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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Commonwealth Games Arrangements
(Governance) Act 2003
Victorian Legislation and Parliamentary Documents
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purposes 1
2. Commencement 2
3. Principal Act 2
PART 2--GOVERNANCE 3
4. Section 1 amended 3
5. Definitions 3
6. New section 4A inserted 4
4A. Extraterritorial operation 4
7. New Part 1A inserted 4
PART 1A--MELBOURNE 2006 COMMONWEALTH
GAMES CORPORATION 4
Division 1--Preliminary 4
4B. Objective of Part 4
Division 2--Melbourne 2006 Commonwealth Games
Corporation 5
4C. Melbourne 2006 Commonwealth Games Corporation
established 5
4D. Corporation does not represent Crown 6
4E. Functions of Corporation 6
4F. Corporation to carry out functions in accordance with
contractual arrangements and obligations 7
4G. Powers of Corporation 7
4H. Delegation 8
4I. Borrowing and investment powers 8
Division 3--Board of Directors of Corporation 8
4J. Membership of Board 8
4K. Responsibilities of Board 9
4L. Board to provide information to Minister 9
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4M. Directions to Board 9
4N. Duties of directors of the Board 10
4O. Corporation or Minister may bring proceedings 11
Victorian Legislation and Parliamentary Documents
4P. Corporation not to make loans to directors 11
4Q. Indemnity 12
4R. Committees 12
4S. Immunity 13
4T. Chief executive officer 13
4U. Other staff 14
4V. Directors of M2006 transferred to Board 14
8. New Part 1B inserted 15
PART 1B--TRANSFERS 15
4W. Definitions 15
4X. Transfer of assets and liabilities from M2006 to
Corporation 16
4Y. Corporation becomes successor in law of M2006 on
dissolution date 17
4Z. Substitution of party to agreement 17
4ZA. Former instruments 18
4ZB. Interests in land 18
4ZC. Amendment of Register 18
4ZD. Taxes 19
4ZE. Evidence 19
4ZF. Validity of things done under this Part 19
4ZG. Transfer of staff 20
4ZH. Future terms and conditions of transferred employees 21
9. Schedule 2 inserted 22
SCHEDULE 2--Membership and Procedure of Board 22
10. Amendment of the Borrowing and Investment Powers Act
1987 30
PART 3--COMMONWEALTH GAMES COMMERCIAL
ARRANGEMENTS 31
11. Definitions 31
12. New Part 5A inserted 35
PART 5A--COMMONWEALTH GAMES
COMMERCIAL ARRANGEMENTS 35
Division 1--Other Rights Not Affected 35
56A. Part does not derogate from other rights 35
56B. Part does not affect rights relating to use of business or
company names 35
56C. Part does not affect rights in respect of passing off 36
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Clause Page
Division 2--Authorising Use of Games Related Indicia or
Images and Other Indicia or Images 37
56D. Corporation may authorise use of Games related indicia
Victorian Legislation and Parliamentary Documents
or images 37
56E. ACGA may authorise use of ACGA indicia or images 37
56F. CGF may authorise use of CGF indicia or images 37
56G. Minister may authorise non-commercial use of
Commonwealth Games references 37
56H. Notification of authorisations by other entities 38
56I. What can an authorisation contain? 38
56J. Register of authorisations 40
56K. Use of Commonwealth Games references which do not
need authorisation 41
Division 3--Enforcement 43
56L. Offence to engage in conduct that suggests sponsorship,
approval or affiliation 43
56M. Offence to use Games related indicia or images without
authorisation 44
56N. Offence to use ACGA indicia or images without
authorisation 45
56O. Offence to use CGF indicia or images without
authorisation 46
56P. Injunctions 46
56Q. Power to rescind or vary injunctions 48
56R. Power of court to require corrective advertising 49
56S. Actions for damages 50
56T. Account of profits 51
56U. No entitlement to both damages and account of profits 52
56V. Seizure of goods and advertising material during goods
seizure period 52
56W. Seized goods or advertising material to be given to
Office of Commonwealth Games Coordination 53
56X. Voluntary forfeiture to Crown 54
56Y. Recovery of seized goods or advertising material and
compensation 55
56Z. Meaning of marked with indicia or images 57
56ZA. Court may order forfeiture to the Crown 57
56ZB. Offences by corporations and partnerships etc. 58
13. Section 57 substituted 59
57. Regulations 59
14. Expiry 60
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Clause Page
15. Schedules 3 and 4 inserted 61
SCHEDULE 3--ACGA Logo and CGF Logo 61
Victorian Legislation and Parliamentary Documents
SCHEDULE 4--Commonwealth Games Logos 62
ENDNOTES 68
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PARLIAMENT OF VICTORIA
Initiated in Assembly 3 June 2003
Victorian Legislation and Parliamentary Documents
A BILL
to further amend the Commonwealth Games Arrangements Act
2001 to establish the Melbourne 2006 Commonwealth Games
Corporation and provide for its functions and powers, to provide for
various matters relating to commercial arrangements and the use of
logos and other insignia and for other purposes.
Commonwealth Games Arrangements
(Governance) Act 2003
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purposes
The main purposes of this Act are to amend the
Commonwealth Games Arrangements Act
2001--
5
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(a) to establish the Melbourne 2006
Commonwealth Games Corporation and to
provide for its powers and functions; and
Victorian Legislation and Parliamentary Documents
(b) to provide for various matters relating to
commercial arrangements and the use of
5
logos and insignia for the Commonwealth
Games and events and programs associated
with the Commonwealth Games.
2. Commencement
(1) Subject to sub-section (2), this Act comes into
10
operation on a day or days to be proclaimed.
(2) If this Act does not come into operation before
1 July 2004, it comes into operation on that day.
3. Principal Act
See: In this Act, the Commonwealth Games
15 Act No.
Arrangements Act 2001 is called the Principal
57/2001
and Act.
amending
Act No.
16/2003.
LawToday:
www.dms.
dpc.vic.
gov.au
__________________
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PART 2--GOVERNANCE
Victorian Legislation and Parliamentary Documents
4. Section 1 amended
(1) In section 1(c) of the Principal Act, for "Games."
substitute "Games;".
(2) After section 1(c) of the Principal Act insert--
5
"(d) to establish the Melbourne 2006
Commonwealth Games Corporation and
provide for its powers and functions;
(e) to provide for various matters relating to the
organisation and conduct of the
10
Commonwealth Games and events and
programs associated with the
Commonwealth Games.".
5. Definitions
In section 3(1) of the Principal Act, insert the
15
following definitions--
' "ACGA" means the Australian Commonwealth
Games Association Inc.;
"ACGA director" means a director of the Board
appointed pursuant to section 4J(2)(b);
20
"Board" means the board of directors of the
Melbourne 2006 Commonwealth Games
Corporation;
"CGF" means The Commonwealth Games
Federation;
25
"CGF director" means a director of the Board
appointed pursuant to section 4J(2)(a);
"chief executive officer" means the chief
executive officer of the Corporation
employed under section 4T;
30
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"Corporation" means the Melbourne 2006
Commonwealth Games Corporation
established under Part 1A;
Victorian Legislation and Parliamentary Documents
"State director" means a director of the Board
appointed pursuant to section 4J(2)(c);'.
5
6. New section 4A inserted
After section 4 of the Principal Act insert--
"4A. Extraterritorial operation
It is the intention of the Parliament that the
operation of this Act should, as far as the
10
legislative power of the Parliament permits,
include operation in relation to acts,
transactions and matters done, entered into or
occurring outside Victoria, whether in or
outside Australia.".
15
7. New Part 1A inserted
After Part 1 of the Principal Act insert--
'PART 1A--MELBOURNE 2006
COMMONWEALTH GAMES CORPORATION
Division 1--Preliminary
20
4B. Objective of Part
The objective of this Part is to establish the
Melbourne 2006 Commonwealth Games
Corporation to plan, organise and deliver the
Commonwealth Games, together with CGF
25
and ACGA, in a manner which--
(a) delivers a high quality sporting
program for high performance athletes
of the Commonwealth of Nations; and
(b) enhances the reputation of the
30
Commonwealth Games as a major
international sporting event; and
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(c) promotes Melbourne, Victoria and
Australia; and
Victorian Legislation and Parliamentary Documents
(d) delivers social, economic and
environmental benefits to Victorians
and Australians; and
5
(e) raises the profile of the Commonwealth
of Nations by celebrating its values and
its diversity of cultures; and
(f) demonstrates a high standard of safety;
and
10
(g) demonstrates a high standard of
financial responsibility, probity and
transparency.
