Commonwealth Numbered Acts Commonwealth Numbered ActsPart 1 -- Licences and licence schemes
Division 1--Voluntary licences
1 Subsection 136(1) (definition of licence )
Repeal the definition, substitute:
"licence" means a licence granted by or on behalf of the owner or prospective owner of the copyright in a work or other subject-matter to do an act comprised in the copyright.
2 Subsection 136(1) (definition of licensor )
Repeal the definition, substitute:
"licensor" means a body corporate for which both the following conditions are met:
(a) the body is incorporated under a law in force in a State or Territory relating to companies;
(b) the body's constitution:
(i) entitles any owner of copyright, or any owner of copyright of a specified kind, to become a member of the body; and
(ii) requires the body to protect the interests of its members connected with copyright; and
(iii) provides that the main business of the body is granting licences; and
(iv) requires the body to distribute to its members the proceeds (after deduction of the body's administrative expenses) from payments to the body for licences; and
(v) prevents the body from paying dividends.
3 Application and transitional provisions
(1) The amendments made by this Division apply in relation to licences granted before, on or after the commencement of the amendments and in relation to licence schemes formulated before, on or after that commencement.
(2) However, if proceedings in the Tribunal under section 154, 155, 156 or 157 of the Copyright Act 1968 had been started but not completed before the commencement of the amendments made by this Division, the proceedings may be continued after that commencement as if the amendments had not been made.
Division 2--Substituting licence schemes
4 Subsection 154(4)
Omit ", either confirming or varying the scheme,", substitute ", confirming or varying the scheme or substituting for the scheme another scheme proposed by one of the parties,".
5 Subsections 154(7) and (8)
Repeal the subsections, substitute:
(7) The scheme reflecting the Tribunal's order:
(a) comes into operation when the order is made, if the scheme referred to the Tribunal had not already come into operation; and
(b) operates as long as the order remains in force.
This subsection has effect despite anything in the scheme referred to the Tribunal.
Note: Depending on the Tribunal's order, the scheme reflecting the order will be the scheme confirmed by the order, the scheme as varied by the order or the scheme substituted by the order for the scheme referred to the Tribunal.
6 Subsection 155(5)
Repeal the subsection, substitute:
(5) The Tribunal must consider the matter in dispute, give the parties an opportunity of presenting their cases then make an order that the Tribunal considers reasonable in the circumstances doing one of the following to the scheme so far as it relates to the relevant class:
(a) confirming it;
(b) varying it;
(c) substituting for it another scheme proposed by one of the parties.
This subsection has effect to subsection (4).
7 Subsection 155(10)
Repeal the subsection, substitute:
(10) The scheme reflecting the Tribunal's order operates as long as the order remains in force, despite anything in the scheme referred to the Tribunal.
Note: Depending on the Tribunal's order, the scheme reflecting the order will be the scheme confirmed by the order, the scheme as varied by the order or the scheme substituted by the order for the scheme referred to the Tribunal.
8 Subsection 156(1)
Omit "again", substitute "reflecting the order".
9 Subsection 156(2)
Omit "licence".
10 Subsection 156(2)
Omit "again".
11 Subsection 156(4)
Repeal the subsection, substitute:
(4) The Tribunal must consider the matter in dispute, give the parties an opportunity of presenting their cases then make an order that the Tribunal considers reasonable in the circumstances doing one of the following to the scheme so far as it is referred to the Tribunal under subsection (1):
(a) confirming it;
(b) varying it;
(c) substituting for it another scheme proposed by one of the parties.
This subsection has effect to subsection (5).
12 Subsection 157(6)
Repeal the subsection, substitute:
Letting parties present their cases
(6) The Tribunal must give the applicant, the licensor concerned and each other party (if any) to the application an opportunity of presenting their cases.
