Copyright, fair use and the Australian Constitution

There has been much debate over recent years about whether Australian copyright law should adopt a fair use doctrine. In this chapter we argue by pointing to the historical record that the incorporation of the term 'copyrights' in the Australian Constitution embeds a notion of balance and fair use in Australian law and that this should be taken into account when interpreting the Australian Copyright Act 1968. English case law in the 18th and 19th centuries developed a principle that copyright infringement did not occur where a person had made a fair use of a work. Fair use was generally established where the defendant had made a productive use that did more than alter the original work for the purpose of evading liability, and where the defendant had made an original contribution to the resulting work. Additionally, fairness was shown by a use that did not supersede or prejudice the market for the original work. At the time of including the copyright power in the Constitution, the UK Parliament’s understanding of “copyrights” included the notion of fair use as it had been developed in U.K. precedent. In this chapter we argue that the work “copyrights” in the Australia Constitution takes its definition from copyright in 1900 and as it has evolved since. Importantly, the word “copyrights” is infused with a particular meaning that incorporates the principle of copyright balance. The constitutional notion of copyright, therefore, is not that of an unlimited power to prevent all copying. Rather, copyright distinguishes between infringing copying and non-infringing copying and grants to the copyright owner only the power to control the former. Non-infringing copying includes well-accepted limitations on the copyright owner’s rights, including the copying of ideas, the copying of public domain works and the copying of insubstantial parts of copyrighted works. In this chapter we argue that non-infringing copying also includes copying to make a fair use of a work. The sections that distinguish infringing copying from non-infringing copying in the Copyright Act 1968 are sections 36(1) and 101(1), which define infringement as the doing, without licence, of an “act comprised in the copyright”. An infringing copy is an act comprised the copyright, whereas a non-infringing copy is not. We argue that space for fair uses of copyrighted works is built into the Copyright Act 1968 through these sections, because a fair use will not produce an infringing copy and so is not an act comprised in the copyright.

The Australian Constitution: A century of irrelevance

Why the Australian Constitution is irrelevant - while some aspects of the Constitution, such as the separation of powers doctrine, provide the prospect for a Constitution that is more committed to principles of relevance to the citizenry, consideration must be given to the role played by the Constitution in Australian society, and whether it is as important as it should be - effort spent interpreting many sections of the Constitution has been a waste of the High Court's time and energy - given that no important rights and duties are at stake, consistency should be the main objective for the Court in such cases - in the teaching of constitutional law, less time should be spent focusing on mechanistic case law - emphasis should be placed on the values and ideals that inform the content and development of constitutional principles.

The protection of political communication under the Australian constitution

Compatibility of a law with implied freedom of political communication - application of test of constitutionality outlined in Lange case - argues that two-tier approach be abandoned - if a law regulates the content of a political communication, not its mode, more rigorous judicial scrutiny will follow - should be a single test for constitutionality where application is through the proportionality framework and informed by the rationale of the implied freedom - application to Australian racial vilification laws.

Elections 2.0 : reflections on the 2010 federal election and the future of Australian electoral law

This article analyses the 2010 federal election and the impact the internet and social media had on electoral law, and what this may mean for electoral law in the future. Four electoral law issues arising out of the 2010 election as a result of the internet are considered, including online enrolment, regulation of online advertising and comment, fundraising and the role of lobby groups, especially when it comes to crowdsourcing court challenges. Finally, the article offers some suggestions as to how the parliament and the courts should respond to these challenges.

Going to a 'double d': the 2016 federal election and the Constitution

This article sets out the key constitutional issues surrounding the 2016 federal election and its aftermath. The authors discuss the double dissolution mechanism in the Australian Constitution which was used to trigger the 2016 election and the recent changes to the Senate voting system. The authors also examine how and why the newly elected senators will divide into long and short term senators after the 2016 election, whether the new Parliament will proceed to a joint sitting, and the prospects of another early election.

