Over at The House of Commons, Catherine Bond has a couple of posts (1, 2) about potential legislative responses to the High Court’s decision yesterday Copyright Agency Limited v State of New South Wales [2008] HCA 35 (see also Kim Weatherall).
Her second post is about potential constitutional issues if the legislation proposed in her first post is passed.
Though, sadly, I don’t get to as much constitutional law as I would like to these days (I don’t work here), I think some of the more recent High Court decisions suggest that the acquisition on just terms issue (as seen in The Castle) may not be a big issue.
In particular, there are a couple of recent decisions that make clear that not every curtailment or restriction of a right is an acquisition of property within the meaning of section 51(xxxi).
One of those cases is Attorney-General (Northern Territory) v Chaffey (2007) 81 ALJR 1388; 237 ALR 373; [2007] HCA 34, the Court accepted (at [30]) the submission that the rights granted by statute (in that case, worker’s compensation) “had not been fixed in permanent form at the [relevant time] and was always subject to variation” (at [18]). A similar argument may be able to be made in relation to copyright, particularly where there are only modest exceptions introduced (see at [23]–[25]).
The other case is Telstra v Commonwealth (2008) 82 ALJR 521; 243 ALR 1; [2008] HCA 7. In that case, the Court held that laws that gave competitors access to Telstra’s infrastructure (for a fee) were not an acquisition of Telstra’s property because (at [52] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan, and Kiefel JJ):
Telstra’s bundle of rights in respect of the [infrastructure] has always been subject to the rights of its competitors to require access to and use of the assets.”
Or, slightly differently expressed (at [53]):
What is important is that the rights in the assets vested in Telstra were rights to use the assets in connection with the provision of telecommunications services but those rights were always subject to a statutory access regime which permitted other carriers to use the assets in question.
Similar things can be said about copyright. Copyright has (at least not for a century) been granted unconditionally: it has always been subject to some exceptions (e.g., fair dealing, or for the purpose of judicial proceedings). See also Health Insurance Commission v Peverill (1994) 179 CLR 226 at 237 per Mason CJ, Deane, and Gaudron JJ; [1994] HCA 8.
Finally there’s the spectre of Work Choices case, New South Wales v Commonwealth (2006) 81 ALJR 34; 231 ALR 1; [2006] HCA 52. As the High Court held in that case (see at [223]–[229] per Gleeson CJ, Gummow, Hayne, Heydon, and Crennan JJ), which suggests that where a general power of the Commonwealth Parliament is engaged, it is unlikely to be subject to a “negative implication of exclusivity” from another head.
(I candidly acknowledge that this argument is much weaker—and perhaps illusory—in relation to section 51(xxxi) because it is not a substantive head of power, but rather a limitation on other heads of power: see Theophanous v Commonwealth (2006) 225 CLR 101 at [55] per Gummow, Kirby, Hayne, Heydon, and Crennan JJ; [2006] HCA 18. On the other hand, section 51(xviii) is also a little different because the subject-matter of the power is exclusively forms of property.)
Interesting as this is, this is really the converse of the constitutional issues about which Kirby J mused in Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 79 ALJR 1850 at [168], [216]; 221 ALR 448; [2005] HCA 58. There, Kirby J considered the property of copyright licensees (i.e., consumers), not copyright owners.
The upshot of all this? I think the Commonwealth Parliament should feel free to legislate away, if it was so minded. Though of course it would be prudent to include a saving provision like that considered by the High Court in Telstra at [36]–[42].
And, of course, take the advice of a real constitutional lawyer. Not someone who just plays one on a blog.
As is often the case, subsequent reflection gives rise to an additional point.
There may also be scope for an argument based on Kartinyeri v Commonwealth (1998) 195 CLR 337; [1998] HCA 22, in which the High Court held that where the Commonwealth had power to make laws with respect of a subject matter, they have power to later repeal those laws: (1998) 195 CLR 337 at 355–358 [13]–[19] per Brennan CJ and McHugh J, 368–369 [47]–[49] per Gaudron J; but see 372 [57], 375–377 [66]–[72] per Gummow and Hayne JJ at 419–422 [169]–[175] per Kirby J (dissenting).
In that case, the relevant power was the racial legislation power in section 51(xxvi), which was amended at the 1967 referendum. There is no reason why the same proposition wouldn't apply to the copyright power in section 51(xviii).
