Copyright law of Australia

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The copyright law of Australia defines the legally enforceable rights of creators of creative and artistic works under Australian law. The scope of copyright in Australia is defined in the Australian Copyright Act 1968 (as amended), which applies the national law throughout Australia. Designs may be covered by the Copyright Act (as sculptures or drawings) as well as by the Design Act.

The Australian legislation is based on the authority of section 51(xviii) of the Australian Constitution. Copyright law in Australia is federal law and established by the Australian Parliament. Historically, Australian copyright law followed British copyright law, but now also reflects international standards found in the Berne Convention for the Protection of Literary and Artistic Works, other International copyright agreements and multilateral treaties, and more recently, the U.S.-Australia Free Trade Agreement.

History[edit]

Australian copyright law has historically been influenced by British copyright law and International copyright agreements. In turn Australian copyright law has influenced copyright law in Britain and the Commonwealth. Australian copyright law originates in British copyright law which was established by the British parliament through the Australian Courts Act 1828.[1] The British Statute of Anne 1709, which awarded copyright protection to books, acted as a blueprint for the extension of copyright to new types of subject matter in the 18th and 19th Century. When copyright law was introduced into Australia in 1928 British copyright law had been extended beyond literary property to include engravings and sculptures. Over the course of the 19th century it was extended to other works, including paintings, drawings and photographs.[2]

Prior to Australia's federation in 1901, a number of Australian Colonies, later states, had enacted copyright laws. In part this was done to mitigate the inadequacy of the protection afforded to Australian authors by British copyright law. The state laws continued to apply after the federal Commonwealth of Australia was established in 1901. The laws operated in concurrency with the British copyright law that was in force in the colonies. The Australian Constitution gives the federal parliament power to make laws relating to copyright and intellectual property, concurrently with the states. Section 51(xviii) of the Commonwealth Constitution provides that "the Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to, inter alia, copyright, patents of inventions and designs, and trademarks". As an immediate consequence copyright law was no longer established at state level, but by the federal parliament.[3]

The first Australian copyright statute enacted at the federal level was the Copyright Act 1905, which was a departure from British copyright law. Australia became part of the British imperial copyright system on 1 July 1912 when the Australian Copyright Act 1912 adopted the British Copyright Act 1911.[4] The British 1911 Act applied throughout the British Empire, including independent countries such as Australia, Canada, New Zealand and South Africa.

The 1911 Act made important changes in copyright law and practice. The 1911 Act abolished common law copyright in unpublished works, hence completing the process that began with the 1774 House of Lords decision in Donaldson v Beckett, which held that copyright was a creature of statute. The scope of the imperial copyright system (by changes in the UK Act) was expanded to include architecture, sound recordings and motion pictures.[5]

Copyright Act 1968[edit]

The British Copyright Act 1911 continued to apply in Australia until the Australian Copyright Act 1968 came into force on 1 May 1969. The 1968 Act was enacted following the collapse of the imperial system after the passage of the British Copyright Act 1956, and following recommendations of the Spicer Committee, which had been appointed by the Australian Attorney-General in 1958 to review the 1912 Act to see what changes were necessary for Australia to ratify the Brussels Act of the Berne Convention.[6]

The 1968 Act remains in force today, but has been amended on a number of occasions. The first major review occurred in 1974 when the Whitlam Government appointed the Copyright Law Committee, chaired by Justice Franki, to examine the impact of reprographic reproduction on copyright law in Australia. The committee was also asked to examine the impact of photocopying and "to recommend any alterations to the Australian copyright law to effect a proper balance of interest between owners of copyright and the users of copyright material in respect of reprographic reproduction."[7]

During its deliberation the Franki Committee observed that because Australia was a net importer of copyrighted works it should be careful to not adopt too radical solutions. The Franki Committee recommended, amongst others, the adoption of a statutory licensing scheme. When commencing its review the Committee stated that the primary purpose of copyright law was:[8]

"...to give to the author of a creative work his just reward for the benefit he has bestowed on the community and also to encourage the making of further creative works. On the other hand, as copyright in the nature of a monopoly, the law should ensure, as far as possible, that the rights conferred are not abused and that study, research and education are not unduly hampered."[9]

Copyright Law Review Committee (CLRC)[edit]

