In the matter of a reference under section 154 of the Australian Performing Rights Association Ltd v. Australian Broadcasting Commission [1982] FCA 272

Federal Court of Australia|1982-07-01|Before: Sheppard JJ, Franki J

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ches noe J yeh CAT'CHWORDS 1 Copyright - Reference from Copyright Tribunal - Licence scheme under s.154 - Whether Australian Broadcasting Commission falls

within "Commonwealth" in s.183 - Agent or instrumentality of the

Broadcasting and Television Act 1942 ss.32, 43, 64, 70, 7OB, 77, TGA.

IN THE MATTER of the Copyright Act 1968, (as amended) and IN THE MATTER of a reference under Section 154 of the

Australasian Performing Right Association Ltd. re Australian Broadcasting Commission.

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) ) NCW SOUTH WALES DISTRICT REGISTRY ) No. G171 of 1982 ) )

IN THE MATTER of the Copyright Act, 1968, (as amended) and

IN THE MATTER of a reference under Section 154 of the

Australasian Performing Right Association Ltd. re Australian Broadcasting Commission.

ORDER JUDGES MAKING ORDER: Bowen C.J., Franki and Sheppard JJ. WHERE MADE: Sydney DATE: 15 December, 1982. THE COURT ORDERS THAT:~ l. The questions referred to this Court by the Copyright

Tribunal pursuant to s.161 of the Copyright Act 1968 be answered as follows:- Question 1: is the Commission an agent or

Answer: No. Question 2: Are acts, being broadcasts by radio or

television which are done for the National Broadcasting and Television Service conducted by the Commission, done for the services of the Commonwealth within the meaning of sub-section 183(1)

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Ansver: ko. Quvesticn 3: Dces the Tribunal have jurisdiction to

make orders confirming or varying the licence scheme pursuant to s.154 of the Act?

Copyright Act, 1968. 2. The Australian Broadcasting Commission pay to Australasian Performing Right Association Lamited its

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NEW SOUTH WALES DISTRICT REGISTRY) No. G171 of 1982

IN THE MATTER of the Copyright Act, 1968, (as amended) and

Australasian Performing Right Association Ltd. re Australian

This is a case stated by the Copyright Tribunal ("the Tribunal") for the opinion of the Court pursuant to s.161 of the Copyright Act 1968 ("the Act") by which questions of law arising in proceedings before the Tribunal may be referred for

The Australasian Performing Right Association Limited (APRA) being or claiming to be a licensor within the meaning of s.136({1) of the Act formulated a licence scheme ("the licence scheme") setting out the classes of cases in which it, as licensor, was 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

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incurred in the provision of radio and television broadcasting services. APRA xeferred the licence scheme to the Tribunal pursuant to s.154(1) of the Act and purported to bring the scheme

into operation on 20 February 1981 pursuant to s-154(6)(a)-

Before the Tribunal the Commission took a preliminary objection to the Tribunal's jurisdiction to consider the scheme and to make orders confirming or varying it under s.154(4) on the ground that the Commission was an agent or instrumentality of the Commonwealth and as such was protected by s.183 of the Act from infringing copyright when broadcasting or televising items in which copyright subsists. The Commission further contended that, in the circumstances of the present case, s.183 provided an

exclusive code for the fixing by the Tribunal of the terms on

which the Commission may do acts comprised in a copyright.

The Tribunal heard argument on the preliminary objection and, on 11 June 1982, held that the Commission was not an instrumentality or agency of the Commonwealth and published reasons for that decision. The Tribunal refrained at that stage

from making any orders or answering any specific questions

The Tribunal has referred the following questions of law

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(1) Is the Commission an agent or instrumentality of the

{2) Are acts, being broadcasts by radio or television which

are done for the National Broadcasting and Television

(3) Does the Tribunal have jurisdiction to make orders

confirming or varying Fhe licence scheme pursuant to

Section 183 of the Act provides so far as is relevant:

"(1) The copyright in a literary, drematic, musical or artistic work or a published edation of such a work, or in a_ sound recording, cinematograph film, television broacast or sound broadcast, 218 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.

(3) Authority may be given under sub-section (1) before or after the acts in

respect of which the authority 1s given have been done, and may be given to a person notwithstan@ing that he has a licence granted by, or banding on, the owner of the copyright to do the acts.

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c > 4. (4) Where an act comprised in a copyright has been done under sub-section (1), the Commonwealth or State shall, as soon as possible, unless 1t appears to the

Commonwealth or State that it would be contrary to the public interest to do so,

inform the owner of the copyright, as prescribed, of the doing of the act and shall --

furnish him with such information as to the doing of the act as he from time to time

(5) Where an act comprised in a copyright has been done under sub-section (1), 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.

Section 154 of the Act provides so far as is relevant:

licence scheme into operation, he may refer the scheme to the Tribunal.

(4) The Tribunal shall consider a scheme referred under this section and, after giving

to the parties to the reference an opportunit of presenting their cases, shall make suc

order, either confirming or varying the scheme, as the Tribunal considers reasonable in the circumstances.