Division 2--Melbourne 2006 Commonwealth
Games Corporation
15
4C. Melbourne 2006 Commonwealth Games
Corporation established
(1) There is established the Melbourne 2006
Commonwealth Games Corporation.
(2) The Corporation--
20
(a) is a body corporate with perpetual
succession; and
(b) has an official seal; and
(c) may sue and be sued in its corporate
name; and
25
(d) may acquire, hold and dispose of real
and personal property; and
(e) may do and suffer all acts and things
that a body corporate may by law do
and suffer.
30
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(3) The official seal of the Corporation--
(a) must be kept as directed by the
Victorian Legislation and Parliamentary Documents
Corporation; and
(b) must only be used as authorised by the
Corporation.
5
(4) All courts must take judicial notice of the
official seal of the Corporation on a
document and, until the contrary is proved,
must presume that it was duly affixed.
4D. Corporation does not represent Crown
10
The Corporation is a public authority but
does not represent the Crown.
4E. Functions of Corporation
The functions of the Corporation are--
(a) to negotiate, enter into and agree to
15
vary agreements under which the
Commonwealth Games and events and
programs associated with the
Commonwealth Games are held;
(b) to undertake and facilitate the
20
organisation, conduct, management and
promotion of the Commonwealth
Games and events and programs
associated with the Commonwealth
Games;
25
(c) to do all other things necessary for or in
connection with the conduct and
financial and commercial management
of the Commonwealth Games and
events and programs associated with
30
the Commonwealth Games;
(d) any other functions conferred on the
Corporation by or under this Act.
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4F. Corporation to carry out functions in
accordance with contractual arrangements
and obligations
Victorian Legislation and Parliamentary Documents
In carrying out its functions, the Corporation
must do so--
5
(a) in accordance with any contractual
arrangements or obligations of the
Corporation under which the
Corporation is authorised to organise,
conduct and market the Commonwealth
10
Games; and
(b) in an efficient manner.
4G. Powers of Corporation
(1) The Corporation may do anything necessary
or convenient for or in connection with, or
15
incidental to, the performance of its
functions.
(2) Without limiting sub-section (1), the
Corporation may--
(a) enter into contracts, agreements, leases
20
and licences;
(b) acquire or dispose of real or personal
property;
(c) employ or engage staff or consultants;
(d) appoint agents and attorneys and act as
25
agent;
(e) with the approval of the Minister, after
consultation with the Treasurer, form,
or participate in the formation of, a
body corporate, association,
30
partnership, trust or other body or enter
into a joint venture with another person
or other persons.
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4H. Delegation
The Corporation, by instrument under its
Victorian Legislation and Parliamentary Documents
official seal, may delegate to a director of the
Board, the chief executive officer, an officer
or an employee of the Corporation any
5
power of the Corporation, other than this
power of delegation.
4I. Borrowing and investment powers
The Corporation has the powers conferred on
it by the Borrowing and Investment
10
Powers Act 1987.
Division 3--Board of Directors of Corporation
4J. Membership of Board
(1) There is to be a Board of the Corporation
consisting of not less than 8 directors and not
15
more than 12 directors appointed by the
Governor in Council on the recommendation
of the Minister in accordance with sub-
section (4).
(2) Of the persons appointed as directors of the
20
Board--
(a) two directors of the Board are to be the
persons nominated to the Minister by
CGF; and
(b) not more than 4 directors of the Board
25
are to be the persons nominated to the
Minister by ACGA; and
(c) not more than 6 directors of the Board
are to be persons recommended by the
Minister after consultation with ACGA.
30
(3) The number of State directors must be equal
to the total number of ACGA directors and
CGF directors.
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(4) In making a recommendation to the
Governor in Council under sub-section (1),
the Minister--
Victorian Legislation and Parliamentary Documents
(a) in the case of a person nominated to the
Minister by CGF under sub-section
5
(2)(a), must recommend the
appointment of that person; and
(b) in the case of a person nominated to the
Minister by ACGA under sub-section
(2)(b), must recommend the
10
appointment of that person.
(5) Schedule 2 has effect with respect to the
membership and procedure of the Board.
4K. Responsibilities of Board
The Board--
15
(a) is responsible for the management of
the affairs of the Corporation; and
(b) may exercise the powers of the
Corporation.
4L. Board to provide information to Minister
20
(1) The Minister may require the Board to give
the Minister such information as the Minister
reasonably requires.
(2) A requirement under sub-section (1) must be
in writing.
25
4M. Directions to Board
(1) The Minister, with the approval of the
Treasurer, may from time to time give such
directions to the Board as the Minister thinks
fit.
30
(2) A direction under sub-section (1) must be by
written notice to the Board.
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(3) The Board must comply with a direction
given under this section.
Victorian Legislation and Parliamentary Documents
(4) An act or decision of the Board is not invalid
merely because of a failure to comply with a
direction given under this section.
5
4N. Duties of directors of the Board
(1) A director of the Board must at all times act
honestly in the performance of the functions
of his or her office.
(2) A director of the Board must at all times
10
exercise a reasonable degree of care and
diligence in the performance of his or her
functions.
(3) A director of the Board or former director of
the Board must not make improper use of
15
information acquired by virtue of his or her
position as a director to gain, directly or
indirectly, an advantage for himself or
herself or for any other person or to cause
detriment to the Corporation.
20
(4) A director of the Board must not make
improper use of his or her position as a
director to gain, directly or indirectly, an
advantage for himself or herself or for any
other person or to cause detriment to the
25
Corporation.
(5) This section has effect in addition to, and not
in derogation of, any Act or law relating to
the criminal or civil liability of a member of
the governing body of a corporation and does
30
not prevent the institution of any criminal or
civil proceedings in respect of such a
liability.
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4O. Corporation or Minister may bring
proceedings
Victorian Legislation and Parliamentary Documents
(1) If a person contravenes section 4N in relation
to the Corporation, the Corporation or the
Minister, in the name of the Corporation,
5
may recover from the person as a debt due to
the Corporation by action in a court of
competent jurisdiction either or both of the
following--
(a) if that person or any other person made
10
a profit as a result of the contravention,
an amount equal to that profit;
(b) if the Corporation has suffered loss or
damage as a result of the contravention,
an amount equal to that loss or damage.
15
(2) Despite sub-section (1), the Corporation or
the Minister cannot recover under this
section if, by force of section 4S, a director
of the Board is not personally liable for a
contravention of section 4N.
20
4P. Corporation not to make loans to directors
(1) The powers of the Corporation do not
include a power, whether directly or
indirectly--
(a) to make a loan to a director of the
25
Board, a spouse of such a director or a
relative (as defined in the Corporations
Act) of such a director or spouse; or
(b) to give a guarantee or provide security
in connection with a loan made or to be
30
made by another person to a director of
the Board, spouse or relative referred to
in paragraph (a).
(2) Nothing in sub-section (1) prohibits the
Corporation entering into an agreement or
35
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arrangement with a person referred to in sub-
section (1) if similar agreements or
arrangements are entered into by the
Victorian Legislation and Parliamentary Documents
Corporation with members of the public on
the same terms and conditions.
5
4Q. Indemnity
(1) The powers of the Corporation do not
include a power to exempt, whether directly
or indirectly, a director of the Board from, or
to indemnify a director of the Board against,
10
any liability that by law would otherwise
attach to the director in respect of a wilful
breach of duty or a wilful breach of trust of
which the director may be guilty in relation
to the Corporation.
15
(2) The powers of the Corporation do not
include a power to pay, or agree to pay, a
premium in respect of a contract of insurance
insuring a director of the Board against any
liability (other than one for legal costs) that
20
by law would otherwise attach to the director
in respect of a wilful breach of duty or a
wilful breach of trust of which the director
may be guilty in relation to the Corporation.
4R. Committees
25
(1) The Board must establish the following
committees to assist it in performing its
functions--
(a) a Finance Committee;
(b) a Risk Management and Audit
30
Committee;
(c) a Sports and Technical Committee;
(d) a Senior Appointments and
Remuneration Committee.
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(2) The Board may establish any other
committee as determined from time to time
to be required by the Board to assist it in
Victorian Legislation and Parliamentary Documents
performing any of its functions.
(3) The membership and functions of any
5
committee established by the Board are to be
determined by the Board.
(4) Except as otherwise determined by the
Board, the procedure of any committee
established by the Board is to be determined
10
by the committee.
4S. Immunity
(1) A director of the Board is not personally
liable for anything necessarily or reasonably
done or omitted to be done in good faith--
15
(a) in the exercise of a power or the
performance of a function or duty under
this Act or the regulations; or
(b) in the reasonable belief that the act or
omission was in the exercise of a power
20
or the performance of a function or
duty under this Act or the regulations.
