Importation of Films Act 2009 in Australia

1. Challenging the legislation on the basis of its valid application will be a failure

Elements of the law: As provided by the Australian constitution, the federal government (commonwealth) has exclusive powers to make laws on “trade and commerce, taxation, defense, foreign affairs, immigration and other matters and issues that is national in scale.[1]  The power to make laws rests on the federal legislature which follows a bicameral system composed of the House of the Senate house and the House of Representatives.[2] In view of the federal government’s concern over the growing case of pirated DVD’s being brought into Australia and in response and commitment to an international treaty about intellectual property rights protection, the federal government passed the Importation of Films Act pf 2009.  The purpose of which is to cover all illegal importation and not just those who could be shown to be making a profit

Facts of the Case: Anne returned to Perth Western Australia from Singapore just before the start of semester. She is therefore a resident of Perth and a citizen of Australia.   She brought with her 10 pirated DVDs she purchased in Singapore.  She was charged with a breach of s4 of The Importation of Films Act 2009, which was just passed into legislation through both houses of federal parliament and assented to on January 2009. Her DVD’s were seized and she was told that she will be fined and can be imprisoned.

Application of the Law to the Facts: Anne’s plan to challenge the charge on the basis that the federal government has no power to pass this law is invalid and futile.  Copyright and piracy issues that fall under the category of trade and commerce is also a national concern and therefore within the jurisdiction of the federal government to address.  Moreover, the law had been passed following the mandated process of creating laws.  The legislation has passed through both the lower and upper chambers of the federal legislature and assented upon and therefore validly ratified. And federal laws apply to all Australia including its citizens and foreign visitors.  While states like Western Australia have independent legislative power and may have enacted an anti piracy law whose contents may be inconsistent with what the federal law provides, the federal laws always prevail.[3]  Moreover, following the objective for the enactment of the Importation of Films Act 2009 as contemplated by the lawmakers, the law also applies to Anne even if she intends to use the pirated DVDs for personal use or other purposes other than making a profit

The Importation of Films Act 2009 is therefore valid because the federal government has the authority to create such law and it has been ratified following proper legislative procedures. The Importation of Films Act of 2009 correctly applies to Anne because federal laws apply to the whole of Australia and incase where there is a disparity between the provisions of the state law and federal law, the federal law prevails.  Finally, the main purpose of the federal law was to discourage the importation of pirated DVDs into Australia whether for profit or not.  Hence, regardless of Anne’s purpose for bringing the pirated DVD’s, she is legally bound by its provisions.

II Anne is guilty as charged but exempted from the imposition of penalty.

Elements of the Law: The Importation of Films Act 2009 (Cth) has the following elements: “Import” pertains to the bringing into Australia any pirated DVDs whether for private or business use. “Pirated” means the unauthorized copying of any film to DVD format. “Unauthorized” means without the permission of the rightful copyright owner of the film, be that a natural person or a corporation. Importing pirated DVDs into Australia is an offence. Penalty is not imposed for first time offenders of such act or the number of pirated DVDs brought is insignificant.

Facts of the Case: Ann brought 10 DVD’s from Singapore to Australia upon her return to study.  She brought the DVDs for her own viewing pleasure.  She bought the DVDs from a shop in Singapore that claimed that the DVD’s are genuine copies. The same shop was later shut down for piracy just after Anne left for Singapore.

Application of the Law to the Facts:  That Ann brought the DVDs from Singapore to Australia shows that she is importing DVD’s.  That the Singaporean shop was later closed down by the owner of the copyright of the films, Movies Inc. proves the copies of the DVDs where unauthorized and therefore pirated.  Whether Ann had brought the DVD for profit or for personal use is insignificant because the law is clear in defining “importing” as bringing into Australia any pirated DVDs whether for private or business use. Moreover, the law explicitly states that its main purpose is to discourage the importation of pirated DVDs into Australia.  Ann is therefore guilty of importing pirated DVDs to Australia.