(6) Where a licence scheme has been referred to the Tribunal under this section, the

licensor may do either or both of the following things:

(a) bring the scheme into operation before the Tribunal makes an order in pursuance

(b) withdraw the reference at any time before the Tribunal makes an order in pursuance

of the reference, whether the scheme has been brought into operation or not.

The effect of a licence scheme under s.154 is that a

person to whom the scheme applies has the benefit of it.

The extent of the words "a licence scheme", referred to

in s.154, 1s dealt with in s.136 and extends to the copyright in

a literary, dramatic or musical work or a sound recording. It

does not appear to extend to ali the categories referred to in

s.183(1), for example to an artistic work or to the making by the Commonwealth of a cinamatograph film for the service of the Crown

in, for example, the Attorney-General's Department.

The case for the Commission was put upon the basis that

the Commission was equated with the Commonwealth in s.183 and

that broadcasting by the Commission was broadcasting "for the

services of the Commonwealth". It was submitted that any

television or sound broadcasting by the Commission was protected

by s.183(1). It was not suggested that the Commission was a person authorised 1n writing by the Commonwealth or that it was

necessary to examine each item broadcast individually.

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ty > 6. | A. Is the Commission included in the word "Commonwealth" in ' s.183; and B. Does a television or sound broadcast by the Commission, without more, fall within the words "acts ... done for

We return now to the specific questions we have been asked.

We were asked to consider whether the Commission is "an agent or instrumentality of the Commonwealth" for the purposes of s.183. It is not clear to us that this is the question which has to be answered. The question arising on the words of that

section we have formulated as question A. Some legislation, when

dealing with the Commonwealth, makes it clear that word "Commonwealth" includes references to an authority of the

Commonwealth. For example, s.125 of the Patents Act 1952 uses

words in relation to patents equivalent to those appearing in

s.183(1) of the Act, but s.132 of the Patents Act provides that

+». the references to the Commonwealth include references to an

authority of the Commonwealth ...". However we will approach the

question in the broad way in which it has been presented.

There is a number of cases dealing with the question

whether a corporation is what may be called an instrumentality or

as it 1s sometimes called an emanation by which the Commonwealth

operates. In Inglis v. Commonwealth Trading Bank of Australia

(1969) 119 C.L.R. 334, the High Court considered whether that bank fell within the description in s.75(3) of the constitution

as being "sued on behalf of the Commonwealth". A majority of the

Court held that it was. Kitto J., with whose judgment Windeyer J

and Barwick C.J. , in substance, agreed, said (at pp.337-338):

"The decisive question is not whether the activities and functions with which the respondent is endowed are traditionally governmental in character, though their possession of a traditional or generally

accepted governmental character may well help un the ascertainment of the legislative

antention. The question is rather what intention appears from the provisions relating

to the respondent in the relevant statute: 1s it, on the one hand, an intention that the Commonwealth shall operate in a particular field through a corporation created for the purpose; or is it, on the other hand, an intention to put into the field a corporation to perform its functions independently of the Commonwealth, that is to say otherwise than as a Commonwealth instrument, so that the concept of a Commonwealth activity cannot

realistically be applied to that which the corporation does?"

Corporation (1946) 73 C.L.R. 70 the High Court dealt with the

question whether land which was vested in a statutory corporation

came within the words "land the property of His Majesty" and thus

was exempt from rates. Five of the six members of the Court took

the view that the land did not come within the words "the

property of His Majesty". Latham C.J., (at pp.75-76), 1n dealing

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with functions which were governmental in character pointed out that some functions were inalienable functions of government but that other governmental functions were made such by statute. In a number of cases the High Court has had to consider somewhat similar questions but no useful purpose would be served by dealing with them 1n any detail. At p.76 the Chief Justice posed the relevant question in various ways including "Were they

Government servants doing the work of the Government?"

In Superannuation Fund Investment Trust v. Commissioner

of Stamps (S-A.) (1979) 53 A.L.J.R. 614, the High Court

considered whether the Superannuation Fund Investment Trust was the Crown in the sense that it was to be regarded as equated with

the Crown in right of the Commonwealth or as an instrumentality

or agent of the Crown in right of the Commonwealth in certain

activities. Stephen and Aickin JJ. held it was not. Barwick

C.J. took a different view. Stephen J. (at p.619) said that he

+++ placed most weight upon the entire independence of the

members of the Trust in relation to their investment function".

"Whether the appellant is, or represents, the Crown an right of the Commonwealth depends upon the

"Of all the kinds of provisions that may be relevant to the determination of whether a

statutory body (whether corporate or not) is the Crown, the capacity of the executive

directly by instruction or direction or indirectly by power to remove otherwise than

for misconduct or incapacity those in control of its operations), and the nature of its

At p.622 Mason J. held that the Trust was the Crown in

right of the Commonwealth and he said that "although the Trust is

a separate corporate entity the control which the Crown has over its membership and its activities shows that it is the alter ego of the Crown". He noted, inter alia, that 1ts members were appointed and liable to removal by the Executave Government. Barwick C.J. reached the same conclusion that the Trust was "a manifestation of the Crown in right of the Commonwealth". It is clear from the judgment in this case, as in others, that the question 1s to be determined by an analysis of the relevant legislation.