(2) Any liability resulting from an act or
omission that, but for sub-section (1), would
attach to a director of the Board, attaches
25
instead to the Corporation.
4T. Chief executive officer
(1) The Corporation may employ a person as the
chief executive officer of the Corporation.
(2) Subject to this Act, the chief executive
30
officer holds office for the period and on the
terms and conditions determined by the
Corporation.
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4U. Other staff
(1) The Corporation may employ such officers
Victorian Legislation and Parliamentary Documents
and employees as are necessary for the
performance of its functions.
(2) The terms and conditions of employment are
5
as determined by the Corporation.
4V. Directors of M2006 transferred to Board
(1) On the commencement of section 7 of the
Commonwealth Games Arrangements
(Governance) Act 2003, any person who
10
was a director of M2006 immediately before
that commencement--
(a) is deemed to be appointed to the Board
as a director of that Board appointed in
accordance with this Act; and
15
(b) in the case of a person who, before that
commencement, was appointed as a
director of M2006 by CGF, is deemed
to be appointed as a CGF director
pursuant to section 4J(2)(a); and
20
(c) in the case of a person who, before that
commencement, was appointed as a
director of M2006 by ACGA, is
deemed to be appointed as an ACGA
director pursuant to section 4J(2)(b);
25
and
(d) in the case of a person who, before that
commencement, was appointed as a
director of M2006 by the Premier or the
Premier's nominee, is deemed to be
30
appointed as a State director pursuant to
section 4J(2)(c).
(2) On the commencement of section 7 of the
Commonwealth Games Arrangements
(Governance) Act 2003--
35
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(a) the person who was the Chairperson of
M2006 immediately before that
commencement is deemed to be the
Victorian Legislation and Parliamentary Documents
Chairperson of the Board appointed in
accordance with this Act; and
5
(b) the person who was the Deputy
Chairperson of M2006 immediately
before that commencement is deemed
to be the Deputy Chairperson of the
Board appointed in accordance with
10
this Act.
(3) In this section, "M2006" means Melbourne
2006 Commonwealth Games Pty Ltd,
ACN 088 659 705.'.
8. New Part 1B inserted
15
Before Part 2 of the Principal Act insert--
'PART 1B--TRANSFERS
4W. Definitions
In this Part--
"dissolution date" means the date of the
20
final winding up of M2006 under the
Corporations Act or the date of the
deregistration of M2006 under the
Corporations Act (whichever first
occurs);
25
"former M2006 property" means property,
rights or liabilities of M2006 that,
under this Part, have vested in, or
become liabilities of, the Corporation;
"former M2006 instrument" means an
30
instrument (including a legislative
instrument other than this Act) or an
oral agreement subsisting immediately
before the relevant date--
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(a) to which M2006 was a party; or
(b) that was given to, or in favour of,
Victorian Legislation and Parliamentary Documents
M2006; or
(c) that refers to M2006; or
(d) under which--
5
(i) money is, or may become,
payable to M2006; or
(ii) other property is to be, or
may become liable to be,
transferred to or by
10
M2006--
but does not include a transfer
agreement;
"M2006" means Melbourne 2006
Commonwealth Games Pty Ltd,
15
ACN 088 659 705;
"relevant date" means the date that
section 8 of the Commonwealth
Games Arrangements (Governance)
Act 2003 comes into operation;
20
"transfer agreement" means an agreement
entered into, whether before or after the
relevant date, for the purpose of
transferring, confirming or further
assuring the transfer of property, rights,
25
assets or liabilities of M2006 to the
Corporation which are not able to be
transferred by virtue of this Part.
4X. Transfer of assets and liabilities from
M2006 to Corporation
30
(1) On the relevant date--
(a) all property, rights and assets of M2006
are by virtue of this Part vested in the
Corporation; and
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(b) all liabilities of M2006 are by virtue of
this Part liabilities of the Corporation.
Victorian Legislation and Parliamentary Documents
(2) Without limiting the generality of sub-
section (1), where, immediately before the
relevant date--
5
(a) M2006 was acting in any capacity, the
Corporation may, from the relevant
date, act in that capacity;
(b) proceedings to which M2006 was a
party were pending or existing in any
10
court or tribunal, from the relevant date,
the Corporation is substituted for
M2006 as a party to the proceedings
and has the same rights in the
proceedings as M2006 had.
15
4Y. Corporation becomes successor in law of
M2006 on dissolution date
On the dissolution date--
(a) the Corporation is the successor in law
of M2006; and
20
(b) any outstanding or residual property,
rights, assets or liabilities of M2006
existing at the dissolution date are
vested in the Corporation by virtue of
this section.
25
4Z. Substitution of party to agreement
(1) Subject to sub-section (2), where the rights
and liabilities of M2006 under an agreement
are transferred to the Corporation by virtue
of this Part--
30
(a) the Corporation becomes, on the
relevant date, a party to the agreement
in place of M2006; and
17
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(b) on and after the relevant date, the
agreement has effect as if the
Corporation had always been a party to
Victorian Legislation and Parliamentary Documents
the agreement.
(2) Sub-section (1) does not apply to a transfer
5
agreement.
4ZA. Former instruments
Each former M2006 instrument relating to
former M2006 property continues to have
effect according to its tenor on and after the
10
relevant date in relation to that property as if
a reference in the instrument to M2006 were
a reference to the Corporation.
4ZB. Interests in land
Without prejudice to the generality of this
15
Part and despite anything to the contrary in
any other Act or law if, immediately before
the relevant date, M2006 is, in relation to
former M2006 property, the registered
proprietor of an interest in land under the
20
Transfer of Land Act 1958, then on and
after that date--
(a) the Corporation is to be taken to be the
registered proprietor of that interest in
land; and
25
(b) the Corporation has the same rights and
remedies in respect of that interest as
M2006 had.
4ZC. Amendment of Register
The Registrar of Titles, on being requested to
30
do so and on delivery of any relevant
certificate of title or instrument, must make
any amendments in the Register that are
necessary because of the operation of this
Part.
35
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4ZD. Taxes
No stamp duty or other tax is chargeable
Victorian Legislation and Parliamentary Documents
under any Act in respect of anything effected
by or done under this Part or in respect of
any act or transaction connected with or
5
necessary to be done by reason of this Part,
including a transaction entered into or an
instrument made, executed, lodged or given,
for the purpose of, or connected with the
transfer of property, rights or liabilities of
10
M2006 to the Corporation.
4ZE. Evidence
(1) Documentary or other evidence that would
have been admissible for or against the
interests of M2006 in relation to former
15
M2006 property if this Part had not been
enacted is admissible for or against the
interests of the Corporation.
(2) Division 3A of Part III of the Evidence Act
1958 continues to apply with respect to the
20
books of account of M2006 and to entries
made in those books of account before the
relevant date, whether or not they relate to
former M2006 property.
4ZF. Validity of things done under this Part
25
Nothing effected or to be effected by this
Part or done or suffered under this Part--
(a) is to be regarded as placing any person
in breach of contract or confidence or
as otherwise making any person guilty
30
of a civil wrong; or
(b) is to be regarded as placing any person
in breach of, or as constituting a default
under, any Act or other law or
obligation or any provision in any
35
agreement, arrangement or
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understanding including, but not
limited to, any provision or obligation
prohibiting, restricting or regulating the
Victorian Legislation and Parliamentary Documents
assignment, transfer, sale or disposal of
any property or the disclosure of any
5
information; or
(c) is to be regarded as fulfilling any
condition that allows a person to
exercise a power, right or remedy in
respect of or to terminate any
10
agreement or obligation; or
(d) is to be regarded as giving rise to any
remedy for a party to a contract or an
instrument or as causing or permitting
the termination of any contract or
15
instrument because of a change in the
beneficial or legal ownership of any
asset, right or liability; or
(e) is to be regarded as causing any
contract or instrument to be void or
20
otherwise unenforceable; or
(f) is to be regarded as frustrating any
contract; or
(g) releases any surety or other obligor
wholly or in part from any obligation.
25
4ZG. Transfer of staff
(1) A person who is the chief executive officer
of M2006 (by whatever title called) or an
officer or employee of M2006 immediately
before the relevant date is to be regarded, on
30
and from that date--
(a) as being employed by the Corporation
with effect from the relevant date; and
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(b) as being employed on the same terms
and conditions as those that applied to
the person, immediately before the
Victorian Legislation and Parliamentary Documents
relevant date, as the chief executive
officer or an officer or employee of
5
M2006 (as the case requires); and
(c) as having accrued an entitlement to
benefits, in connection with that
employment by the Corporation, that is
equivalent to the entitlement that the
10
person had accrued, as the chief
executive officer or an officer or
employee of M2006, immediately
before the relevant date.