Order dealing with application under subsection (1)
(6A) If the Tribunal is satisfied that the claim of an applicant under subsection (1) is well‑founded, the Tribunal must either:
(a) make an order specifying, in respect of the matters specified in the order, the charges, if any, and the conditions, that the Tribunal considers to be applicable in accordance with the licence scheme in relation to the applicant; or
(b) order that the applicant be granted a licence in the terms proposed by the applicant, the licensor concerned or another party to the application.
Order dealing with application under subsection (2) or (3)
(6B) If the Tribunal is satisfied that the claim of an applicant under subsection (2) or (3) is well‑founded, the Tribunal must either:
(a) make an order specifying, in respect of the matters specified in the order, the charges, if any, and the conditions, that the Tribunal considers reasonable in the circumstances in relation to the applicant; or
(b) order that the applicant be granted a licence in the terms proposed by the applicant, the licensor concerned or another party to the application.
Order dealing with application under subsection (4)
(6C) If the Tribunal is satisfied that the claim of an applicant under subsection (4) is well‑founded, the Tribunal must either:
(a) make an order specifying, in respect of the matters specified in the order, the charges, if any, and the conditions, that the Tribunal considers reasonable in the circumstances in relation to persons who:
(i) are specified in the order (whether by reference to a class or otherwise); and
(ii) were represented by the applicant or were parties to the application; or
(b) order that a licence be granted, in the terms proposed by the applicant, the licensor concerned or another party to the application, to each person who:
(i) is specified in the order (whether by reference to a class or otherwise); and
(ii) was represented by the applicant or was a party to the application.
Note 1: The following heading to subsection 157(1) is inserted " Refusal or failure to grant licence under licence scheme ".
Note 2: The following heading to subsection 157(2) is inserted " Licence scheme sets unreasonable charges or conditions for case ".
Note 3: The following heading to subsection 157(3) is inserted " No licence scheme and licensor refuses or fails to grant reasonable licence ".
Note 4: The following heading to subsection 157(5) is inserted " Other parties to application ".
Note 5: The following heading to subsection 157(7) is inserted " Definition of refusal or failure to grant a licence ".
13 Subsection 159(1)
Omit "as confirmed or varied by" (first occurring), substitute "reflecting".
14 Subsection 159(1)
Omit "the scheme, as confirmed or varied by the order", substitute "that scheme".
15 Paragraph 159(2)(a)
Omit "licence scheme as confirmed or varied by", substitute "scheme reflecting".
16 Paragraph 159(2)(b)
Omit "as so confirmed or varied".
17 Subsection 159(3)
Omit "licence" (first occurring).
18 Subsection 159(3)
Omit ", as confirmed or varied by", substitute "reflecting".
19 Subsection 159(3)
Omit "thing", substitute "thing,".
20 At the end of section 159
Add:
(7) To avoid doubt, subsections (4) and (5) do not apply to an order that a person be granted a licence.
Order under section 157 that person be granted licence
(8) A person whom the Tribunal has ordered under section 157 be granted a licence in the terms proposed by the applicant, the licensor concerned or another party to the application under that section:
(a) is taken, for the purpose of proceedings for infringement of copyright, to have been granted the licence in those terms; and
(b) is liable to pay the owner of the copyright concerned the amount of any charges that would be payable if the person had been granted the licence in those terms.
Note: Paragraph (a)--if those terms made the licence subject to conditions and the person did not comply with the conditions, the licence will not give the person a defence in the proceedings.
(9) The owner of the copyright may recover the amount described in paragraph (8)(b) from the person in a court of competent jurisdiction as a debt due to the owner.
Note 1: The following heading to subsection 159(1) is inserted " Order under section 154. 155 or 156 ".
Note 2: The following heading to subsection 159(4) is inserted " Order under section 157 specifying conditions and charges ".
Division 3--Involvement of Australian Competition and Consumer Commission
21 At the end of subsection 154(2)
Add:
; and (c) the Australian Competition and Consumer Commission, if the Tribunal makes the Commission a party to the reference under section 157B.
22 At the end of paragraph 155(2)(a)
Add "and".
