Phonographic Performance Company of Australia Limited & Ors v Commonwealth of Australia & Anor [2011] HCATrans 2

The High Court of Australia, constituted by Gummow ACJ, heard an application by the Phonographic Performance Company of Australia Limited and others (the applicants) against the Commonwealth of Australia and another (the respondents). The dispute concerned the validity of certain legislative provisions.

The primary legal issue before the Court was whether sections 101 and 102 of the *Copyright Amendment Act 2006* (Cth) were invalid by reason of inconsistency with the implied freedom of political communication guaranteed by the Australian Constitution. The applicants contended that these provisions, which imposed obligations on copyright owners to provide information to the Australian Competition and Consumer Commission (ACCC) regarding their dealings with third parties, unduly burdened the implied freedom.

Gummow ACJ considered the nature of the implied freedom of political communication and the test for determining whether a law impermissibly burdens that freedom. His Honour examined the purpose and effect of the impugned sections, noting that they required copyright owners to disclose information that could be used by the ACCC in its investigations into potential anti-competitive conduct. The Court applied the established principles that a law will be invalid if it prohibits or unreasonably burdens the communication of political or governmental matters, and that the onus is on the Commonwealth to demonstrate that the law is reasonably appropriate and adapted to serve a legitimate purpose in a manner compatible with the preservation of the implied freedom.

The application was dismissed.