(2) The service of the chief executive officer of
15
M2006 or an officer or employee of M2006
transferred by virtue of this Part as the chief
executive officer or an officer or employee
of the Corporation is to be regarded for all
purposes as having been continuous with the
20
service of that person, immediately before
the relevant date, as the chief executive
officer or an officer or employee of M2006
(as the case requires).
(3) A person transferred by virtue of this Part is
25
not entitled to receive any payment or other
benefit by reason only of having ceased to be
the chief executive officer or an officer or
employee of M2006 because of this Part.
4ZH. Future terms and conditions of transferred
30
employees
Nothing in section 4ZG prevents--
(a) any of the terms and conditions of
employment of a person transferred by
virtue of this Part from being altered by
35
or under any law, award or agreement
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with effect from any time after the
relevant date; or
Victorian Legislation and Parliamentary Documents
(b) a person transferred by virtue of this
Part from resigning or being dismissed
at any time after the relevant date in
5
accordance with the then existing terms
and conditions of his or her
employment by the Corporation.'.
9. Schedule 2 inserted
After Schedule 1 to the Principal Act insert--
10
'SCHEDULE 2
MEMBERSHIP AND PROCEDURE OF BOARD
1. Terms of appointment of directors of the Board
(1) A director of the Board holds office for the
15 period specified in his or her instrument of
appointment.
(2) A director of the Board is eligible for re-
appointment.
(3) The instrument of appointment of a director of
20 the Board may specify terms and conditions of
appointment as determined by the Minister.
(4) The Public Sector Management and
Employment Act 1998 does not apply to a
director of the Board in respect of the office of
25 director.
2. Chairperson of Board
(1) The Chairperson of the Board is a State director
selected from time to time as the Chairperson
by the Board.
30 (2) A person selected as Chairperson ceases to hold
that office on ceasing to be a director of the
Board.
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3. Deputy Chairperson
(1) The Deputy Chairperson of the Board is--
Victorian Legislation and Parliamentary Documents
(a) the President of ACGA, if the President
of ACGA is a director of the Board; or
5 (b) if the President of ACGA is not a director
of the Board, an ACGA director selected
from time to time as Deputy Chairperson
by a majority of ACGA directors.
(2) The Deputy Chairperson ceases to hold that
10 office on ceasing to be a director of the Board.
4. Appointment of alternate directors
(1) ACGA, by instrument, may nominate a person
as an alternate ACGA director and the Minister,
by instrument, must appoint that person as an
15 alternate ACGA director.
(2) CGF, by instrument, may nominate a person as
an alternate CGF director and the Minister, by
instrument, must appoint that person as an
alternate CGF director.
20 (3) The Minister, after consultation with ACGA, by
instrument may appoint a person as an alternate
State director.
(4) An alternate director may, but need not, be a
director of the Board in his or her own right.
25 (5) One person may be appointed and act as
alternate director for more than one director of
the Board.
(6) An appointment of an alternate director is--
(a) for the period specified in his or her
30 instrument of appointment; and
(b) subject to any other terms and conditions,
not inconsistent with this Act, that are
specified in his or her instrument of
appointment.
35 (7) An alternate director is eligible for re-
appointment.
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(8) The office of an alternate director is vacated if
and when the director of the Board that the
alternate director represents vacates office as a
Victorian Legislation and Parliamentary Documents
director of the Board.
5 (9) Subject to sub-clause (10), the Minister may
terminate the appointment of an alternate
director at any time even though the period of
the appointment of the alternate director has not
expired.
10 (10) The Minister must not terminate the
appointment of an alternate CGF director or an
alternate ACGA director without--
(a) in the case of an alternate CGF director, a
written request to the Minister from CGF
15 to terminate the appointment of that
alternate director; and
(b) in the case of an alternate ACGA
director, a written request to the Minister
from ACGA to terminate the
20 appointment of that alternate director.
5. Powers of alternate directors
(1) If a director of the Board is absent from duty or,
for any reason, is unable to attend a meeting of
the Board or perform any other duty of the
25 office of director, his or her alternate--
(a) may act in the place of the director; and
(b) while so acting, has all the powers, and
may perform all the functions and duties,
of the director and is to be taken to be a
30 director of the Board.
(2) An alternate director who is also a director of
the Board in his or her own right is entitled to a
separate vote for each director of the Board that
the alternate director represents in addition to
35 any vote the alternate director may have as a
director of the Board in his or her own right.
(3) An alternate director, while acting as a director
of the Board, is responsible to the Corporation
for his or her own acts and defaults and is not to
40 be taken to be the agent of the director of the
Board for whom he or she is the alternate
director.
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6. Resignation and removal of directors of Board
(1) A director of the Board may resign the office of
director by writing signed by the director and
Victorian Legislation and Parliamentary Documents
addressed to the Governor in Council.
5 (2) Subject to sub-clause (3), the Governor in
Council, on the recommendation of the
Minister, may at any time remove a director of
the Board from office.
(3) The Minister must not recommend the removal
10 of a CGF director or an ACGA director from
the Board without--
(a) in the case of a CGF director, a written
request to the Minister from CGF to
remove that director; and
15 (b) in the case of an ACGA director, a
written request to the Minister from
ACGA to remove that director.
7. Vacancies in membership of Board
(1) A director's office becomes vacant--
20 (a) on the expiry of his or her term of office;
or
(b) if he or she resigns from office; or
(c) if he or she is removed from office; or
(d) if he or she is convicted of an indictable
25 offence or an offence that, if committed
in Victoria, would be an indictable
offence; or
(e) if he or she becomes an insolvent under
administration within the meaning of the
30 Corporations Act; or
(f) if he or she, without the Board's
approval, fails to attend 3 consecutive
meetings of the Board.
(2) If a director of the Board resigns, is removed
35 from office or his or her office otherwise
becomes vacant, the Governor in Council, in
accordance with this Act, may fill the vacant
office.
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8. Validity of decisions of Board
(1) An act or decision of the Board is not invalid
merely because of--
Victorian Legislation and Parliamentary Documents
(a) a defect or irregularity in, or in
5 connection with, the appointment of a
director of the Board or an alternate
director; or
(b) a vacancy in the membership of the
Board, including a vacancy arising from
10 the failure to appoint an original director
of the Board.
(2) Anything done by or in relation to a person
purporting to act as Chairperson, Deputy
Chairperson, a director of the Board or an
15 alternate director is not invalid merely
because--
(a) the occasion for the appointment had not
arisen; or
(b) there was a defect or irregularity in, or in
20 connection with, the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion for an alternate director
acting in the place of a director of the
25 Board had not arisen or had ceased.
9. Presiding at meetings of Board
The person who is to preside at a meeting of the
Board is--
(a) the Chairperson, if he or she is present;
30 or
(b) in the absence of the Chairperson, the
Deputy Chairperson, if he or she is
present; or
(c) in the absence of both the Chairperson
35 and the Deputy Chairperson, a State
director elected to preside by the
directors of the Board present at the
meeting.
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10. Quorum
A quorum of the Board is constituted by half of
the directors of the Board for the time being
Victorian Legislation and Parliamentary Documents
and must include at least one ACGA director,
5 one CGF director and 2 State directors.
11. Proceedings of Board
(1) Subject to sub-clauses (2) and (3), meetings of
the Board are to be held at the times and places
that the Chairperson determines.
10 (2) A meeting of the Board may be convened at
any time--
(a) by the Chairperson; or
(b) by at least 4 directors of the Board.
(3) There must be at least 4 meetings of the Board
15 each year.
(4) The Board may permit its directors to
participate in a particular meeting by--
(a) telephone; or
(b) closed-circuit television; or
20 (c) any other means of electronic or
instantaneous communication.
(5) A director of the Board who participates in a
meeting under a permission under sub-clause
(4) is deemed to be present at the meeting.
25 (6) A question arising at a meeting must be
determined by a majority of votes of directors
of the Board present and voting on that question
and, if the voting is equal, the person presiding
has a casting vote as well as a deliberative vote.
30 (7) The person presiding must ensure that minutes
are kept of each of the Board's meetings.
(8) Subject to this Act, the Board may regulate its
own proceedings.
12. Resolutions without meetings
35 (1) If the directors of the Board for the time being
sign a document containing a statement that
they are in favour of a resolution in the terms
set out in the document, a resolution in those
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terms is deemed to have been passed at a
meeting of the Board held on the day on which
the document is signed or, if the directors do
Victorian Legislation and Parliamentary Documents
not sign it on the same day, on the day on
5 which the last director to sign signs the
document.
