A BILL FOR
An Act to authorise the making and to regulate the use of sound recordings by certain persons of proceedings of certain courts and commissions.
BE it enacted by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows:-
Short title.
1. This Act may be cited as the “Courts and Commissions (Sound Recordings) Act 1984”
Commencement.
2. (1) Sections 1 and 2 shall commence on the date of assent to this Act
(2) Except as provided by subsection (1), this Act shall commence on such day as may be appointed by the Governor in respect thereof and as maybe notified by proclamation published in the Gazette.
Interpretation.
3.(1) In this Act except in so far as the context or subject-matter otherwise indicates or requires -
“author”, in relation to proceedings of a court or commission means a person who, in the opinion of the court of commission is bona fide engaged or intending to engage in the writing of a book or article on a subject in respect of which those proceedings are relevant:
“authorised person”, in relation to proceedings of a court or commission means -
(a) a person who is a party to those proceedings
(b) in the case of a Royal Commission issued under the Royal Commissions Act 1923, to a person to make an Inquiry -
(i) any counsel or solicitor appointed by the Crown to assist the Royal Commission, and
(ii) a person authorised to appear at the inquiry,
(c) in the case of a Special Commission within the meaning of section 3 (1) of the Special Commissions of Inquiry Act, 1983 -
(d) a legal representative of a person referred to in paragraph (a), (b)(ii) or
(e) a representative of a news medium or an author;
“commission” means -
(a) a commission within the meaning of section 4 of the Royal Commissions Act, 1923; or
(b) a Special Commission within the meaning of section 3(1) of the special Commissions of Inquiry Act, 1983, and includes the Commissioner, within the meaning of that subsection to whom the commission establishing the Special Commission was issued;
“court” means -
(a) the Supreme Court of New South Wales;
(b) the Land and Environment Court;
(c) the Industrial Commission of New South Wales;
(d) the District Court of New South Wales;
(e) the Workers’ Compensation Commission of New South Wales;
(f) court of petty sessions;
(g) a person holding an inquest or inquiry under the Coroners Act, 1980; or
(h) a person who or a body which is prescribed for the purposes of this definition or a member of a class of persons or bodies so prescribed;
“regulations” means regulations made under this Act;
“representative of a news medium”, in relation to proceedings of a court of commission means a representative of -
(a) a newspaper, journal, magazine or other publication that is published daily or at other intervals; or
(b) a radio station or television station that is -
(i) controlled by the Australian Broadcasting Corporation or the Special Broadcasting Service; or
(ii) licensed in accordance with the provisions of the Broadcasting and Television Act 1942 of the Commonwealth,
who is present at those proceedings in order to enable a report of or comment upon those proceedings to be published in the newspaper, journal magazine or other publication or to be broadcast on the radio station or television station;
“sound recorder” means a tape recorder or any other instrument for recording sound.
Report to be an aid to interpretation.
4.(1) It is the intention of Parliament that this Act and the regulations are to give effect to recommendations made in a report of the Law Reform Commission laid before each House of Parliament, being the report on recording of court proceedings and the proceedings of royal commissions and special commissions of inquiry by representatives of the news media and other persons, and accordingly, in the interpretation of this Act and the regulations, regard may be had to that report, including the draft legislation set out in that report.
(2) Subsection (1) does not prevent regard being had, in the interpretation of this Act and the regulations, to any matter to which regard might have been had if that subsection had not been enacted.
Proceedings to which Act does not apply.
5. Nothing in this Act applies to or in respect of the proceedings of a commission which has commenced to make but which has not completed the making of an inquiry before the day appointed and notified under section 2(2).
Sound recordings to which Act does not apply.
6. Nothing in this Act applies to or in respect of the making or use of a sound recording for the purposes of an official transcript of the proceedings of a court or commission.
Sound recordings by authorised persons.
7. (1) An authorised person who is entitled to be present at the proceedings of a court or commission may, without having to obtain the leave of the court or commission use a sound recorder in order to make a sound recording of the whole or any part of those proceedings.
(2) Nothing in subsection (1) affects any entitlement of an authorised person to take handwritten notes of the whole or any part of the proceedings of a court or commission
(3) Nothing in subsection (1) prevents a court or commission from prohibiting or ordering the cessation of the use of a sound recorder by an authorised person where the court or commission believes, on reasonable grounds -
(a) that substantial interference with the administration of justice or the exercise of functions of the court or commission would occur if the sound recorder were to be used; or
(b) that the use of the sound recorder constitutes a substantial interference with the administration of justice or the exercise of functions of the court or commission.
Public broadcasting of sound recordings.
8. A person shall not publicly broadcast the whole or any part of a sound recording of proceedings of a court or commission except -
(a) with the leave of the court or commission; and
(b) in accordance with such terms or conditions as may have been imposed by the court or commission in granting that leave.
