNEY FRIDAY 11 JUNE 1982

THE COPYRIGHT TRIBUNAL NO. 2 OF 1981 THE COPYRIGHT ACT 1968 REFERENCE UNDER SECTION 154 BY THE AUSTRALASIAN PERFORMING RIGHTS ASSOCIATION LIMIYTED RE AUSTRALIAN BROADCASTING COMMISSION REASONS FOR DECISION AT SYDNEY FRIDAY 11 JUNE 1982 LOCKHART J. Australasian Performing Right Association Limited ("APRA") formulated a licence scheme setting out the classes of cases in which it, as licensor, is willing to grant a licence to the Australian Broadcasting Commission ("the Commission") subject to certain conditions, including the payment of a licence fee calculated with reference to the Commission's gross operational expenditure incurred in the provision of radio and television broadcasting services. APRA referred the licence scheme to this Tribunal pursuant to s154 (1) of the Copyright Act 1968 and purported to bring the scheme into operation on 20 February 1981 pursuant to s154 (6) (a). The Commission has taken a preliminary objection to the Tribunal's jurisdiction to consider the schema and to make orders confirming or varying it under s154 (4), on a ground which involves the construction of s183 of the Copyright Actwhich, so far as relevant provides: - "183 (1) The copyright in a literary, dramatic, musical or artistic work or a published edition of such a work, or in a sound recording, cinematograph film, television broadcast or sound broadcast, is not infringed by the Commonwealth or a State, or by a person authorized in writing by the Commonwealth or a State, doing any acts comprised in the copyright if the acts are done for the services of the Commonwealth or State. … 5) Where an act comprised in a copyright has been done under sub‑section (1) of this section, the terms for the doing of the act are such terms as are, whether before or after the act is done, agreed between the Commonwealth or the State and the owner of the copyright or, in default of agreement, as are fixed by the Copyright Tribunal." The Commission contends that it is an agency or instrumentality of the Commonwealth of Australia under s183 of the Copyright Act; that, in broadcasting and televising works in which copyright subsists, it is doing so as the National Broadcasting Service and the National Television Service; that accordingly it does not infringe copyright; that s183 provides an exclusive code (except for s152 which applies specifically to the Commission) for the fixing by the Tribunal of the terms on which the Commission may do acts comprised in a copyright; and that in the result, the Tribunal has no jurisdiction under s 154. Although the question whether the Commission is an instrumentality or agency of the Commonwealth turns initially on the construction of s183, the answer rests essentially on the status of the Commission, which involves analysing the relevant provisions of the Broadcasting and Television Act 1942 for it is that Act which establishes the Commission to which I now turn. The Commission is established as a body corporate with perpetual succession and a common seal, which power to hold and dispose of real and personal property and to sue and be sued in its corporate name (s 30 (2)). It is empowered to acquire by lease or purchase any land buildings, easements or other property, rights or privileges which it thinks necessary for the purposes of the Broadcasting and Television Act and to sell, exchange, lease, dispose of, turn to account or otherwise deal with any property, rights, or privileges of the Commission (s 61). Section 31 (1) provides that the Commission shall consist of six Commissioners comprising, in respect of each State, a person ordinarily resident in that State; and not fewer than three nor more than five other Commissioners. At least two of the Commissioners must be women (s 31 (2)). The Commissioners are appointed by the Governor-General as part-time Commissioners (s 31 (3)); and the Governor-General appoints one Commissioner to be Chairman of the Commission and another Commissioner to be its Vice-Chairman (s 31(4)). The Commissioners are to be appointed for terms not exceeding five years and are eligible for reappointment; and they hold office subject to good behaviour (s 32). The Minister may grant leave of absence to any Commissioner upon such conditions as he thinks fit (s 36). The Governor-General may declare that the office of a Commissioner is vacant if - the Commissioner becomes permanently incapable of performing his duties; becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his creditors or makes an assignment of his remuneration for their benefit; being a Commissioner appointed by virtue of his being ordinarily resident in a particular State ceases to be ordinarily resident in that State; is absent, except on leave of absence granted by the Minister from all meetings of the Commission held during two consecutive months; or fails to comply with obligations imposed on him by the Act to disclose interests he has in contracts made or proposed to be made by the Commission (s 37). The Commission holds such meetings as, in the opinion of the Chairman, or at least four other Commissioners, are necessary for the efficient conduct of its affairs (s 39 (1)). The Commission is required to appoint a General Manager who is its Chief Executive Officer and holds office on such terms and conditions as the Commission determines; the Commission appoints such other officers as it thinks necessary; and those officers constitute the service of the Commission (s 43 (1), (2) and (3)). The Commission determines the terms and conditions of employment of officers appointed by it, but that determination must be with the approval of the Public Service Board (s 43 (6)). The Commission may declare that an officer is not to be paid salary where he refuses or fails to comply with a lawful direction (s 44 (1)). The Commission may create positions in its service and determine the salary or the range of salary applicable to that position; it may abolish any position in its service; and may reclassify any position in its service by raising or lowering the salary or the range of salary applicable to the position (ss 45 and 46). A determination by the Commission of the salary or range of salary applicable to a position in its service, or a reclassification of such a position by raising the salary or range of salary, shall be made with the approval of the Public Service Board where the salary or any salary in the range of salary as so determined or raised is equal to or higher than the lowest salary for the time being applicable to an officer in the Second Division of the Australian Public Service (s 46A). The Commission may transfer or promote an officer to fill a vacancy in its service (s 47). Section 59 is, in effect, the Commission's charter. It requires the Commission to: "provide... adequate and comprehensive programs" and to"...take in the interests of the