(2) If a resolution is, under sub-clause (1), deemed
to have been passed at a meeting of the Board,
each director of the Board must be advised as
10 soon as practicable and given a copy of the
terms of the resolution.
(3) For the purposes of sub-clause (1), 2 or more
separate documents containing a statement in
identical terms, each of which is signed by one
15 or more directors of the Board, are deemed to
constitute one document.
(4) In sub-clause (1), "director", in relation to a
resolution, does not include--
(a) a director who, because of clause 13, is
20 not permitted to take part in the making
of the resolution; or
(b) a director who is on leave of absence
approved by the Board; or
(c) a director who otherwise disqualifies
25 himself or herself from taking part in
considering or voting on the resolution in
question on the grounds that he or she is
not entitled at law to do so or has a
conflict of interest; or
30 (d) any director who the directors of the
Board reasonably believe is not entitled
at law to consider or vote on the
resolution in question.
13. Disclosure of interests of directors of the Board
35 (1) A director of the Board who has a direct or
indirect pecuniary interest in a contract or other
matter being dealt with by the Board must
disclose the nature of that interest at a meeting
of the Board as soon as possible after becoming
40 aware of the interest.
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(2) A director of the Board who holds an office or
possesses property as a result of which, directly
or indirectly, duties or interests may be created
Victorian Legislation and Parliamentary Documents
in conflict with the director's duties as a
5 director, must disclose that fact at a meeting of
the Board as soon as possible after becoming
aware of the potential conflict.
(3) The person presiding at a meeting at which a
disclosure under this clause is made must cause
10 that disclosure to be recorded in the minutes of
the meeting.
(4) Subject to sub-clauses (6) and (7), a person who
has made a disclosure under this clause must
not take any further part in the discussion of or
15 vote on the contract or other matter to which
the disclosure relates.
(5) Subject to sub-clauses (6) and (7), if a director
of the Board votes on a matter in contravention
of sub-clause (4), his or her vote must be
20 disallowed.
(6) Sub-clauses (4) and (5) do not apply in relation
to a matter relating to the supply of goods or
services to a director of the Board if the goods
or services are, or are to be, available to
25 members of the public on the same terms and
conditions.
(7) Sub-clauses (4) and (5) do not apply in respect
of a matter relating to any contract or
arrangement between the Corporation and
30 ACGA or CGF if the interest of the director of
the Board is only because that director is an
ACGA director or a CGF director.
14. Director of Board may act in interests of appointing
body
35 (1) Despite clause 13, an ACGA director or an
alternate ACGA director may have regard to
and may act in accordance with the interests of
ACGA provided that in doing so, the director
does not act in a manner contrary to the
40 interests of the Corporation.
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(2) Despite clause 13, a CGF director or an
alternate CGF director may have regard to and
may act in accordance with the interests of CGF
Victorian Legislation and Parliamentary Documents
provided that in doing so, the director does not
5 act in a manner contrary to the interests of the
Corporation.
(3) Despite clause 13, a State director or an
alternate State director may have regard to and
may act in accordance with the interests of the
10 State provided that in doing so, the director
does not act in a manner contrary to the
interests of the Corporation.'.
10. Amendment of the Borrowing and Investment Powers
Act 1987
After item 6A in Schedule 1 to the Borrowing
15
and Investment Powers Act 1987 insert--
"
6B. Melbourne 2006 5, 8, 10, 11,
Commonwealth 11AA, 11AB,
Games Corporation 12, 14, 14A, 15,
20, 20A and 21.
".
__________________
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PART 3--COMMONWEALTH GAMES COMMERCIAL
ARRANGEMENTS
Victorian Legislation and Parliamentary Documents
11. Definitions
In section 3(1) of the Principal Act, insert the
following definitions--
5
' "ACGA indicia or images" means--
(a) the name "Australian Commonwealth
Games Association";
(b) the ACGA logo, the general design of
which is set out in Part 1 of Schedule 3;
10
"Australian Commonwealth Games Team"
means the athletes and officials selected by
ACGA to represent Australia in the
Commonwealth Games and who are
accredited by CGF as participants in the
15
Commonwealth Games;
"CGF indicia or images" means--
(a) the name "The Commonwealth Games
Federation";
(b) the CGF logo, the general design of
20
which is set out in Part 2 of Schedule 3;
"Commonwealth Games logo" means--
(a) a Commonwealth Games logo or any
part of a Commonwealth Games logo,
the general design of which is set out in
25
Schedule 4;
(b) any other logo that is prescribed to be a
Commonwealth Games logo or any part
of such a logo;
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"Commonwealth Games reference" means--
(a) any of the following words, expressions
Victorian Legislation and Parliamentary Documents
or figures--
(i) "Melbourne 2006 Commonwealth
Games";
5
(ii) "Melbourne 2006 Games";
(iii) "Melbourne Games";
(iv) "Melbourne Commonwealth
Games";
(v) "Melbourne2006";
10
(vi) "M2006";
(vii) "M06";
(viii) "Australian Commonwealth
Games";
(ix) "Commonwealth Games";
15
(x) "the Friendly Games";
(xi) any other combination of the
words "Commonwealth Games"
or "Games" and the numbers
"2006", "18th" or "XVIIIth";
20
(xii) "Australian Commonwealth
Games Team";
(xiii) "Commonwealth Games Cultural
Program";
(xiv) "Melbourne 2006 Cultural
25
Program";
(xv) "M06 Cultural Program";
(xvi) "Queen's Baton Relay";
(xvii) "bronze", "silver" or "gold";
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(b) any words, expressions or figures that
are prescribed to be Commonwealth
Games references;
Victorian Legislation and Parliamentary Documents
Note: It may be an offence under this Act to use
5 these terms in the circumstances set out in
sections 56L, 56M, 56N and 56O.
"Games related indicia or images" means--
(a) a Commonwealth Games logo;
(b) an insignia that is prescribed to be a
Commonwealth Games insignia or any
10
part of such an insignia;
(c) a mascot that is prescribed to be a
Commonwealth Games mascot or any
part of such a mascot;
(d) a pictogram that is prescribed to be a
15
Commonwealth Games pictogram or
any part of such a pictogram;
(e) any other indicia or image that refers to
or represents the Commonwealth
Games and that is prescribed to be a
20
Commonwealth Games indicia or
image or any part of such an indicia or
image;
(f) a Commonwealth Games reference;
"goods seizure period" means the period
25
commencing on 1 January 2006 and ending
on 31 March 2006;
"Office of Commonwealth Games
Coordination" means staff of the
Department for Victorian Communities
30
engaged in the administration of this Act;
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"person", in Part 5A, includes a body or
association (corporate or unincorporated)
and a partnership;
Victorian Legislation and Parliamentary Documents
"seized goods or advertising material" means
goods or advertising material seized under
5
section 56V;
"sponsorship-like arrangement" means--
(a) a right to associate a person or a
person's goods or services with--
(i) the Corporation; or
10
(ii) the Australian Commonwealth
Games Team; or
(iii) ACGA; or
(iv) CGF; or
(v) the Commonwealth Games or any
15
event or program associated with
the Commonwealth Games; or
(b) an affiliation or association (whether
commercial or non-commercial) with--
(i) the Corporation; or
20
(ii) the Australian Commonwealth
Games Team; or
(iii) ACGA; or
(iv) CGF; or
(v) the Commonwealth Games or any
25
event or program associated with
the Commonwealth Games;'.
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12. New Part 5A inserted
After Part 5 of the Principal Act insert--
Victorian Legislation and Parliamentary Documents
'PART 5A--COMMONWEALTH GAMES
COMMERCIAL ARRANGEMENTS
Division 1--Other Rights Not Affected
5
56A. Part does not derogate from other rights
Nothing in this Part derogates from any
rights subsisting in or any remedy available
to any person under any other law or any
contract or agreement in relation to--
10
(a) Games related indicia or images; or
(b) ACGA indicia or images; or
(c) CGF indicia or images; or
(d) any other indicia or images.
15 Note: Other laws which may give rights or provide
remedies include the Copyright Act 1968, the
Trade Marks Act 1995, the Designs Act 1906
and the Trade Practices Act 1974 of the
Commonwealth and the Fair Trading Act
20 1999.
56B. Part does not affect rights relating to use of
business or company names
Nothing in this Part affects any rights
conferred on any person prior to the
commencement of section 12 of the
25
Commonwealth Games Arrangements
(Governance) Act 2003 in relation to--
(a) a name that is registered in relation to a
business under the Business Names
Act 1962 or a corresponding law of
30
another State or Territory of the
Commonwealth prior to that
commencement; or
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(b) a registered name of a company
incorporated under the Corporations
Act prior to that commencement.