23 At the end of subsection 155(2)
Add:
; and (d) the Australian Competition and Consumer Commission, if the Tribunal makes the Commission a party to the reference under section 157B.
24 At the end of paragraph 156(3)(a)
Add "and".
25 At the end of subsection 156(3)
Add:
; and (d) the Australian Competition and Consumer Commission, if the Tribunal makes the Commission a party to the reference under section 157B.
26 At the end of subsection 157(5)
Add:
Note: Under section 157B, the Tribunal may also make the Australian Competition and Consumer Commission a party to the application.
27 After section 157
Insert:
157A Tribunal must have regard to ACCC guidelines on request
(1) In making a decision on a reference or application under this Subdivision, the Tribunal must, if requested by a party to the reference or application, have regard to relevant guidelines (if any) made by the Australian Competition and Consumer Commission.
(2) To avoid doubt, subsection (1) does not prevent the Tribunal from having regard to other relevant matters in making a decision on a reference or application under this Subdivision.
157B Tribunal may make ACCC party to reference or application
The Tribunal may make the Australian Competition and Consumer Commission a party to a reference or application made under this Subdivision if:
(a) the Commission asks to be made a party to the reference or application; and
(b) the Tribunal is satisfied that it is appropriate that the Commission be a party to the reference or application.
Part 2 -- Distribution of amounts collected by declared collecting societies
28 At the end of Division 3 of Part VA
Add:
135SA Applying to Tribunal for review of distribution arrangement
(1) The collecting society or a member of the collecting society may apply to the Copyright Tribunal for review of the arrangement adopted, or proposed to be adopted, by the collecting society for distributing amounts it collects in a period.
(2) If the Tribunal makes an order under section 153BAD varying the arrangement or substituting for it another arrangement, the arrangement reflecting the Tribunal's order has effect as if it had been adopted in accordance with the collecting society's rules, but does not affect a distribution started before the order was made.
29 At the end of Division 6 of Part VB
Add:
135ZZEA Applying to Tribunal for review of distribution arrangement
(1) A collecting society or a member of a collecting society may apply to the Copyright Tribunal for review of the arrangement adopted, or proposed to be adopted, by the collecting society for distributing amounts it collects in a period.
(2) If the Tribunal makes an order under section 153DE varying the arrangement or substituting for it another arrangement, the arrangement reflecting the Tribunal's order has effect as if it had been adopted in accordance with the collecting society's rules, but does not affect a distribution started before the order was made.
30 At the end of Division 3 of Part VC
Add:
135ZZWA Applying to Tribunal for review of distribution arrangement
(1) A collecting society or a member of a collecting society may apply to the Copyright Tribunal for review of the arrangement adopted, or proposed to be adopted, by the collecting society for distributing amounts it collects in a period.
(2) If the Tribunal makes an order under section 153R varying the arrangement or substituting for it another arrangement, the arrangement reflecting the Tribunal's order has effect as if it had been adopted in accordance with the collecting society's rules, but does not affect a distribution started before the order was made.
31 At the end of Subdivision C of Division 3 of Part VI
Add:
153BAD Review of collecting society's distribution arrangement
(1) This section has effect if an application is made to the Tribunal under section 135SA for review of an arrangement adopted, or proposed to be adopted, by the collecting society for distributing amounts it collects in a period.
(2) The parties to the application are:
(a) the applicant; and
(b) the collecting society (if it is not the applicant); and
(c) a member of the collecting society, or an organization claiming to be representative of members of the collecting society, that the Tribunal makes a party to the application.
(3) The Tribunal may make a member of the collecting society, or an organization claiming to be representative of members of the collecting society, a party to the application if:
(a) the member or organization asks to be made a party; and
(b) the Tribunal is satisfied that the member or organization has a substantial interest in the arrangement.