Mediatisation, marginalisation and disruption in Australian Indigenous affairs

This article considers how changing media practices of minority groups and political and media elites impact on demo-cratic participation in national debates. Taking as its case study the state-sponsored campaign to formally recognise In-digenous people in the Australian constitution, the article examines the interrelationships between political media and Indigenous participatory media—both of which we argue are undergoing seismic transformation. Discussion of constitutional reform has tended to focus on debates occurring in forums of influence such as party politics and news media that privilege the voices of only a few high-profile Indigenous media ‘stars’. Debate has progressed on the assumption that constitutional change needs to be settled by political elites and then explained and ‘sold’ to Indigenous and non-Indigenous Australians. Our research on the mediatisation of policymaking has found that in an increasingly media-saturated environment, political leaders and their policy bureaucrats attend to a narrow range of highly publicised voices. But the rapidly changing media environment has disrupted the media-driven Recognise campaign. Vigorous pub-lic discussion is increasingly taking place outside the mainstream institutions of media and politics, while social media campaigns emerge in rapid response to government decisions. Drawing on a long tradition in citizens’ media scholar-ship we argue that the vibrant, diverse and growing Indigenous media sphere in Australia has increased the accessibility of Indigenous voices challenging the scope and substance of the recognition debate. The article concludes on a cau-tionary note by considering some tensions in the promise of the changing media for Indigenous participation in the national policy conversation.

Voter behaviour and constitutional change in Australia since 1967

Australian Constitutional referendums have been part of the Australian political system since federation. Up to the year 1999 (the time of the last referendum in Australia), constitutional change in Australia does not have a good history of acceptance. Since 1901, there have been 44 proposed constitutional changes with eight gaining the required acceptance according to section 128 of the Australian Constitution. In the modern era since 1967, there have been 20 proposals over seven referendum votes for a total of four changes. Over this same period, there have been 13 federal general elections which have realised change in government just five times. This research examines the electoral behaviour of Australian voters from 1967 to 1999 for each referendum. Party identification has long been a key indicator in general election voting. This research considers whether the dominant theory of voter behaviour in general elections (the Michigan Model) provides a plausible explanation for voting in Australian referendums. In order to explain electoral behaviour in each referendum, this research has utilised available data from the Australian Electoral Commission, the 1996 Australian Bureau of Statistics Census data, and the 1999 Australian Constitutional Referendum Study. This data has provided the necessary variables required to measure the impact of the Michigan Model of voter behaviour. Measurements have been conducted using bivariate and multivariate analyses. Each referendum provides an overview of the events at the time of the referendum as well as the =yes‘ and =no‘ cases at the time each referendum was initiated. Results from this research provide support for the Michigan Model of voter behaviour in Australian referendum voting. This research concludes that party identification, as a key variable of the Michigan Model, shows that voters continue to take their cues for voting from the political party they identify with in Australian referendums. However, the outcome of Australian referendums clearly shows that partisanship is only one of a number of contributory factors in constitutional referendums.

The constitutional power to make war: domestic legal issues raised by Australia's action in Iraq

The legal power to declare war has traditionally been a part of a prerogative to be exercised solely on advice that passed from the King to the Governor-General no later than 1942. In 2003, the Governor- General was not involved in the decision by the Prime Minister and Cabinet to commit Australian troops to the invasion of Iraq. The authors explore the alternative legal means by which Australia can go to war - means the government in fact used in 2003 - and the constitutional basis of those means. While the prerogative power can be regulated and/or devolved by legislation, and just possibly by practice, there does not seem to be a sound legal basis to assert that the power has been devolved to any other person. It appears that in 2003 the Defence Minister used his legal powers under the Defence Act 1903 (Cth) (as amended in 1975) to give instructions to the service head(s). A powerful argument could be made that the relevant sections of the Defence Act were not intended to be used for the decision to go to war, and that such instructions are for peacetime or in bello decisions. If so, the power to make war remains within the prerogative to be exercised on advice. Interviews with the then Governor-General indicate that Prime Minister Howard had planned to take the matter to the Federal Executive Council 'for noting', but did not do so after the Governor-General sought the views of the then Attorney-General about relevant issues of international law. The exchange raises many issues, but those of interest concern the kinds of questions the Governor-General could and should ask about proposed international action and whether they in any way mirror the assurances that are uncontroversially required for domestic action. In 2003, the Governor-General's scrutiny was the only independent scrutiny available because the legality of the decision to go to war was not a matter that could be determined in the High Court, and the federal government had taken action in March 2002 that effectively prevented the matter coming before the International Court of Justice