Prohibition on copying of sound recordings.
9. A person shall not make or have in his or her possession a sound recording which is a copy of the whole or any part of a sound recording of proceedings of a court or commission.
Particular restrictions relating to sound recordings by parties to proceedings, their legal representatives and others.
10.(1) In this section, “authorised person” does not include a representative of a news medium or an author.
(2) A person may, in respect of a sound recording of proceedings of a court or commission made by an authorised person use the sound recording only for the purposes of those proceedings, except-
(a) with the leave of the court or commission; and
(b) in accordance with such terms and conditions as may have been imposed by the court or commission in granting that leave.
(3) An authorised person may, for the purposes of subsection (2), in respect of a sound recording of proceedings of a court or commission made by the authorised person make the sound recording available only to -
(a) another such authorised person in relation to those proceedings or
(b) a servant or agent of the authorised person or of another such authorised person in relation to those proceedings.
Particular restrictions relating to sound recordings by representatives of news media.
11.(1) A person may in respect of a sound recording of proceedings of a court or commission made by a representative of a news medium use the sound recording only for the purpose of reporting or commenting upon those proceedings in a newspaper, journal magazine or other publication or on a radio station or television station referred to in the definition of “representative of a news medium” in section 3(1), except -
(a) with the leave of the court or commissions and
(b) in accordance with such terms and conditions as may have been imposed by the court or commission in granting that leave.
(2) A representative of a news medium may, for the purposes of subsection (1), in respect of a sound recording of proceedings of a court or commission made by the representative of the news medium, make the sound recording available only to a servant or agent of the publisher or broadcaster of whom the representative of the news medium is such a representative.
Particular restrictions relating to sound recordings by authors.
12.(1) A person may in respect of a sound recording of proceedings of a court or commission made by an author, use the sound recording only for the purposes of a book or article by the author on a subject in respect of which those proceedings are relevant except -
(a) with the leave of the court or commission; and
(b) in accordance with such terms and conditions as may have been imposed by the court or commission in granting that leave.
(2) An author may, for the purposes of subsection (1), in respect of a sound recording of proceedings of a court or commission made by the author, make the sound recording available only to a servant or agent of the author.
Restriction on publication of evidence.
13. Nothing in this Act affects any order or direction of a court or commission preventing or restricting the publication of any evidence given before the court or commission
Sound recordings by persons other than authorised persons.
14. Nothing in this Act affects any power of a court or commission to permit, to prohibit or to control and regulate, subject to such terms or conditions as the court or commission thinks fit, the use of sound recorders for the purpose of making a sound recording of the whole or any part of the proceedings of the court or commission by persons who are not authorised persons.
Prohibition on possession of sound recordings by certain persons.
15. A person who is not authorised to do so by this Act, a court or a commission shall not knowingly have in his or her possession a sound recording of the whole or any part of the proceedings of a court or commission.
Status of official transcript.
16. A sound recording made pursuant to this Act of any proceedings of a court or commission shall not, except with the leave of the court or commission be used to correct or call in question the whole or any part of an official transcript of those proceedings.
Contempt of court or commission.
17. (1) A person who contravenes or fails to comply with a provision of this Act is -
(a) where the contravention or failure occurs in the face or within ‘the hearing of a court or commission - guilty of contempt in the face or within the hearing of the court or commission; or
(b) where the contravention or failure occurs otherwise than in the face or within the hearing of a court or commission- guilty of contempt otherwise than in the face or within the hearing of the court or commission.
(2) Proceedings, pursuant to subsection (1), for a contempt of a court or commission shall not be instituted except by or with the written consent of the Minister or on the motion of a court or commission.
Offences.
18. A person who contravenes or fails to comply with a provision of this Act is guilty of an offence against this Act and liable to a penalty not exceeding $2,000.
Proceedings for offences.
19. Proceedings for an offence against this Act maybe taken before a court of petty sessions constituted by a stipendiary magistrate sitting alone.
Double jeopardy.
20. Where an act or omission constitutes contempt of a court or commission under section 17 and an offence under section 18, the offender shall not be liable to be punished twice in respect of the act or omission.
Rules of court.
21.(1) Where a court has power to make rules regulating the practice or procedure of the court, the court may make rules regulating its practice and procedure in respect of the making and use of sound recordings under this Act.
(2) Subsection (1) does not limit the rule- making powers conferred on a court by or under any other Act or law.
Regulations.
22.(1) The Governor may make regulations not in consistent with this Act for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) A provision of a regulation may -
(a) apply generally or be limited in its application by reference to specified exceptions or factors;
(b) apply differently according to different factors of a specified kind; or
(c) authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body;
or may do any combination of those things.
