Legal Deposit Act 2012

 

Legal Deposit Act 2012

Contents

Part 1 — Preliminary

1.Short title2

2.Commencement2

3.Purpose of Act2

4.Terms used2

5.Term used: WA Internet document5

6.Crown bound5

Part 2 — Deposit of public documents with State Librarian

7.Application of Part6

8.Copies of public documents to be given to State Librarian6

9.Direction to comply with s. 86

10.State Librarian may grant exemption from s. 87

Part 4 — Legal proceedings

14.Civil action to obtain copies of public documents8

15.Civil action to require publishers to provide assistance to State Librarian9

16.Who may commence criminal proceedings9

17.Other powers of court in criminal proceedings9

Part 5 — General

18.Publishers to assist State Librarian to preserve and access deposited copies of certain documents11

19.Regulations12

20.Regulations: consultation13

Part 6 — Consequential amendments to Library Board of Western Australia Act 1951

21.Act amended14

22.Section 12 amended14

23.Section 13 amended14

24.Section 15 amended14

25.Section 16 amended15

Notes

Compilation table16

Uncommenced provisions table16

Defined terms

 

Legal Deposit Act 2012

An Act to facilitate the preservation of the State’s published documentary heritage for current and future generations by —

·requiring the deposit with the State Librarian of copies of certain published material; and

·authorising the State Librarian to require that certain material published on the Internet be deposited with the State Librarian,

and to make consequential amendments to the Library Board of Western Australia Act 1951 and for related purposes.

The Parliament of Western Australia enacts as follows:

 

Part 1  Preliminary

1.Short title

This is the Legal Deposit Act 2012.

2.Commencement

This Act comes into operation as follows —

(a)sections 1 and 2 — on the day on which this Act receives the Royal Assent;

(b)the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions.

3.Purpose of Act

(1)The purpose of this Act is to facilitate the preservation of the State’s published documentary heritage for current and future generations.

(2)The purpose is to be achieved by —

(a)requiring that copies of certain documents published in the State are deposited with the State Librarian; and

(b)authorising the State Librarian to require that certain documents published on the Internet are deposited with the State Librarian.

4.Terms used

(1)In this Act, unless the contrary intention appears —

Board means The Library Board of Western Australia constituted by the Library Board of Western Australia Act 1951 section 5(1);

document means a document in any form and includes —

(a)any writing on any material (for example, books, periodicals, newspapers, magazines, reports, newsletters, calendars, directories, handbooks, guidebooks, sheet music, maps, plans and pamphlets); and

(b)information recorded, stored or communicated by means of an electronic recording device, computer or other electronic medium (for example, audio cassettes, video cassettes, multimedia kits, computer magnetic tapes, computer optical disks, floppy disks, compact disks, CDROMs and DVDs); and

(c)information recorded or stored by means of any other kind of device or medium (for example, a film, microfilm, microfiche or vinyl record); and

(d)information on a website;

electronic includes electrical, digital, magnetic, optical, electromagnetic, biometric and phototonic;

information includes information in the form of data, text, images or sound;

non‑print public document means a public document that is published in a medium other than print and includes a document of the kind referred to in the definition of document paragraph (b) or (c);

public document —

(a)means a document —

(i)that is printed or produced by any other means in the State or is commissioned to be printed or otherwise produced outside the State (including outside Australia) by a person who is resident in the State or whose principal place of business is in the State; and

(ii)of which one or more copies are published in the State;

but

(b)does not include —

(i)a document on the Internet; or

(ii)a document, or a document belonging to a class of document, that is prescribed by the regulations not to be a public document;

publish means —

(a)in relation to a document other than a document on the Internet, to make the document publicly available by —

(i)issuing one or more copies of the document to the public; or

(ii)making one or more copies of the document available to the public upon request;

or

(b)in relation to a document on the Internet, to make the document available to the public on the Internet,

whether or not there is any restriction on members of the public acquiring, accessing or using the document;

publisher means —

(a)in relation to a document other than a document on the Internet, the person who publishes the document; or

(b)in relation to a document on the Internet, the person who has control over the content of the website, or the part of the website, on which the document is located;

restriction, in relation to acquiring, accessing or using a document —

(a)means a physical, technical or mechanical restriction such as the requirement to pay a fee or price, or some other requirement such as the use of a password, that prevents or restricts free public access to the document; but

(b)does not include a legal restriction recorded in or claimed for the document;

State Librarian means the person appointed to the office of State Librarian under the Library Board of Western Australia Act 1951 section 6(1A);

WA Internet document has the meaning given in section 5.