The 1980s and 1990s saw a range of inquiries into many aspects of copyright law. A key driver for those reviews was the establishment of the Copyright Law Review Committee (CLRC) in 1983 as an advisory body for copyright reform. The CLRC was disbanded in 2005 by the Australian government after it had produced a number of reports. Notable reports include: The meaning of Publication in the Copyright Act (1984), Use of Copyright materials by Churches (1985), Performers' Protection (1987), Moral Rights (1988), Report of Journalists' Copyright (1994), Computer Software Protection (1994), Simplification of the Copyright Act: Part 1 (1998), Simplification of the Copyright Act: Part 2 (1999), Jurisdiction and Procedures of the Copyright Tribunal (2002), Copyright and Contract (2002) and Crown Copyright (2005). The CLRC also published reports on specific areas of copyright, including Highways to Change: Copyright in the New Communications Environment: report by the Copyright Convergence Group on technological advancement and the ability of legislation to cope with change (1994), Stopping the Rip-Offs: intellectual Property Protection for Aboriginal & Torres Strait Islander Peoples (1994), the Simpson Report 1995, long title Review of Australian Copyright Collecting Societies, the Bently and Sherman Report 1995, long title Performers' Rights: Options for Reform, The Janke Report 1999, long title Our Culture, Our Future, and the Ergas Report 2000, long title Report on Intellectual Property legislation under Competition Principles Agreement.[10]

Copyright Amendment Act 2006[edit]

The Copyright Amendment Act 2006 made changes required by the US-Australia Free Trade Agreement. In particular, it strengthened anti-circumvention laws, for the first time making it illegal in Australia to circumvent technical measures used by copyright owners to protect access to their works, and expanding the measures which count as technological protection measures which may not be circumvented. Like the FTA language, the new anti-circumvention law is closely modeled on the US Digital Millennium Copyright Act, although it is not identical.

The Act also introduced a series of new exceptions into Australian copyright law. The most well known are the private copying exceptions, which follow on from proposals by former Attorney-General Philip Ruddock to allow people to record most television or radio program at home to watch at a later time with family or friends, and to format-shift their music (make copies from CDs onto personal computers and portable music players such as iPods). Unlike some countries in Europe, or Canada, there is no fee or license paid on players to compensate copyright owners for these private copies, although the exceptions are narrowly defined, and do not allow, for example, making copies for friends or family. The Act also introduced a copyright exception allowing parody and satire, and an exception to allow certain non-commercial use by public sector institutions like universities, schools, art galleries, and archives, provided that an Australian court decides an exception would be consistent with the Berne three-step test.

The other notable change made by the Act was to expand the provisions concerning criminal copyright infringement. The Act introduced strict liability offences for some copyright infringements, and a system of 'Infringement Notices' (on the spot fines). The stated aim of these provisions is to make copyright easier to enforce, particularly against commercial infringers. After concerns from user groups and a Senate Committee, many strict liability offences that would have applied to non-commercial acts were removed from the final bill.

A discussion of the Act and its changes by the Senate Standing Committee on Legal and Constitutional Affairs is available here.

Protected subject matter, exclusive rights and infringement[edit]

Australian copyright law has been influenced significantly by the structure of English law, in addition to the Berne Convention and other international copyright treaties. Thus there is an exhaustive set of types of material protected, and an exhaustive set of exclusive rights.

In terms of the types of material, Australian law confers rights in works, also known as "Part III Works" (after the Part of the Act dealing with this): namely, literary works, musical works, artistic works, and dramatic works. It also confers rights in "other subject matter" (Part IV Subject Matter), which cover the kinds of material protected in some countries by 'neighbouring rights': sound recordings, films, broadcasts, and published editions. To be protected, material must fall into one of these exclusive categories. The rights in Part IV subject matters are more limited, because infringement requires exact copying of the actual subject matter (sound-alikes or remakes are not covered).

In terms of the exclusive rights, different kinds of subject matter have different rights. Owners of copyright in works have rights to reproduce, publish (meaning publish for the first time), perform, and adapt the work, and communicate it to the public (including broadcast, or communicate by making available online). The rights of owners of copyright in artistic works are more limited (there is no right to control public display of artistic works). Owners of copyright in other subject matter have the exclusive right to make copies, to communicate them to the public, and to cause them to be heard/seen in public.