(4) The Tribunal must consider the application, give the parties an opportunity of presenting their cases then make an order:
(a) confirming the arrangement; or
(b) varying the arrangement; or
(c) substituting for the arrangement another arrangement for distributing amounts the collecting society collects in the period.
(5) In this section:
"collecting society" has the same meaning as in Part VA.
32 At the end of Subdivision D of Division 3 of Part VI
Add:
153DE Review of collecting society's distribution arrangement
(1) This section has effect if an application is made to the Tribunal under section 135ZZEA for review of an arrangement adopted, or proposed to be adopted, by a collecting society for distributing amounts it collects in a period.
(2) The parties to the application are:
(a) the applicant; and
(b) the collecting society (if it is not the applicant); and
(c) a member of the collecting society, or an organization claiming to be representative of members of the collecting society, that the Tribunal makes a party to the application.
(3) The Tribunal may make a member of the collecting society, or an organization claiming to be representative of members of the collecting society, a party to the application if:
(a) the member or organization asks to be made a party; and
(b) the Tribunal is satisfied that the member or organization has a substantial interest in the arrangement.
(4) The Tribunal must consider the application, give the parties an opportunity of presenting their cases then make an order:
(a) confirming the arrangement; or
(b) varying the arrangement; or
(c) substituting for the arrangement another arrangement for distributing amounts the collecting society collects in the period.
(5) In this section:
"collecting society" has the same meaning as in Part VB.
33 At the end of Subdivision E of Division 3 of Part VI
Add:
153KA Review of collecting society's distribution arrangement
(1) This section has effect if an application is made to the Tribunal under section 183F for review of an arrangement adopted, or proposed to be adopted, by a collecting society for distributing amounts it collects in a period.
(2) The parties to the application are:
(a) the applicant; and
(b) the collecting society (if it is not the applicant); and
(c) a member of the collecting society, or an organization claiming to be representative of members of the collecting society, that the Tribunal makes a party to the application.
(3) The Tribunal may make a member of the collecting society, or an organization claiming to be representative of members of the collecting society, a party to the application if:
(a) the member or organization asks to be made a party; and
(b) the Tribunal is satisfied that the member or organization has a substantial interest in the arrangement.
(4) The Tribunal must consider the application, give the parties an opportunity of presenting their cases then make an order:
(a) confirming the arrangement; or
(b) varying the arrangement; or
(c) substituting for the arrangement another arrangement for distributing amounts the collecting society collects in the period.
(5) In this section:
"collecting society" has the same meaning as in Division 2 of Part VII.
34 At the end of Subdivision G of Division 3 of Part VI
Add:
153R Review of collecting society's distribution arrangement
(1) This section has effect if an application is made to the Tribunal under section 135ZZWA for review of an arrangement adopted, or proposed to be adopted, by a collecting society for distributing amounts it collects in a period.
(2) The parties to the application are:
(a) the applicant; and
(b) the collecting society (if it is not the applicant); and
(c) a member of the collecting society, or an organization claiming to be representative of members of the collecting society, that the Tribunal makes a party to the application.
(3) The Tribunal may make a member of the collecting society, or an organization claiming to be representative of members of the collecting society, a party to the application if:
(a) the member or organization asks to be made a party; and
(b) the Tribunal is satisfied that the member or organization has a substantial interest in the arrangement.
(4) The Tribunal must consider the application, give the parties an opportunity of presenting their cases then make an order:
(a) confirming the arrangement; or
(b) varying the arrangement; or
(c) substituting for the arrangement another arrangement for distributing amounts the collecting society collects in the period.
(5) In this section:
"collecting society" has the same meaning as in Part VC.
35 At the end of Division 2 of Part VII
Add:
183F Applying to Tribunal for review of distribution arrangement
(1) A collecting society or a member of a collecting society may apply to the Copyright Tribunal for review of the arrangement adopted, or proposed to be adopted, by the collecting society for distributing amounts it collects in a period.