community all such measures as, in the opinion of the Commission, are conducive to the full development of suitable broadcasting and television programs." The Commission is also required or empowered to: · broadcast daily from all national broadcasting stations regular sessions of news and information about current events within Australia and in other parts of the world (s 66 (1); · employ an adequate staff in Australia and abroad to collect news and information (s 66 (2); · endeavour to establish groups of musicians for orchestral, choral and band music of high quality (s 66 (7) ); · as much as possible, use Australians in the production and presentation of radio and television programs (s 114 (1); · devote not less than 5% of music program time to works by Australian composers (s 114 (2)); · determine to what extent and in what manner political matter or controversial matter will be broadcast or televised (s 116); The Commission is prohibited from broadcasting or televising advertisements (s 65 (1). The Commission is required to broadcast or televise, free of charge, from all National Broadcasting Stations or National Television Stations ox from such of them as the Minister specifies, any matter the broadcasting or televising of which is directed by the Minister in writing as being in the national interest (s 64). The Minister is empowered, from time to time, by telegram or in writing, to prohibit the Commission from broadcasting or televising any matter, or matter of any class or character, specified in the notice, or may require the Commission to refrain from broadcasting or televising any such matter (s 77 ). The Commission is required, as soon as possible, but not later than six months after the expiration of each financial year, to forward a report on its operations during that year to the Minister for representation to both Houses of Parliament (s 78 (1)). The commission is required to include in that report particulars of each transmission arranged at the written direction of the Minister pursuant to s. 64; each case in which the Minister has exercised the powers conferred on him by s. 77; and any case in which the Minister has, otherwise than in pursuance of the provisions of the Act, issued directions concerning the broadcasting or televising by the Commission of any matter or prohibited the broadcasting or televising by the Commission of any matter (s 78 (3)). Where the Minister has given a direction under s. 64 or has prohibited the broadcasting or televising of any matter or made any requirement under s. 77, he is required, within seven sitting days of giving such direction or notifying such prohibition or requirement, to report the same in writing to both Houses of Parliament and to give the reasons for such direction, prohibition or requirement (s 78A). The Commission is required to provide such studios, offices and other accommodation as are necessary for the performance of its powers and functions under the Act, and such accommodation in relation to the studios as the Minister requires for the carrying out of certain technical services; and the location of any studios to be provided by the Commission is subject to the Minister's approval (s 63). The Commission is required to provide and operate all the technical equipment required for the purposes of performing its functions; and the Minister is required to arrange for the provision and operation, for the purposes of the performance by the Commission of its functions, of transmitting stations, broadcasting translator stations, television translator stations and television repeater stations, and technical equipment to connect a studio of the Commission to the local transmitting station (s 73 (1) and (2) ). For the purposes of the exercise of its powers and the performance of its functions under the Act, the Commission is empowered, in such manner as it thinks fit: - (a) to compile, prepare, issue, circulate and distribute such papers, magazines, periodicals, books, pamphlets, circulars and other literary matter as its thinks fit; and (b) to make, promote, circulate, and distribute cinematograph films and sound recordings of or relating to programmes of the Commission and public concerts and other public entertainment which the commission arranges, organises or subsidises (s 60 (1)). The Commission may, from time to time, determine charges payable in respect of any of the matters or activities referred to in s 60(1) with a view to raising as much net revenue as is practicable (s 60(2)). The Commission is funded by moneys appropriated by Parliament for the purposes of the Commission; and the Minister of Finance may give directions as to the amounts in which and the times at which these moneys are to be paid to the Commission (s 68). The Commission is required to pay all of its moneys into its bank accounts (s 69). The moneys of the Commission must be applied only in payment of amounts properly payable in the performance of its functions and in payment of remuneration or allowances payable to Commissioners (s 70). The Commission is required to prepare estimates, in such form as the Minister directs, of its receipts and expenditure for each financial year and, if the Minister so directs for any other period specified by him, and the Commission is required to submit estimates so prepared to the Minister not later than such date as the Minister directs (s 70 A (i)). The moneys of the Con‑mission cannot be expended otherwise than in accordance with estimates of expenditure approved by the Minister (s 70 A (ii)). The Commission is prohibited, without the Minister's approval, from entering into contracts involving the payment or receipt of amounts exceeding $250,000.00 or, if a higher amount is prescribed then that higher amount; but that prohibition does not apply to the receipt by the Commission of moneys for the sale of broadcasting or television programmes (s. 70B). The Commission must cause to be kept proper accounts and records of its transactions and affairs and to do all things necessary to ensure that all payments out of its moneys are correctly made and properly authorised and that adequate control is maintained over its assets and over the incurring of its liabilities (s 71 ). The Auditor‑General is required to inspect and audit the accounts and records of financial transactions of the Commission and records relating to assets of the Commission, and to draw the attention of the Minister to any irregularities disclosed by the inspection and audit. The Auditor-General is required at least once each year to report to the Minister the results of his inspection and audit. The Auditor-General is authorised, at all reasonable times, to have full and free access to all the Commission's records relating to the receipt or payment of moneys by it or to the acquisition, receipt, custody or disposal of its assets (s 71B).