Infringement occurs where a person does an act falling within the copyright owner's exclusive rights, without the authorisation of the copyright owner (assuming that one of the exceptions does not apply).

Copyright term[edit]

Before the 2004 Amendments, Australia used a "plus 50" rule to determine when a work entered the public domain. Put simply, a "work" (i.e. a literary, dramatic, musical or artistic work) entered the public domain 50 years following the year of the creator's death, with exceptions. The 2006 Amendments changed the benchmark to "plus 70". This brought Australia into line with the United States of America, the European Union and other regions, but longer than the "plus 50" minimum required by the Berne Convention.[11] The extension to "plus 70" does not apply to crown copyright, to which the "plus 50" rule continues to apply.

Similar to the foreign reciprocity clause in the European Union copyright law, the change to the "plus 70" rule is not retroactive, so that if copyright has expired before the coming into force of the amendment it is not revived. The result is that:

  • Any work that was published in the lifetime of the author who died before 1 January 1955, is out of copyright.
  • Any work that was published in the lifetime of the author who died after 31 December 1954, will be out of copyright 70 years after the author's death.[12]

Also any work that was published after the death of the author, will be out of copyright 70 years after the year of first publication. Unpublished works hold copyright indefinitely.[citation needed]

Photographs, sound recordings, films, and anonymous/pseudonymous works are copyright for 70 years from their first publication. Television and sound broadcasts are copyright for only fifty years after the year of their first broadcast (though the material contained in the broadcast may be separately copyrighted). Most other works are also dated from the first publication/broadcast/performance where this occurred after the author's death.

The period of 70 years is counted from the end of the relevant calendar year.

The United States Sonny Bono Copyright Term Extension Act (1998) defines an entirely different rule based on the year of first publication in the USA. Generally, anything published before 1923 is in the public domain. An interesting consequence of this for the Internet is that a work may be in the public domain in the US but not in Australia, or vice versa. It is important to note that except for the works falling under the "Rule of the shorter term", copyright does not depend on the country of origin, the country of publication, or the nationality of the author. A work published in the US by a British author may still be in the public domain in Australia if the author died more than 70 years ago or died before 1956, whichever is the shorter.

Fair dealing and other exceptions[edit]

The main exceptions to copyright infringement in Australia come under the general heading fair dealing. Fair dealing is comparable to the United States' fair use; it is a use of a work specifically recognised as not being a copyright violation. However, unlike fair use, in order to be a fair dealing under Australian law a use must fall within a range of specific purposes. These purposes vary by type of work, but the possibilities are:

  • review or criticism
  • research or study
  • news-reporting
  • judicial proceedings or professional legal advice
  • parody or satire (added by the Copyright Amendment Act 2006)

In order for a certain use to be a fair dealing, it must fall within one of these purposes and must also be 'fair'. What is fair will depend on all the circumstances, including the nature of the work, the nature of the use and the effect of the use on any commercial market for the work.

Fair dealing is not the same as fair use, a term which is generally used in relation to the USA's open ended exception, which allows any use (regardless of purpose) as long as it is 'fair'. This has, for example, been interpreted by US courts to allow for reasonable personal use of works, e.g. media-shifting, which would not necessarily be permitted under Australia's fair dealing laws. Australian copyright law does, however, have a number of additional specific exceptions which permit uses which may fall outside of both fair dealing and fair use. For example, a number of exceptions exist which permit specific uses of computer software.

In late 2006, Australia added several 'private copying' exceptions. It is no longer an infringement of copyright to record a broadcast to watch or listen at a more convenient time (s 111), or to make a copy of a sound recording for private and domestic use (e.g., copy onto an iPod) (s 109A), or make a copy of a literary work, magazine, or newspaper article for private use (43C).

Australia also has:

  • a special division of exceptions applying to computer programs (for interoperability, security testing, normal use);
  • a special division of exceptions applying to artworks in public places (to allow photography, incidental filming etc.);
  • statutory (i.e. compulsory) licenses that allow use by schools, universities, and others on payment of a license fee set either by agreement or by the Copyright Tribunal (see below).

Because Australian copyright law recognises temporary copies stored in computer memory as 'reproductions' falling within the copyright owner's exclusive rights, there are also various exceptions for temporary copies made in the ordinary course of use or communication of digital copies of works.