Victorian Legislation and Parliamentary Documents
56C. Part does not affect rights in respect of
passing off
5
(1) Nothing in this Part affects the use of any
indicia or images by a person on or after the
commencement of section 12 of the
Commonwealth Games Arrangements
(Governance) Act 2003 if, immediately
10
before that commencement, the person
would have been entitled to prevent another
person from passing off by means of the use
of the indicia or images or of similar indicia
or images, goods, services or a business as
15
the goods, services or business of the first-
mentioned person.
(2) In an action or proceedings in respect of
passing off brought against the Corporation,
ACGA, CGF or a person authorised to use
20
Games related indicia or images arising out
of the use of indicia or images referred to in
sub-section (1), it is a defence if the
Corporation, ACGA, CGF or the person
authorised to use Games related indicia or
25
images (as the case requires) satisfies the
court that at the time of the use, the
Corporation, ACGA, CGF or the person
authorised to use Games related indicia or
images (as the case requires) was not aware
30
that the person bringing the action or
proceedings was entitled to prevent the
passing off.
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Division 2--Authorising Use of Games Related
Indicia or Images and Other Indicia or Images
Victorian Legislation and Parliamentary Documents
56D. Corporation may authorise use of Games
related indicia or images
(1) For the purposes of this Part, the Corporation
5
may authorise a person to use Games related
indicia or images.
(2) An authorisation under this section must be
in writing.
56E. ACGA may authorise use of ACGA indicia
10
or images
(1) For the purposes of this Part, ACGA may
authorise a person to use ACGA indicia or
images.
(2) An authorisation under this section must be
15
in writing.
56F. CGF may authorise use of CGF indicia or
images
(1) For the purposes of this Part, CGF may
authorise a person to use CGF indicia or
20
images.
(2) An authorisation under this section must be
in writing.
56G. Minister may authorise non-commercial
use of Commonwealth Games references
25
(1) For the purposes of this Part, the Minister
may authorise a person to use any
Commonwealth Games reference for non-
commercial purposes.
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(2) The Minister must not authorise a person
under sub-section (1) unless the Minister has
first consulted with the Corporation and
Victorian Legislation and Parliamentary Documents
ACGA.
(3) An authorisation under this section must be
5
in writing.
56H. Notification of authorisations by other
entities
(1) If ACGA authorises a person to use any
ACGA indicia or images under section 56E,
10
ACGA must cause the Corporation to be
notified of that authorisation.
(2) If CGF authorises a person to use any CGF
indicia or images under section 56F, CGF
must cause the Corporation to be notified of
15
that authorisation.
(3) If the Minister authorises a person to use any
Commonwealth Games reference under
section 56G, the Minister must cause the
Corporation, ACGA and CGF to be notified
20
of that authorisation.
56I. What can an authorisation contain?
(1) An authorisation under section 56D, 56E,
56F or 56G is subject to any terms and
conditions which the Corporation, ACGA,
25
CGF or the Minister (as the case requires)
believes are reasonable to impose, including,
but not limited to--
(a) the duration of the authorisation;
(b) whether the authorisation applies
30
generally or in specified circumstances;
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(c) whether the authorisation authorises the
use of--
Victorian Legislation and Parliamentary Documents
(i) in the case of an authorisation by
the Corporation under section
56D, all Games related indicia or
5
images or specified kinds of
Games related indicia or images;
or
(ii) in the case of an authorisation by
ACGA under section 56E, all
10
ACGA indicia or images or
specified kinds of ACGA indicia
or images; or
(iii) in the case of an authorisation by
CGF under section 56F, all CGF
15
indicia or images or specified
kinds of CGF indicia or images;
or
(iv) in the case of an authorisation by
the Minister under section 56G, all
20
Commonwealth Games references
or specified kinds of
Commonwealth Games
references.
(2) An authorisation under section 56D, 56E,
25
56F or 56G expires at the earlier of--
(a) the expiration date specified in the
authorisation; or
(b) in the case of an authorisation by the
Corporation under section 56D or an
30
authorisation by the Minister under
section 56G, 30 June 2006; or
(c) in any other case, 31 December 2006.
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56J. Register of authorisations
(1) The Corporation must--
Victorian Legislation and Parliamentary Documents
(a) maintain a register of authorisations
given under sections 56D, 56E, 56F and
56G; and
5
(b) record in the register of
authorisations--
(i) each authorisation by the
Corporation under section 56D;
and
10
(ii) each authorisation by ACGA
under section 56E of which the
Corporation has been notified
under section 56H(1); and
(iii) each authorisation by CGF under
15
section 56F of which the
Corporation has been notified
under section 56H(2); and
(iv) each authorisation by the Minister
under section 56G of which the
20
Corporation has been notified
under section 56H(3).
(2) The register of authorisations must include
the following--
(a) the name of any person--
25
(i) authorised by the Corporation
under section 56D to use Games
related indicia or images; or
(ii) authorised by ACGA under
section 56E to use ACGA indicia
30
or images; or
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(iii) authorised by CGF under
section 56F to use CGF indicia or
images; or
Victorian Legislation and Parliamentary Documents
(iv) authorised by the Minister under
section 56G to use
5
Commonwealth Games
references;
(b) the date of the authorisation and the
period of its duration.
(3) The register of authorisations may be--
10
(a) inspected by any person at any
reasonable time, without charge; and
(b) made available for inspection on the
Internet.
56K. Use of Commonwealth Games references
15
which do not need authorisation
(1) The following persons may use
Commonwealth Games references without
the authorisation of the Corporation or the
Minister--
20
(a) ACGA;
(b) CGF.
(2) Subject to sub-section (4), the following
persons may use Commonwealth Games
references without the authorisation of the
25
Corporation or the Minister--
(a) coaches of Commonwealth Games
athletes, Commonwealth Games
athletes and teams;
(b) any institute of sport;
30
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(c) any sports organisation which--
(i) in Australia, governs a sport
Victorian Legislation and Parliamentary Documents
which is on the program of the
Commonwealth Games; and
(ii) is a member of ACGA.
5
(3) Subject to sub-section (4), the following
persons may use Commonwealth Games
references without the authorisation of the
Corporation or the Minister in the following
specified circumstances--
10
(a) any person if the use is incidental to--
(i) the provision of information,
including the reporting of news
and the presentation of current
affairs; or
15
(ii) the purposes of criticism and
review, including criticism or
review in a newspaper, magazine
or similar periodical, a broadcast
or a film;
20
(b) any person if the use is for--
(i) the purposes of professional
advice; or
(ii) research or study purposes; or
(iii) educational purposes.
25
(4) A person referred to in sub-section (2) or (3)
is not authorised to use a Commonwealth
Games reference if the use of the
Commonwealth Games reference--
(a) is for promotional, marketing or
30
commercial purposes; or
(b) suggests a sponsorship-like
arrangement.
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Division 3--Enforcement
56L. Offence to engage in conduct that suggests
Victorian Legislation and Parliamentary Documents
sponsorship, approval or affiliation
A person must not engage in conduct which
would suggest to a reasonable person--
5
(a) that goods or services have a
sponsorship, approval or affiliation that
they do not have with--
(i) the Commonwealth Games; or
(ii) any event or program associated
10
with the Commonwealth Games;
or
(iii) the Corporation; or
(iv) the Australian Commonwealth
Games Team; or
15
(v) ACGA; or
(vi) CGF; or
(b) that any person has a sponsorship,
approval or affiliation that the person
does not have with--
20
(i) the Commonwealth Games; or
(ii) any event or program associated
with the Commonwealth Games;
or
(iii) the Corporation; or
25
(iv) the Australian Commonwealth
Games Team; or
(v) ACGA; or
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(vi) CGF.
Penalty: 100 penalty units, in the case of a
Victorian Legislation and Parliamentary Documents
natural person.
600 penalty units, in the case of a
body corporate.
5
56M. Offence to use Games related indicia or
images without authorisation
(1) A person must not use--
(a) Games related indicia or images; or
(b) any thing that is substantially identical
10
to or deceptively similar to Games
related indicia or images--
if the use--
(c) is for commercial purposes; or
(d) is for promotional, advertising or
15
marketing purposes, whether or not for
commercial gain; or
(e) would suggest a sponsorship-like
arrangement to a reasonable person.
Penalty: 100 penalty units, in the case of a
20
natural person.
600 penalty units, in the case of a
body corporate.