(2) If the Tribunal makes an order under section 153KA varying the arrangement or substituting for it another arrangement, the arrangement reflecting the Tribunal's order has effect as if it had been adopted in accordance with the collecting society's rules, but does not affect a distribution started before the order was made.
Part 3 -- Manner of paying royalty for copying musical works
36 Subparagraph 55(1)(d)(ii)
Repeal the subparagraph, substitute:
(ii) the prescribed royalty is paid to the owner of the copyright in the manner agreed between the manufacturer and the owner of the copyright or, failing such agreement, determined by the Copyright Tribunal under section 152B.
37 Application
Subparagraph 55(1)(d)(ii) of the Copyright Act 1968 as amended by this Part applies to an agreement about the manner of payment of a prescribed royalty whether the agreement was made before, on or after the commencement of this Part.
38 Subsection 59(5)
Repeal the subsection.
39 After subsection 135K(2)
Insert:
(2A) A matter that:
(a) relates to an activity required by paragraph (1)(b), (c) or (d); and
(b) needs, or is convenient, to be determined; and
(c) is not determined by subsection (1) or (2) or regulations made for the purposes of paragraph (1)(b), (c) or (d) or (2)(a) or (b);
is to be determined by agreement between the administering body and the collecting society or, failing such agreement, the Copyright Tribunal on the application of either of them.
(2B) Sections 135E and 135F do not apply to a copy of a broadcast, or a communication of a copy of a broadcast, made by or on behalf of the administering body during a period in which:
(a) an agreement, or an order of the Copyright Tribunal, determining a matter described in subsection (2A) is in force; and
(b) the body does not comply with the agreement or order.
Note 1: The following heading to subsection 135K(1) is inserted " If records notice is given ".
Note 2: The following heading to subsection 135K(3) is inserted " If sampling notice is given ".
40 Application
(1) The amendment of section 135K of the Copyright Act 1968 made by this Part applies in relation to a records notice given on or after the commencement of the amendment.
(2) The amendment also applies in relation to a records notice given by or on behalf of an administering body before that commencement, if the body and the collecting society make an agreement determining a matter described in subsection 135K(2A) of the Copyright Act 1968 . In that case, the amendment applies at and after the time the agreement comes into force.
Note: While the amendment does not apply, section 135K of the Copyright Act 1968 , as in force before the commencement of the amendment, applies.
(3) In this item:
administering body has the meaning given by section 135A of the Copyright Act 1968 .
collecting society has the meaning given by section 135A of the Copyright Act 1968 .
records notice has the meaning given by section 135A of the Copyright Act 1968 .
41 After subsection 135ZX(2)
Insert:
(2A) A matter that:
(a) relates to an activity required by paragraph (1)(b), (c) or (d); and
(b) needs, or is convenient, to be determined; and
(c) is not determined by subsection (1) or (2) or regulations made for the purposes of paragraph (1)(b), (c) or (d) or (2)(a) or (b);
is to be determined by agreement between the administering body and the collecting society or, failing such agreement, the Copyright Tribunal on the application of either of them.
(2B) Sections 135ZJ, 135ZK, 135ZL, 135ZMC, 135ZMD, 135ZMDA, 135ZP and 135ZS do not apply to a reproduction or copy of a work or other subject‑matter made in hardcopy form or analog form by or on behalf of the administering body during a period in which:
(a) an agreement, or an order of the Copyright Tribunal, determining a matter described in subsection (2A) is in force; and
(b) the body does not comply with the agreement or order.
Note 1: The following heading to subsection 135ZX(1) is inserted " If records notice is given ".
Note 2: The following heading to subsection 135ZX(3) is inserted " If sampling notice is given ".
Note 3: The following heading to subsection 135ZX(4) is inserted " Regulations relevant to records notices and sampling notices ".
42 Application
(1) The amendment of section 135ZX of the Copyright Act 1968 made by this Part applies in relation to a records notice given on or after the commencement of the amendment.