Moral rights[edit]

In 2000, moral rights were recognised in Australian copyright legislation. Only individuals may exercise moral rights. The moral rights provided under Australian law now are:

  • A right of attribution
    • the right to be clearly and reasonably prominently identified as the author, in any reasonable form
    • the right to avoid false attribution, where the work is falsely presented as being another's work
  • Integrity of authorship
    • the right to not have the work treated in a derogatory manner (this is a right to protect the honour and reputation of the author)

Automatic resale rights (royalty payments to the author on subsequent resales of the original and reproductions) are not covered by Australian legislation. To the disappointment of artists' groups, the Australian government quietly announced its intention not to pursue resale rights (droit de suite) in 2006.

There are also proposals in Australia for the recognition of "Indigenous communal moral rights", aimed at assisting indigenous people to protect the integrity and sanctity of indigenous culture. A draft bill was circulated to a limited set of stakeholders in 2003; since then the Bill has been listed as one the government planned to pass, but has yet to be introduced.

From mid-2007, performers have also been granted moral rights in recordings of their performances, similar, but not identical, to the moral rights granted to authors.[13] These were introduced as a result of Australia's ratification of the WIPO Performances and Phonograms Treaty, which was required by the Australia's free trade agreement with Singapore, and the Australia-United States Free Trade Agreement.

Ownership of copyright[edit]

Copyright is free and automatic upon creation of the work. In general, the first owner of copyright will be the author (for literary, musical, dramatic and artistic works) or producer (for sound recordings and films) or broadcaster (for broadcasts). Under Australian law, where an employee is the author, the first owner of copyright is the employer (this is slightly different from the US works-made-for-hire doctrine: in Australia, duration of copyright is still measured by the lifetime of the employee author). In 2004-2005, Australia also introduced some complicated provisions that give performers part ownership rights in sound recordings, and directors some limited ownership rights in relation to films.

In the case of a photograph commissioned for a "private or domestic purpose", the copyright will be owned by the commissioner of the work. The "private and domestic purposes" condition took affect on 30 July 1998, prior to this the copyright of all commissioned photographs was assigned to the commissioner.[14]

A copyright notice (©) is not required on a work to gain copyright, but only the copyright owner is entitled to place a notice. It is useful in publishing the date of first publication and the owner. Where a copyright notice is used, the onus in infringement proceedings is on the defendant to show that copyright does not subsist or is not owned by the person stated in the notice.

Government-owned copyright[edit]

Main article: Crown Copyright

The Australian Commonwealth and State governments routinely own copyright in Australia. While this could be seen as being due to the concept of the Crown being traditionally paramount rather than the people, it is more influenced by the then British Commonwealth acting as a copyright policy-making body in the 1950s, which was the basis of the 1968 Copyright Act.

The Australian government does not infringe copyright if its actions (or those of an authorised person) are for the government. A "relevant collecting society" may sample government copies and charge the government.

The State governments follow different practices in regard to licensing, fees and waivers.

The Australian Attorney-General's Copyright Law Review Committee completed a large review of Crown Copyright in April 2005. In summary, the Committee recommended that the Crown be treated like any other employer (i.e., owner of material produced by its employees), and that for certain materials (legislation, government reports, commissions of inquiry reports) either copyright be removed, or a generous and generalised license be granted for re-use. As of early 2007, several governments appear to be considering the use of open licenses modelled along the lines of the Creative Commons model.

Copyrights owned by the Crown in Australia have different durations to publicly held copyrights, as below:

Published literary, dramatic or musical works (includes published official records) 50 years after the end of the year in which the work is first published
Unpublished literary, dramatic, musical works Copyright subsists indefinitely
Artistic works 50 years from the end of the year when made
Photographs taken before 1 May 1969 50 years from the end of the year when made
Photographs taken after 1 May 1969 50 years from end of year of first publication

Composite copyright[edit]

Material can contain multiple copyrights, that are not diminished by their combination or mingling. For example, each portion of a television broadcast is treated separately, such as the visual images, soundtrack, and any scripts.

Copyright Tribunal[edit]

The Copyright Tribunal was established under the Copyright Act 1968, and has certain powers relating to royalties and licensing. It receives operational support from the Federal Court of Australia.