In Townsville Hospitals Board Vv. Council of the City

of Townsville (1982) 56 A.L.J.R. 789 it was held the Townsville

Hospitals Board was not entitled to the immunity of the Crown.

ee eee eee many functions formerly regarded as matters of private concern are now carried out by

instrumentalities of government and the question whether the functions in question are traditionally

or peculiarly governmental is likely to be increasingly unhelpful in deciding whether the body

formed to carry out those functions enjoys the privileges and immunities of the Crown".

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"It has more than once been said in this Court that 'there is evidence of a strong tendency to regard a

statutory corporation formed to carry on public functions as distinct from the Crown unless

parliament has by express provision given it the character of a servant of the Crown': Launceston Corporation Vv. The Hydro-Electric Commission

Electricity Commission of Victoria v. City of South Melbourne (1968) I18 C.L-.R. 504, at sine:

All persons should prima facie be regarded as equal before the law, and no statutory body should be

accorded special privileges and immunities unless it clearly appears that it was the intention of the

legislature to confer them. It 1s not difficult for the legislature to provide in express terms

that a corporation shall have the privileges and immunities of the Crown, and where it does not do

so it should not readily be concluded that it had the intention".

We have to determine the question by examining the Act

constituting the Commission. This 1s the Broadcasting and

Television Act 1942. The learned President of the Tribunal

analysed the Act in detail and we see no useful purpose in

repeating his analysis in detail. He pointed out (at pp.12-13):

whether the corporation fulfills a governmental or non-governmental function; the capacity of

the Government to control its activities; financial autonomy; the right of appointment

and dismissal of the members of the body of its staff by the Government; whether it has

duties to furnish information or accounts to the Government; and its power over assets in

It is clear that the Broadcasting and Television Act

gives the Commission a great deal of autonomy and it cannot be

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said that broadcasting and television are inalienable government functions. The Broadcasting and Television Act has a number of provisions which are not unusual in statutory corporations, for example, funds provided by the government, audit by the Auditor General, and the obligation to report to Parliament. The Commission is constituted by eleven members appointed by the Governor-General who hold office subject to good behaviour for a fixed period. There 1s no power to terminate the appointment of a member of the Commission other than for misbehaviour (s.32). The Commission appoints the General Manager who is the Chief Executive Officer and holds the office on such terms and conditions as the Commission determines (s.43(1)). It may also appoint other officers (s.43(2)) who are not except, in special circumstances, officers of the Australian Public Service

Ministerial control which is not also applicable to commercial

stations. Section 116 provides that the Commission may determine

to what extent and in what manner political matter or

controversial matter will be broadcast or telecast by the

Commission. Sections 64, 77 and 78A of the Broadcasting and

Television Act deal with the only other relevant aspects of

matter broadcast or televised by the Commission which are subject

to Ministerial control. Under s.64 the Commission 1s required to

broadcast or televise from such stations "".. as the Minister

specifies, any matter the broadcasting or televising of which is

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directed by the Minister in writing as being in the national

interest." Under s.77 the Minister may "... by telegram or in writing prohibit the Commission from broadcasting or televising any matter, or matter of any class or character, specrfied in the

notice, or may require the Commission to refrain from

broadcasting or televising any such matter". Section 78A requires the Minister, if he acts under s.64 or 77, shall within 7 sitting days "... report the same in writing to both Houses of the Parliament and shall give the reasons for such direction, prohibition or requirement, as the case may be."

It is clear that, so far as concerns programmes, the Commission is subject to very little governmental control.

Similarly in relation to its administrative activities, it is

also subject to minimal control. It depends, of course, for the provision of funds substantially upon, ".. such monies as are appropriated by the Parliament for the purposes of the Commission" (s.68(1)). Section 70 provides that the monies of the Commission shall be applied only in payment of amounts properly payable in the performance of its functions and in payment of remuneration and allowances payable to Commissioners. Otherwise

the Commission may administer its affairs substant1rally as it

sees fit. There 1s a limitation on the Commission entering into

In our opinion the Commission does not fall within the

word "Commonwealth"; nor is 1t an agent or instrumentality of the

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If it did fall within s.183 the question, which we have

called question B, would then arise whether television broadcasts

or sound broadcasts were acts done "for the services of the

Commonwealth" within s.183(1). This question is substantially

Corporation v. Ministry of Health (1965) A.C. 512 where the

question arose whether the supply of medicine to the National

Health Service Hospitals for use in the treatment of patients,

fell within the expression "for the services of the Crown" and so

fell within a provision in s.46(1) of the Patents Act, 1949

(U.K.) permitting the use of patented inventions by any

Government department for the services of the Crown.

Government department within the meaning of that section. It

thus became only necessary to examine the words "the services of

At a glance

Court

Decision date

Before

Source

Judgment (413 paragraphs)

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Cited By (1)