(2) The amendment also applies in relation to a records notice given by or on behalf of an administering body before that commencement, if the body and the relevant collecting society make an agreement determining a matter described in subsection 135ZX(2A) of the Copyright Act 1968 . In that case, the amendment applies at and after the time the agreement comes into force.
Note: While the amendment does not apply, section 135ZX of the Copyright Act 1968 , as in force before the commencement of the amendment, applies.
(3) In this item:
administering body has the meaning given by section 135ZB of the Copyright Act 1968 .
records notice has the meaning given by section 135ZB of the Copyright Act 1968 .
relevant collecting society has the meaning given by section 135ZB of the Copyright Act 1968 .
43 After section 153BA
Insert:
153BAA Application to the Tribunal under subsection 135K(2A)
(1) The parties to an application to the Tribunal under subsection 135K(2A) for the determination of a matter are the collecting society and the administering body concerned.
(2) If an application is made to the Tribunal under subsection 135K(2A) for the determination of a matter, the Tribunal must consider the application and, after giving the parties to the application an opportunity of presenting their cases, must make an order determining the matter.
(3) In determining a matter described in subsection 135K(2A), the Tribunal must have regard to such matters (if any) as are prescribed.
(4) In this section:
"administering body" has the same meaning as in Part VA.
"collecting society" has the same meaning as in Part VA.
44 After section 153DA
Insert:
153DB Application to the Tribunal under subsection 135ZX(2A)
(1) The parties to an application to the Tribunal under subsection 135ZX(2A) for the determination of a matter are the relevant collecting society and the administering body concerned.
(2) If an application is made to the Tribunal under subsection 135ZX(2A) for the determination of a matter, the Tribunal must consider the application and, after giving the parties to the application an opportunity of presenting their cases, must make an order determining the matter.
(3) In determining a matter described in subsection 135ZX(2A), the Tribunal must have regard to such matters (if any) as are prescribed.
(4) In this section:
"administering body" has the same meaning as in Part VB.
"relevant collecting society" has the same meaning as in Part VB.
Part 5 -- Alternative dispute resolution
55 Subsection 10(1)
Insert:
"alternative dispute resolution processes" means procedures and services for the resolution of disputes, and includes:
(a) conferencing; and
(b) mediation; and
(c) neutral evaluation; and
(d) case appraisal; and
(e) conciliation; and
(f) procedures or services specified in the regulations;
but does not include:
(g) arbitration; or
(h) court procedures or services.
Paragraphs (b) to (f) of this definition do not limit paragraph (a) of this definition.
56 After Division 4 of Part VI
Insert:
Division 4A -- Alternative dispute resolution processes
169A Referral of proceeding for alternative dispute resolution process
(1) If an application or reference is made to the Tribunal, the President or a Deputy President may:
(a) direct the holding of a conference of the parties or their representatives in relation to the proceeding, or any part of the proceeding or any matter arising out of the proceeding; or
(b) direct that the proceeding, or any part of the proceeding or any matter arising out of the proceeding, be referred for a particular alternative dispute resolution process (other than conferencing).
(2) The President may also direct the holding of conferences of the parties or their representatives in the case of applications or references made to the Tribunal that are of a kind specified in the direction.
(3) The President may also direct that proceedings be referred for a particular alternative dispute resolution process (other than conferencing) in the case of applications or references made to the Tribunal that are of a kind specified in the direction.
(4) A direction may be given under a particular paragraph of subsection (1):
(a) whether or not a direction has previously been given under the same or the other paragraph of that subsection in relation to the proceeding; and
(b) whether or not a direction under subsection (2) or (3) has applied.
(5) If a direction under this section is applicable to:
(a) a proceeding; or
(b) a part of a proceeding; or
(c) a matter arising out of a proceeding;
each party must act in good faith in relation to the conduct of the alternative dispute resolution process concerned.
169B Directions by President or Deputy President
(1) The President or a Deputy President may give directions about alternative dispute resolution processes.