(2) Sub-section (1) does not apply to--
(a) any use of Games related indicia or
25
images that has been authorised by the
Corporation under section 56D; or
(b) any use of Commonwealth Games
references that have been authorised by
the Minister under section 56G; or
30
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(c) any use of Games related indicia or
images or any other indicia or images
that is otherwise authorised by or under
Victorian Legislation and Parliamentary Documents
this Act or any other law.
56N. Offence to use ACGA indicia or images
5
without authorisation
(1) A person must not use--
(a) ACGA indicia or images; or
(b) any thing that is substantially identical
to or deceptively similar to ACGA
10
indicia or images--
if the use--
(c) is for commercial purposes; or
(d) is for promotional, advertising or
marketing purposes, whether or not for
15
commercial gain; or
(e) would suggest a sponsorship-like
arrangement to a reasonable person.
Penalty: 100 penalty units, in the case of a
natural person.
20
600 penalty units, in the case of a
body corporate.
(2) Sub-section (1) does not apply to--
(a) any use of ACGA indicia or images
that has been authorised by ACGA
25
under section 56E; or
(b) any use of ACGA indicia or images or
any other indicia or images that is
otherwise authorised by or under this
Act or any other law.
30
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56O. Offence to use CGF indicia or images
without authorisation
Victorian Legislation and Parliamentary Documents
(1) A person must not use--
(a) CGF indicia or images; or
(b) any thing that is substantially identical
5
to or deceptively similar to CGF indicia
or images--
if the use--
(c) is for commercial purposes; or
(d) is for promotional, advertising or
10
marketing purposes, whether or not for
commercial gain; or
(e) would suggest a sponsorship-like
arrangement to a reasonable person.
Penalty: 100 penalty units, in the case of a
15
natural person.
600 penalty units, in the case of a
body corporate.
(2) Sub-section (1) does not apply to--
(a) any use of CGF indicia or images that
20
has been authorised by CGF under
section 56F; or
(b) any use of CGF indicia or images or
any other indicia or images that is
otherwise authorised by or under this
25
Act or any other law.
56P. Injunctions
(1) An authorised applicant may apply to the
Magistrates' Court for the grant of an
injunction restraining a person from
30
engaging in conduct that constitutes--
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(a) a contravention of section 56L, 56M,
56N or 56O; or
Victorian Legislation and Parliamentary Documents
(b) attempting or conspiring to contravene
section 56L, 56M, 56N or 56O; or
(c) aiding, abetting, counselling or
5
procuring a person to contravene
section 56L, 56M, 56N or 56O; or
(d) inducing or attempting to induce a
person, whether by threats, promises or
otherwise, to contravene section 56L,
10
56M, 56N or 56O; or
(e) being in any way, directly or indirectly,
knowingly concerned in, or party to,
the contravention by a person of
section 56L, 56M, 56N or 56O.
15
(2) The Magistrates' Court may grant an
injunction restraining a person from
engaging in conduct of the kind referred to in
paragraphs (a) to (e) of sub-section (1)--
(a) if the Court is satisfied, on the balance
20
of probabilities, that the person is
engaging in or has been engaging in
conduct of that kind, whether or not it
appears to the Court that the person
intends to engage again or continue to
25
engage in the conduct; or
(b) if it appears to the Court that, in the
event that the injunction is not granted,
it is likely that the person will engage in
conduct of that kind, whether or not
30
that person has previously engaged in
conduct of that kind and whether or not
there is an imminent danger of
substantial damage to any person if the
first-mentioned person engages in
35
conduct of that kind; or
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(c) if the Court determines it to be
appropriate, by consent of all the
parties to the proceedings, whether or
Victorian Legislation and Parliamentary Documents
not the person has engaged in, or is
likely to engage in conduct of that kind.
5
(3) Pending determination of an application
under this section, the Magistrates' Court
may grant an interim injunction if, in the
opinion of the Court, it is desirable to do so.
(4) An application for an injunction under this
10
section may be made ex parte.
(5) In this section "authorised applicant"
means--
(a) the Corporation;
(b) any person authorised by this Act or
15
any other law to use Games related
indicia or images;
(c) if the conduct relates to ACGA indicia
or images, ACGA;
(d) if the conduct relates to CGF indicia or
20
images, CGF;
(e) the Director within the meaning of the
Fair Trading Act 1999;
(f) an inspector within the meaning of the
Fair Trading Act 1999.
25
56Q. Power to rescind or vary injunctions
The Magistrates' Court may rescind or vary
an injunction or an interim injunction
granted by it under section 56P.
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56R. Power of court to require corrective
advertising
Victorian Legislation and Parliamentary Documents
(1) If, on the application of an authorised
applicant, a court is satisfied, on the balance
of probabilities, that there has been a
5
contravention of section 56L, 56M, 56N or
56O, the court may make either or both of
the following orders--
(a) an order requiring any person involved
in the contravention to disclose any
10
information which is in the person's
possession or to which the person has
access, which is information specified
in the order or information of a class of
information specified in the order--
15
(i) to the public or any person or
class of persons specified in the
order; and
(ii) in the manner specified in the
order;
20
(b) an order requiring any person involved
in the contravention to publish an
advertisement in the terms specified or
determined in accordance with the
order--
25
(i) at the expense of the person; and
(ii) in the manner and at the times
specified in the order.
(2) A court may make an order under this
section whether or not an injunction is
30
granted under section 56P.
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(3) In this section "authorised applicant"
means--
Victorian Legislation and Parliamentary Documents
(a) the Corporation;
(b) any person authorised by this Act or
any other law to use Games related
5
indicia or images;
(c) if the application relates to ACGA
indicia or images, ACGA;
(d) if the application relates to CGF indicia
or images, CGF.
10
56S. Actions for damages
(1) If the Corporation or any person authorised
to use Games related indicia or images
suffers any injury or damage because of a
contravention of section 56L or 56M, the
15
Corporation or the person authorised to use
Games related indicia or images may recover
the amount of the loss or damage or damages
in respect of the injury by proceeding against
any person involved in the contravention.
20
(2) If ACGA suffers any injury or damage
because of a contravention of section 56L or
56N in relation to ACGA indicia or images,
ACGA may recover the amount of the loss
or damage or damages in respect of the
25
injury by proceeding against any person
involved in the contravention.
(3) If CGF suffers any injury or damage because
of a contravention of section 56L or 56O in
relation to CGF indicia or images, CGF may
30
recover the amount of the loss or damage or
damages in respect of the injury by
proceeding against any person involved in
the contravention.
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(4) A proceeding under this section may be
brought in any court of competent
jurisdiction.
Victorian Legislation and Parliamentary Documents
(5) A proceeding under sub-section (1), (2) or
(3) must not be commenced more than 3
5
years after the date on which the cause of
action accrued.
(6) A court may make an order under this
section whether or not an injunction is
granted under section 56P.
10
56T. Account of profits
(1) The Corporation or any person authorised to
use Games related indicia or images may
apply to a court for an account of profits in
respect of a contravention of section 56L or
15
56M by proceeding against any person
involved in the contravention.
(2) ACGA may apply to a court for an account
of profits in respect of a contravention of
section 56L or 56N in relation to ACGA
20
indicia or images by proceeding against any
person involved in the contravention.
(3) CGF may apply to a court for an account of
profits in respect of a contravention of
section 56L or 56O in relation to CGF
25
indicia or images by proceeding against any
person involved in the contravention.
(4) A proceeding under this section may be
brought in any court of competent
jurisdiction.
30
(5) A proceeding under sub-section (1), (2) or
(3) must not be commenced more than
3 years after the date on which the cause of
action accrued.
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(6) A court may make an order under this
section whether or not an injunction is
granted under section 56P.
Victorian Legislation and Parliamentary Documents
56U. No entitlement to both damages and
account of profits
5
The Corporation, ACGA, CGF or any person
authorised to use Games related indicia or
images is not entitled to bring proceedings
for both damages under section 56S and an
account of profits under section 56T in
10
respect of the same contravention under
section 56L, 56M, 56N or 56O (as the case
requires).
56V. Seizure of goods and advertising material
during goods seizure period
15
(1) Subject to sub-section (2), a member of the
police force may seize goods or advertising
material if the member of the police force--
(a) finds goods or advertising material that
are marked with or use--
20
(i) Games related indicia or images,
ACGA indicia or images or CGF
indicia or images; or
(ii) any thing that is substantially
identical to or deceptively similar
25
to Games related indicia or
images, ACGA indicia or images
or CGF indicia or images; and
(b) believes on reasonable grounds that the
marking with or use of the indicia or
30
images or thing referred to in paragraph
(a), as the case requires, has not been
authorised under this Act or by or under
any other law.