It has been suggested that it is somewhat more sympathetic to rights owner interests rather than user interests; for instance, by ruling to increase royalty rates under the Part VB Educational Statutory licence without a submission to this effect from either party in c.2003. This would normally be considered unusual in a common law adversarial system.[citation needed]

Collecting societies[edit]

A number of copyright collecting societies operate in Australia. Collecting societies are established to collect royalties for uses of copyright material on behalf of authors and copyright owners: they assist to overcome the significant transaction costs that would face individual creators in monitoring, enforcing, and licensing their rights. A notable feature of some of the Australian collecting societies is that some are 'declared' to be the society with the function of being the sole collector of royalties under the statutory licenses. The collecting societies in Australia are:

Timeline of Australian copyright law[edit]

  • 1869 - First colonial copyright statute is passed in Victoria. South Australia, New South Wales and Western Australia enact similar laws in 1878, 1879 and 1895 respectively.
  • 1901 - Federation of Australia. The Federal Parliament, pursuant to section 51(xviii) of the Australian Constitution, is granted the power to make laws with respect to "Copyrights, patents of inventions and designs, and trade marks."
  • 1905 - Copyright Act 1905 (Cth) is passed.
  • 1912 - Copyright Act 1912 (Cth) is passed. Pursuant to section 8 of that Act, the entire Copyright Act 1911 (Imp), passed by the Parliament of the United Kingdom, is enacted into the law of Australia.
  • 1958 - In Copyright Owners Reproduction Society v E.M.I. (Australia) the High Court of Australia finds that the new UK copyright statute, the Copyright Act 1956, does not apply in Australia and the 1911 Imperial Act remains law.
  • 1959 - The Committee to Consider What Alterations Are Desirable in the Copyright Law of the Commonwealth (Spicer Committee) delivers its final report. It recommends that the majority of provisions appearing in the Copyright Act 1956 (UK) should be adopted). However, another eight years passes before a new Australian statute is introduced.
  • 1966 - Dr David Malangi Daymirringu's mortuary rites story bark painting was used by the Reserve Bank of Australia on the one dollar note without his permission. Compensation and credit were later supplied.
  • 1968 - Copyright Act 1968 (Cth) is enacted. It repealed the 1912 and the accompanying 1911 statutes.
  • 1973, 1976, 1977, 1979, 1980, 1981, 1982, 1983 - various amendments
  • 1984 Amendment, defined computer program in the Copyright Act
  • 1985, 1986, 1987, 1988 - various amendments
  • 1989 - Copyright Amendment Act 1989 (repealed)
    • Levy introduced on blank tapes
  • 1991, 1992 - various amendments
  • 1992 - Autodesk Inc. v. Dyason (1992) 173 CLR 330 F.C. 92/001
  • 1993 amendment
  • 1993 - Australian Tape Manufacturers Association Ltd And Others v. The Commonwealth Of Australia (1993) 176 CLR 480 FC 93/004
    • The High Court struck down the 1989 levy as, essentially, badly located and unfair tax law and not a royalty.
  • 1994 (3x) - various amendments
  • 14 August 1997 - Telstra Corporation Limited v Australasian Performing Right Association Limited
  • 1998 (3x), and 1999 (2x) - various amendments
  • 2000 - Copyright Amendment (Digital Agenda) Act
  • 2000 - Copyright Amendment (Moral Rights) Act
  • 2001 - Law and Justice Legislation Amendment (Application of Criminal Code) Act
  • 26 July 2002 - Kabushiki Kaisha Sony Computer Entertainment v Stevens [2002] FCA 906 (26 July 2002)
  • 2003 - Copyright Amendment (Parallel Importation) Act
    • Made some provisions for parallel importing, affecting the 'grey market'.
  • 2003 - Designs (Consequential Amendments) Act
  • November 2003 - Three Australian students received criminal convictions for copyright infringement, receiving a mix of suspended sentences, a fine, and community service.
  • 7 February 2004 - KaZaA's Sharman Networks and Brilliant Digital Entertainment in Australia were raided for copyright violations using Anton Piller orders, along with the University of NSW, University of Queensland, Monash University, Telstra BigPond and three Sydney Internet service providers. The investigation was backed by Universal, EMI, BMG, Festival Mushroom Records, Sony and Warner Music.
  • 8 February 2004 - Australia and the United States agree the text for a bilateral free trade agreement (AUSFTA). The copyright-related parts of the Intellectual Property Chapter were:
    • Longer duration of copyright
    • Agreed standards for: copyright protection, copyright infringement, remedies and penalties
    • WIPO Internet Treaties to be implemented by "entry into force" of the FTA
    • Fast-tracking copyright owners engagement with Internet Service Providers and subscribers to deal with allegedly infringing copyright material on the Internet
    • Tighter controls on circumventing technological protection of copyright material, with a possibility of public submissions
    • Tougher on unauthorised satellite Pay-TV signal decoding
  • 9 February 2004 - Australia and the United States sign the FTA.
  • August 2004 - US FTA Implementation Act passes Senate, with amendments. References to documents and commentary.
  • November 2004 - KaZaA case starts in Federal Court.
  • December 2004 - Copyright Legislation Amendment Act passes, affecting parallel importing, temporary copies and Internet Service Providers' liability for taking down alleged infringing material.
  • 1 January 2005 - The U.S.-Australia Free Trade Agreement (FTA) officially comes into force.
  • September 2005 - Federal Court of Australia finds Kazaa liable for copyright infringement and hands down judgment in favour of Universal Music Australia Pty Ltd.[15]
  • December 2006 - Copyright Amendment Act 2006 (Cth) is passed. Effective January 2007, the Act (a) strengthens criminal infringement provisions, (b) adds new exceptions including for parody or satire, and private copying, (c) strengthens anti-circumvention law to make it more like the US Digital Millennium Copyright Act (as required by the Australia-US FTA), and (d) makes some changes to provisions affecting libraries and educational institutions.