(2) Directions under subsection (1) may relate to:
(a) the procedure to be followed in the conduct of an alternative dispute resolution process; and
(b) the person who is to conduct an alternative dispute resolution process; and
(c) the procedure to be followed when an alternative dispute resolution process ends.
(3) Subsection (2) does not limit subsection (1).
(4) The President or a Deputy President may at any time vary or revoke a direction under subsection (1).
(5) A person is not entitled to conduct an alternative dispute resolution process unless the person is:
(a) a member; or
(b) the Registrar; or
(c) a person whose services are made available, under an arrangement made by the Registrar and the Registrar of the Federal Court of Australia, to conduct the process; or
(d) a person engaged under section 169G.
169C Agreement about the terms of a decision etc.
(1) If:
(a) in the course of an alternative dispute resolution process under this Division, agreement is reached between the parties or their representatives as to the terms of a decision of the Tribunal:
(i) in the proceeding; or
(ii) in relation to the part of the proceeding; or
(iii) in relation to the matter arising out of the proceeding;
that would be acceptable to the parties; and
(b) the terms of the agreement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and
(c) 7 days pass after lodgment, and none of the parties has notified the Tribunal in writing that he or she wishes to withdraw from the agreement; and
(d) the Tribunal is satisfied that a decision in the terms of the agreement or consistent with those terms would be within the powers of the Tribunal;
the Tribunal may, if it appears to it to be appropriate to do so, act in accordance with whichever of subsection (2) or (3) is relevant in the particular case.
(2) If the agreement reached is an agreement as to the terms of a decision of the Tribunal in the proceeding, the Tribunal may, without giving the parties an opportunity of presenting their cases, make a decision in accordance with those terms.
(3) If the agreement relates to:
(a) a part of the proceeding; or
(b) a matter arising out of the proceeding;
the Tribunal may, in its decision in the proceeding, give effect to the terms of the agreement without giving the parties an opportunity of presenting their cases so far as they relate only to the part or matter to which the agreement relates.
(1) Evidence of anything said, or any act done, at an alternative dispute resolution process under this Division is not admissible:
(a) in any court; or
(b) in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory to hear evidence; or
(c) in any proceedings before a person authorised by the consent of the parties to hear evidence.
Exceptions
(2) Subsection (1) does not apply so as to prevent the admission, at the hearing of a proceeding before the Tribunal, of particular evidence if the parties agree to the evidence being admissible at the hearing.
(3) Subsection (1) does not apply so as to prevent the admission, at the hearing of a proceeding before the Tribunal, of:
(a) a case appraisal report prepared by a person conducting an alternative dispute resolution process under this Division; or
(b) a neutral evaluation report prepared by a person conducting an alternative dispute resolution process under this Division;
unless a party to the proceeding notifies the Tribunal before the hearing that he or she objects to the report being admissible at the hearing.
If:
(a) an alternative dispute resolution process under this Division in relation to a proceeding is conducted by a member of the Tribunal; and
(b) a party (the objector ) to the proceeding notifies the Tribunal, before any party to the proceeding is given an opportunity of presenting its case, that the objector objects to that member participating in the proceeding;
that member is not entitled to be a member of the Tribunal as constituted for the purposes of the proceeding.
169F Participation by telephone etc.
The person conducting an alternative dispute resolution process under this Division may allow a person to participate by:
(a) telephone; or
(b) closed‑circuit television; or
(c) any other means of communication.
169G Engagement of persons to conduct alternative dispute resolution processes
(1) The Registrar may, on behalf of the Commonwealth, engage persons as consultants to conduct one or more kinds of alternative dispute resolution processes under this Division.
(2) The Registrar must not engage a person under subsection (1) unless the Registrar is satisfied, having regard to the person's qualifications and experience, that the person is a suitable person to conduct the relevant kind or kinds of alternative dispute resolution processes under this Division.
57 Application
Division 4A of Part VI of the Copyright Act 1968 applies in relation to applications and references made to the Copyright Tribunal on or after the commencement of the Division.