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(2) A member of the police force may only seize
goods or advertising material referred to in
sub-section (1) if the goods or advertising
Victorian Legislation and Parliamentary Documents
material are found in a Commonwealth
Games venue or a designated access area
5
during the goods seizure period.
56W. Seized goods or advertising material to be
given to Office of Commonwealth Games
Coordination
(1) A member of the police force, as soon as
10
practicable, must give seized goods or
advertising material to the Office of
Commonwealth Games Coordination.
(2) Subject to sub-section (3), the Office of
Commonwealth Games Coordination must
15
retain seized goods or advertising material
until the seized goods or advertising
material--
(a) are forfeited to the Crown under section
56X or 56ZA; or
20
(b) are returned to the person from whom
they were seized in accordance with
section 56Y; or
(c) are returned to their lawful owner by
court order or otherwise.
25
(3) If seized goods or advertising material are
still being retained under this section on
30 December 2006 and no on-going
proceedings in respect of the goods or
advertising material are in existence at that
30
date, the seized goods or advertising material
are forfeited to the Crown.
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(4) If seized goods or advertising material are
forfeited to the Crown under sub-section
(3)--
Victorian Legislation and Parliamentary Documents
(a) the Minister may direct that the goods
or material be disposed of in any
5
manner that the Minister thinks fit; and
(b) if the Minister directs that the goods or
material are to be disposed of by sale--
(i) the Minister must consult with the
Corporation, ACGA or CGF (as
10
the case requires) before that sale;
and
(ii) the proceeds of the sale must be
paid into the Consolidated Fund.
56X. Voluntary forfeiture to Crown
15
(1) Before proceedings are instituted for an
offence against section 56L, 56M, 56N or
56O in relation to any seized goods or
advertising material, the person from whom
they were seized may voluntarily forfeit
20
those seized goods or advertising material to
the Crown.
(2) A forfeiture under sub-section (1) must be by
written notice given to the Office of
Commonwealth Games Coordination.
25
(3) On receipt of a notice of forfeiture under
sub-section (2)--
(a) the seized goods or advertising material
are forfeited to the Crown; and
(b) the Office of Commonwealth Games
30
Coordination must cause the
Corporation, ACGA and CGF to be
notified that the seized goods or
advertising material have been
voluntarily forfeited to the Crown.
35
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(4) If any seized goods or advertising material
are forfeited to the Crown under this
section--
Victorian Legislation and Parliamentary Documents
(a) the Minister may direct that the goods
or material be disposed of in any
5
manner that the Minister thinks fit; and
(b) if the Minister directs that the goods or
material are to be disposed of by sale--
(i) the Minister must consult with the
Corporation, ACGA or CGF (as
10
the case requires) before that sale;
and
(ii) the proceeds of the sale must be
paid into the Consolidated Fund.
56Y. Recovery of seized goods or advertising
15
material and compensation
(1) If any goods or advertising material have
been seized under section 56V and the goods
or advertising material have not been
voluntarily forfeited under section 56X
20
and--
(a) proceedings are not instituted for an
offence against section 56L, 56M, 56N
or 56O in relation to the seized goods
or advertising material within 6 months
25
of the seizure; or
(b) after proceedings have been instituted
and completed, the defendant is not
found guilty--
the person from whom they were seized is
30
entitled to recover--
(c) the seized goods or advertising material
or, if they have been destroyed,
compensation equal to the market value
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of the goods or advertising material at
the time of the seizure; and
Victorian Legislation and Parliamentary Documents
(d) compensation for any loss suffered by
reason of the seizure of the seized
goods or advertising material.
5
(2) An action for the payment of compensation
under sub-section (1) may be brought in any
court of competent jurisdiction against--
(a) the Corporation, if the seized goods or
advertising material were marked with
10
or used--
(i) Games related indicia or images;
or
(ii) any thing that is substantially
identical to or deceptively similar
15
to Games related indicia or
images; or
(b) ACGA, if the seized goods or
advertising material were marked with
or used--
20
(i) ACGA indicia or images; or
(ii) any thing that is substantially
identical to or deceptively similar
to ACGA indicia or images; or
(c) CGF, if the seized goods or advertising
25
material were marked with or used--
(i) CGF indicia or images; or
(ii) any thing that is substantially
identical to or deceptively similar
to CGF indicia or images.
30
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56Z. Meaning of marked with indicia or images
For the purposes of this Part, goods are to be
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taken to be marked with Games related
indicia or images, ACGA indicia or images,
CGF indicia or images or any thing that is
5
substantially identical to or deceptively
similar to Games related indicia or images,
ACGA indicia or images or CGF indicia or
images if the indicia or images are affixed to,
annexed to, marked on or incorporated in or
10
with--
(a) the goods; or
(b) any covering or container in which the
goods are wholly or partly enclosed; or
(c) anything placed in or attached to any
15
covering or container in which the
goods are wholly or partly enclosed; or
(d) anything that is attached to the goods or
around which the goods are wrapped or
wound.
20
56ZA. Court may order forfeiture to the Crown
(1) A court which finds a person guilty of an
offence against section 56L, 56M, 56N or
56O may order that any goods or advertising
material to which the offence relates be
25
forfeited to the Crown.
(2) If any goods or advertising material are
forfeited to the Crown under sub-section
(1)--
(a) the Minister may direct that the goods
30
or material be disposed of in any
manner that the Minister thinks fit; and
(b) if the Minister directs that the goods or
material are to be disposed of by sale--
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(i) the Minister must consult with the
Corporation, ACGA or CGF (as
the case requires) before that sale;
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and
(ii) the proceeds of the sale must be
5
paid into the Consolidated Fund.
56ZB. Offences by corporations and partnerships
etc.
(1) In this section, "officer"--
(a) in relation to a corporation within the
10
meaning of the Corporations Act, has
the same meaning as in section 9 of that
Act; and
(b) in relation to a corporation that is not a
corporation within the meaning of that
15
Act, means any person (by whatever
name called) who is concerned or takes
part in the management of the
corporation--
but does not include an employee of the
20
corporation.
(2) If a corporation is guilty of an offence
against this Part, any officer of the
corporation who was in any way, by act or
omission, directly or indirectly, knowingly
25
concerned in or party to the commission of
the offence is also guilty of that offence and
liable to the penalty for that offence.
(3) If in a proceeding for an offence against this
Part it is necessary to establish the intention
30
of a corporation, it is sufficient to show that
a servant or agent of the corporation had that
intention.
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(4) A statement made by an officer of a
corporation is admissible as evidence against
the corporation in any proceeding against the
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corporation for an offence against this Part.
(5) If this Part provides that a person is guilty of
5
an offence, that reference to a person must--
(a) if the person is a partnership, be read as
a reference to each member of the
partnership; and
(b) if the person is an unincorporated
10
association, be read as a reference to
each member of the committee of
management of the association.'.
13. Section 57 substituted
For section 57 of the Principal Act substitute--
15
"57. Regulations
(1) The Governor in Council may make
regulations for or with respect to--
(a) prescribing for the purposes of
Part 5A--
20
(i) Commonwealth Games logos; and
(ii) Commonwealth Games insignia;
and
(iii) Commonwealth Games mascots;
and
25
(iv) Commonwealth Games
pictograms; and
(v) other Commonwealth Games
indicia or images that refer to or
represent the Commonwealth
30
Games;
(b) prescribing Commonwealth Games
references for the purposes of Part 5A;
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(c) any other matter or thing that is
required or permitted by this Act to be
prescribed or that is necessary to be
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prescribed for carrying out or giving
effect to this Act.
5
(2) Regulations made under sub-section (1)(a)
may prescribe the matters referred to in
sub-section (1)(a)--
(a) in any form or any combination of
forms; and
10
(b) whether or not by reference to
particular colours or combinations of
colours or in any colours or
combinations of colours or both.
(3) Regulations made under this Act--
15
(a) may be of general or limited
application;
(b) may differ according to differences in
time, place or circumstance.".
14. Expiry
20
(1) After section 58(1) of the Principal Act insert--
"(1A) Parts 1A, 1B and 5A of this Act and
Schedules 2, 3 and 4 to this Act expire on
31 December 2006.".
(2) In section 58(2) of the Principal Act, for "This Act
25
expires" substitute "The remaining provisions of
this Act expire".
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15. Schedules 3 and 4 inserted
At the end of the Principal Act insert--
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"SCHEDULE 3
ACGA LOGO AND CGF LOGO
PART 1--ACGA LOGO
5
PART 2--CGF LOGO
__________________
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SCHEDULE 4
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COMMONWEALTH GAMES LOGOS
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".
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Endnotes
ENDNOTES
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By Authority. Government Printer for the State of Victoria.
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