Enriching community engaged learning through interdisciplinary collaboration

Twenty first century society presents critical challenges for higher education (Brew 2013, 2). The challenges facing modern communities require graduates to have skills that respond to issues at the boundaries of, and intersections between, disciplines. Mounting evidence suggests that interdisciplinary curriculum and pedagogies help students to develop boundary-crossing skills and a deeper awareness of the student’s domain-specific knowledge (Spelt et al. 2009; Strober 2011). Spelt et al. (2009) describe boundary-crossing skills as the ability to engage with different discourses, take account of multiple perspectives, synthesise knowledge of different disciplines, and cope with complexity. In this chapter we investigate emerging conditions, practical processes, and pedagogical strategies that are enabling the Lab stakeholders, the community, the university, and students to participate in interdisciplinary community-engaged learning. Aspects of the Lab that are considered in this chapter include building trust, sharing values, establishing learning goals that are reflected in learning experiences and assessment, and employing strategies that define and attend to relationships and roles. The case study, “The Recognition of Aboriginal and Torres Strait Islander Peoples in the Australian Constitution”, a QUT collaborative project with the Social Justice Research Unit Anglicare Southern Queensland, describes the collaborators, processes, outcomes, and the lessons learned through one Lab project over three semesters. The issues illustrated in the case study are then further explored in a critical discussion of the strategies supporting interdisciplinarity in community-engaged learning across university/community collaboration, within and across the university, and for student participants

Integrated natural resource management in Australia: the opportunity offered by a national coastal policy

Under the Australian Constitution the management (and planning) of Crown Land is a State and Territory Government responsibility. When this is considered in conjunction with the Offshore Constitutional Settlement, which affirmed that coastal waters out to three nautical miles (in general) offshore were also the responsibility of State and Territory Governments, then clearly coastal management in Australia is largely a State/Territory responsibility.

Beyond three nautical miles it is a different story. Under the United Nations Law of the Sea Convention (UNCLOS), which Australia ratified in October 1994, Australia claims jurisdiction out to 200 nautical miles and beyond (Wescott, 2000). These waters cover an area including the Antarctic claim of over 15 million square kilometres or twice the land area of Australia.

Hence in marine and coastal terms we have the national (Commonwealth) Government managing the oceans and seven State and Territory governments largely in charge of coastal management (coastal land and coastal waters). Heading "up river", State and Territory Governments plan and manage catchments.

Given the uncoordinated relationships between Australian coastal management policy and both catchment management policy and Australia's Ocean Policy (Commonwealth of Australia, 1998a and b), the Commonwealth Government's commitment to a "National Coastal Policy" presents an opportunity to progress the integration of natural resources management for the first time in decades.

The times are they a-changin'? Can the Commonwealth parliament legislate for same sex marriages?

This article considers whether the marriage power contained in the Australian Constitution could support a Commonwealth law that recognised same sex marriages. To this end and after outlining the current constitutional meaning according to the High Court, three methods used for interpreting constitutional terms (connotation/denotation, moderate originalism, non-originalism) are examined to ascertain whether they could source such a law to the marriage power. It is submitted that none can do so without betraying their own core interpretative principle or the text and structure of the Constitution. However an alternative method for interpreting [*2] constitutional terms is proffered which may be able to establish a sufficient connection between a law that recognises same sex marriages and the marriage power. It involves recognising 'marriage' as a constitutionalised legal term of art whose meaning can be informed by developments since federation in common law and statute.

Back to the future : the war on terror and its impact on civil liberties

This comment looks at the capacity of the Australian Constitution to protect the civil liberties of a small number of citizens and would be citizens whose lives have been forever changed by recent acts of terror and the legislative and executive actions taken by the Commonwealth in response to those terrorist acts. These legal changes have included the creation of specific "terrorism" offences, the legislative proscription of two foreign organisations and, most notably, a significant expansion of ASIO's investigative powers.1
Whilst the Constitution contains a number of provisions and principles protective of civil liberties, in most instances they cannot resist government action expressly aimed at curtailing or infringing individual rights and freedoms. To this end, steps ought to be taken to strengthen existing institutions and mechanisms capable of providing meaningful civil rights scrutiny of government legislation. The comment begins with an examination of the close historical and legal parallels that exist between the present day and the Cold War era and suggests how the High Court might interpret the defence power should a terrorist attack occur on Australian soil. It concludes with a proposed reform. The reform involves vesting Ch III courts with the power to measure Commonwealth laws against the International Covenant on Civil and Political Rights when determining a legal controversy. This may operate to secure better legislative outcomes from a civil liberties perspective without compromising the supremacy of Parliament.