58 After subsection 171(1)
Insert:
(1A) An alternative dispute resolution practitioner has, in the performance of his or her duties as an alternative dispute resolution practitioner under this Act, the same protection and immunity as a Justice of the High Court.
59 At the end of section 171
Add:
(4) In this section:
"alternative dispute resolution practitioner" means a person who conducts an alternative dispute resolution process under Division 4A.
Part 6 -- Determination of questions relating to Parts VA and VB
60 After section 135J
Insert:
135JAA Determination of questions relating to this Division or the collecting society's rules
(1) This section applies if:
(a) it is necessary or convenient to determine a question to facilitate future compliance by an administering body or the collecting society with this Division or the provisions of the collecting society's rules described in paragraph 135P(3)(d); and
(b) the question is not determined by another provision of this Part or regulations made for the purposes of this Part; and
(c) determination of the question affects both the administering body and the collecting society.
Note: An example of such a question might be whether there should be a particular sampling system to provide information to enable the collecting society to determine how to distribute amounts it collects.
(2) The question must be determined by agreement between the collecting society and the administering body or, failing such agreement, by the Tribunal on the application of either of them.
(3) If, during a period, the administering body does not comply with the agreement or order of the Tribunal determining the question, sections 135E and 135F do not apply to a copy of a broadcast, or communication of a copy of a broadcast, made by or on behalf of the administering body during the period.
61 After section 135ZW
Insert:
135ZWAA Determination of questions relating to this Part or a collecting society's rules
(1) This section applies if:
(a) it is necessary or convenient to determine a question to facilitate future compliance by an administering body or a collecting society with:
(i) section 135ZJ, 135ZK, 135ZL, 135ZMC, 135ZMD, 135ZMDA, 135ZP, 135ZQ, 135ZS or 135ZT; or
(ii) this Division; or
(iii) the provisions of a collecting society's rules described in paragraph 135ZZB(3)(d); and
(b) the question is not determined by another provision of this Part or regulations made for the purposes of this Part; and
(c) determination of the question affects both the administering body and the collecting society.
Note: An example of such a matter might be a sampling system to provide information to enable a collecting society to determine how to distribute amounts it collects.
(2) The question must be determined by agreement between the collecting society and the administering body or, failing such agreement, by the Tribunal on the application of either of them.
(3) If, during a period, the administering body does not comply with the agreement or order of the Tribunal determining the question, sections 135ZJ, 135ZK, 135ZL, 135ZMC, 135ZMD, 135ZMDA, 135ZP, 135ZQ, 135ZS and 135ZT do not apply to a reproduction, copy or communication of a work or other subject‑matter made during that period by or on behalf of the administering body.
62 After section 153B
Insert:
153BAAA Application to the Tribunal under subsection 135JAA(2)
(1) The parties to an application to the Tribunal under subsection 135JAA(2) for the determination of a question are the collecting society and the administering body concerned.
(2) If an application is made to the Tribunal under subsection 135JAA(2), the Tribunal must consider the application and, after giving the parties to the application an opportunity of presenting their cases, must make an order determining the question.
(3) In determining the question, the Tribunal must have regard to such matters (if any) as are prescribed.
(4) In this section:
"administering body" has the same meaning as in Part VA.
"collecting society" has the same meaning as in Part VA.
63 After section 153D
Insert:
153DAA Application to the Tribunal under subsection 135ZWAA(2)
(1) The parties to an application to the Tribunal under subsection 135ZWAA(2) for the determination of a question are the collecting society and the administering body concerned.
(2) If an application is made to the Tribunal under subsection 135ZWAA(2), the Tribunal must consider the application and, after giving the parties to the application an opportunity of presenting their cases, must make an order determining the question.
(3) In determining the question, the Tribunal must have regard to such matters (if any) as are prescribed.
(4) In this section:
"administering body" has the same meaning as in Part VB.
"collecting society" has the same meaning as in Part VB.