However, while Ann is guilty of breaching section 4 of the Importation of Films Act 2009, she will not be penalized for her offense because she is a first time offender.  Considering that the law was just passed January of this year and Anne just returned for the coming school year, it was her first time to be coming from abroad when the law was implemented and therefore, it was also her first time to be guilty of such offense.  The penalty of $10,000 or a period of imprisonment not exceeding 6 months does not apply to Ann.  Following the Literal Rule or plain meaning of statutory interpretation, judges must simply follow or take what was literally stated by the legislated law, instead of trying to conduct an interpretation of what the law means.[4] In which case, no penalty can be imposed on Anne for being a first time offender.

Interpretation of the law: The law also states that penalty is not imposed if the number of pirated DVDs brought is insignificant. “Insignificant” can be interpreted to ascertain the objective of the person and to determine the deliberate or unintentional motives to pirate DVDs. In the case of Anne, the number of pirated DVDs she brought may be considered insignificant and can evince her claim that her purpose was for personal viewing. In which case, the insignificant number of DVDs that she brought also exempts her from the penalty provided by the law.

In contrast to bringing 1,000 pirated DVDs or 10 pirated copies of a single film, there is an implied motive of profiting from the importation.  This in turn can be considered “significant” number of DVDs.  Moreover, because of the motivation for profit, there is also an implied motive to deliberately engage in piracy on the part of the importer.  Because pirated DVDs are cheaper, importing them in one’s personal baggage can be a form of smuggling.

The purpose of the Importation of Films Act 2009 is not merely to curb the rising numbers of pirated DVD’s brought into Australia but to support the protection of intellectual property and copyrights.  Hence, the law was principally created against piracy and pirates. This mischief rule of statutory interpretation is when the court tries to determine the intentions of the legislators in enacting the statutory law.  This applies so that the ambivalence of a law will be made in the context of the motives or purpose of the authority that created or formulated it. [5]  In the case of Anne, she was not aware that she has engaged in piracy. She brought the DVD’s in good faith that these are “authorized” or “genuine” copies.  There is a sign that reads “Purchase genuine copies” in the Singaporean store where she purchased the DVDs. Moreover, she was not aware the store was selling pirated DVD’s because it was just shut down after she left for Singapore.  Therefore, Anne has no deliberate intention of patronizing pirated DVDs or engaging in the importation of pirated DVDs.  These facts can be taken as mitigating circumstances that can further exempt Anne from the imposition of the penalty of the law.

Conclusion

The federal law of the importation Films Acts rightly applies to Anne.  Following the facts of the case, she is guilty of breaching section four thereof.  However, being a first time offender and due to the insignificant quantity of pirated DVD’s she brought, the penalty for the violation of such law will not be imposed as provided.  Moreover, Anne also did not knowingly and willfully engaged in piracy or patronizing piracy.  She brought the DVD’s in the store in good faith that they are genuine and authentic copies.  However, this only evinces her innocence in patronizing pirated DVD but not of violating the “Importation of Films Act”.

Anne need not try to challenge the charge.  The most that law can do to her is to confiscate the pirated DVDs she brought. She need not escalate the situation into a full blown case.  What she can do is to make a plea or bargain with the authorities not to confiscate the pirated DVD’s by stressing the she bought them in good faith to be legal copies.  She can then make a promissory statement to be more cautious in the items she buys outside the country and pledge not to bring pirated DVDs again.

References

Borchardt, Dietrich Hans, Australian official publications, Longman Cheshire, 1979

Graham, Randy N. Statutory Interpretation: Cases, Text and Materials, Emond Montgomery Publication, 2002

Hanson, S. Legal Method. (Cavendish Publishing. 1999)

Howard, Colin, Australian federal constitutional law, Law Book Company, 1968

Rhodes, R. A. W. Binder, Sarah A. and Rockman, Bert A. The Oxford Handbook of Political Institutions, Oxford University Press US, 2008

[1] Dietrich Hans Borchardt, Australian official publications, (Longman Cheshire, 1979)

[2] R. A. W. Rhodes, Sarah A. Binder, Bert A. Rockman, The Oxford Handbook of Political Institutions, (Oxford University Press US, 2008)

[3] Colin Howard, Australian federal constitutional law, (Law Book Company, 1968)

[4] S. Hanson, Legal Method. (Cavendish Publishing. 1999)

[5] Randy N. Graham, Statutory Interpretation: Cases, Text and Materials, (Emond Montgomery Publication, 2002)