See also[edit]

References[edit]

  1. ^ Davison, Mark J; Ann Louise Monnotti & Leanne Wiseman (2008). Australian intellectual property law. Cambridge University Press. p. 180. ISBN 978-0-521-61338-5. 
  2. ^ Davison, Mark J; Ann Louise Monnotti & Leanne Wiseman (2008). Australian intellectual property law. Cambridge University Press. p. 181. ISBN 978-0-521-61338-5. 
  3. ^ Davison, Mark J; Ann Louise Monnotti & Leanne Wiseman (2008). Australian intellectual property law. Cambridge University Press. p. 181. ISBN 978-0-521-61338-5. 
  4. ^ Davison, Mark J; Ann Louise Monnotti & Leanne Wiseman (2008). Australian intellectual property law. Cambridge University Press. p. 181. ISBN 978-0-521-61338-5. 
  5. ^ Davison, Mark J; Ann Louise Monnotti & Leanne Wiseman (2008). Australian intellectual property law. Cambridge University Press. p. 182. ISBN 978-0-521-61338-5. 
  6. ^ Davison, Mark J; Ann Louise Monnotti & Leanne Wiseman (2008). Australian intellectual property law. Cambridge University Press. p. 182. ISBN 978-0-521-61338-5. 
  7. ^ Davison, Mark J; Ann Louise Monnotti & Leanne Wiseman (2008). Australian intellectual property law. Cambridge University Press. pp. 182–183. ISBN 978-0-521-61338-5. 
  8. ^ Davison, Mark J; Ann Louise Monnotti & Leanne Wiseman (2008). Australian intellectual property law. Cambridge University Press. p. 183. ISBN 978-0-521-61338-5. 
  9. ^ Davison, Mark J; Ann Louise Monnotti & Leanne Wiseman (2008). Australian intellectual property law. Cambridge University Press. p. 183. ISBN 978-0-521-61338-5. 
  10. ^ Davison, Mark J; Ann Louise Monnotti & Leanne Wiseman (2008). Australian intellectual property law. Cambridge University Press. p. 183. ISBN 978-0-521-61338-5. 
  11. ^ Art. 7.1 Berne Convention.
  12. ^ http://www.copyright.org.au/admin/cms-acc1/_images/12971023745265e551e964e.pdf
  13. ^ http://www.ag.gov.au/www/agd/agd.nsf/Page/Copyright_IssuesandReviews_Moralrights
  14. ^ "Rights and the Pictures Collection". National Library of Australia. 
  15. ^ J, Wilcox. "Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2005] FCA 1242". AustLii. 

Bibliography[edit]