15.33 Copyright material is sometimes provided in evidence, in a report, or otherwise presented (‘tabled’) before a parliament or a parliamentary committee. The Copyright Act does not currently include an exception for use of material for parliamentary proceedings or reporting on parliamentary proceedings. Article 9 of the Bill of Rights 1689 has been adopted in all Australian jurisdictions and provides that ‘the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’. This privilege protects the publication of papers for the use of members of Parliament from claims of copyright infringement. However, it does not protect wider publication, even if authorised by the Parliament. Wider publication is usually necessary to ensure that the proceedings of Parliament can be scrutinised by citizens.
15.34 Accordingly, each Australian parliament (except Tasmania and South Australia) has enacted legislation protecting a person who publishes parliamentary papers from civil or criminal action. For example, the Parliamentary Privileges Act 1987 (Cth) provides that, for the purpose of art 9, ‘proceedings in Parliament’ include acts done for the purposes of:
(a) the giving of evidence before a House or a committee, and evidence so given;
(b) the presentation or submission of a document to a House or a committee;
(c) the preparation of a document for purposes of or incidental to the transacting of any such business; and
(d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.
15.35 There was some support among stakeholders for a specific exception for parliamentary records. There is a specific exception in the United Kingdom and New Zealand. However, there is insufficient evidence before the ALRC to justify such a recommendation. The current legal protections appear to be sufficient to permit parliaments to publish tabled material and records of proceedings. The Tasmanian Parliament has the power to legislate to protect publishers of parliamentary papers from claims of copyright infringement if it so wishes.
15.36 The Australian Commonwealth, state and territory parliaments have sufficient powers to protect themselves from claims of copyright infringement, and a specific exception in the Copyright Act is not necessary.
Parliamentary Privileges Act 1987 (Cth) s 16(1); Imperial Acts Application Act 1969 (NSW) s 6, sch 2; Parliament of Queensland Act 2001 (Qld) s 8; Imperial Acts Application Act 1984 (Qld) s 5, sch 1; Constitution Act 1934 (SA) s 38; Imperial Acts Application Act 1980 (Vic) ss 2, 8; Parliamentary Privileges Act 1891 (WA) s 1; Australian Capital Territory (Self Government) Act 1988 (Cth) s 24; Legislative Assembly (Powers and Privileges) Act 1992 (NT) s 6(1); R v Turnbull (1958) Tas SR 80 , 84.
E Campbell and M Groves, ‘Parliamentary Papers and their Protection’ (2004) 9 Media & Arts Law Review 113, 114, discussing Stockdale v Hansard (1840) 11 Ad & E 253; 113 ER 1112.
Parliamentary Privileges Act 1987 (Cth) s 16(2); Parliamentary Papers (Supplementary Provisions) Act 1975 (NSW) s 6; Parliament of Queensland Act 2001 (Qld) s 8; Constitution Act 1975 (Vic) s 73; Parliamentary Privileges Act 1891 (WA) s 1; Australian Capital Territory (Self Government) Act 1988 (Cth) s 24; Legislative Assembly (Powers and Privileges) Act 1992 (NT) s 11. In Tasmania, there is protection from defamation for a person who publishes a fair report of public parliamentary proceedings: Defamation Act 2005 (Tas) s 29, but no protection for copyright infringement. South Australian provisions were contained in the Wrongs Act 1936 (SA) s 12 but this Act has been repealed and equivalent provisions do not appear in the replacement Act, the Civil Liability Act 1936 (SA).
Parliamentary Privileges Act 1987 (Cth) s 16(2).
Victorian Government, Submission 282; DSITIA (Qld), Submission 277; State Records South Australia, Submission 255.
Copyright, Designs and Patents Act 1988 (UK) s 45.
Copyright Act 1994 (NZ) s 59.
While Commonwealth legislation normally overrides state legislation, Campbell & Monotti point out that ‘the federal Parliament cannot … use its legislative powers in ways that impair the capacity of State governments to perform their constitutional functions’: E Campbell and A Monotti, ‘Immunities of Agents of Government from Liability for Infringement of Copyright’ (2002) 30 Federal Law Review 459, 469.