(2)In this Act, unless the contrary intention appears, a reference to a copy of a public document includes a reference to a device or medium that contains a non‑print public document.

5.Term used: WA Internet document

(1)A document published on the Internet is a WA Internet document if —

(a)the publisher of the document is a person who is resident in the State or whose principal place of business is in the State; or

(b)under the regulations, the document is to be taken to be a WA Internet document.

(2)A WA Internet document is the document at a particular point in time, and if that document is subsequently changed in any significant respect, it becomes a different WA Internet document for the purposes of this Act.

(3)A WA Internet document does not include a document, or a document belonging to a class of document, that is prescribed by the regulations not to be a WA Internet document.

6.Crown bound

This Act binds the Crown in right of the State and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

Part 2 — Deposit of public documents with State Librarian

7.Application of Part

(1)This Part applies to a public document that is published on or after the day on which this section comes into operation.

(2)The fact that a document is also published on the Internet does not affect the application of this Part in respect of the document.

8.Copies of public documents to be given to State Librarian

The publisher of a public document to which this Part applies must, in accordance with the regulations, give to the State Librarian, at the publisher’s own expense, the prescribed number of copies (not exceeding 2) of the document.

9.Direction to comply with s. 8

(1)If the State Librarian considers that the publisher of a public document has not given copies of the document to the State Librarian in accordance with section 8, the State Librarian may direct the publisher to do so.

(2)The direction may relate to —

(a)one or more public documents; or

(b)one or more classes of public document.

(3)The direction must be by a written notice signed by the State Librarian and given to the publisher.

(4)The direction must specify —

(a)each public document or class of public document to which the direction relates; and

(b)the period (being at least 30 days after the date of the notice) within which the publisher must comply with the direction; and

(c)any other matter prescribed by the regulations.

(5)The publisher must not, without reasonable excuse, fail to comply with the direction.

Penalty:

(a)for an individual — a fine of $1 000;

(b)for a body corporate — a fine of $5 000.

10.State Librarian may grant exemption from s. 8

(1)The State Librarian may by order exempt a specified person or a specified class of person from section 8 or from specified provisions of the regulations made for the purposes of that section.

(2)An order under subsection (1) may provide for circumstances in which, and conditions subject to which, an exemption is to apply.

(3)An exemption is of no effect at any time when a condition to which it is subject is not being observed.

(4)An order under subsection (1) is subsidiary legislation for the purposes of the Interpretation Act 1984, and section 42 of that Act applies to and in relation to an order as if the order were a regulation.

[Part 3 has not come into operation.]

Part 4  Legal proceedings

14.Civil action to obtain copies of public documents

(1)If the publisher of a public document or a WA Internet document fails to comply with a direction given to the publisher under section 9(1) or 13(1) in respect of the document, the Board may apply to the District Court for an order —

(a)that the publisher give to the State Librarian the copies of the document that ought to have been given to the State Librarian under section 8 or 13(1); or

(b)that the publisher pay to the Board the costs reasonably incurred, or to be incurred, by the Board in obtaining the copies of the document that ought to have been given to the State Librarian under section 8 or 13(1).

(2)The Court may make the order sought if the Court is satisfied —

(a)in the case of a direction under section 9(1), that the publisher did not give copies of the document to the State Librarian in accordance with section 8 and that the publisher, without reasonable excuse, failed to comply with the direction under section 9(1); or

(b)in the case of a direction under section 13(1), that the publisher, without reasonable excuse, failed to comply with the direction under section 13(1).

(3)The order may be on such terms and conditions as the Court thinks fit.

(4)An order under this section is a judgment of the Court and may be enforced accordingly.

(5)This section does not affect the liability of a person under section 9(5) or 13(7).

15.Civil action to require publishers to provide assistance to State Librarian

(1)If the publisher of a non‑print public document or a WA Internet document fails to comply with a direction given to the publisher under section 18(2) to provide reasonable assistance in respect of the document, the Board may apply to the District Court for an order that the publisher provide to the State Librarian the assistance that ought to have been provided in respect of the document under that direction.

(2)The Court may make the order sought if the Court is satisfied that —

(a)the assistance required under the direction was reasonably necessary for the purposes of this Act; and

(b)the publisher, without reasonable excuse, failed to comply with the direction.

(3)The order may be on such terms and conditions as the Court thinks fit.

(4)An order under this section is a judgment of the Court and may be enforced accordingly.

(5)This section does not affect the liability of a person under section 18(6).

16.Who may commence criminal proceedings

Without limiting the functions of the DPP under the Director of Public Prosecutions Act 1991, a prosecution for an offence under this Act may only be commenced by the Board or a person authorised in writing by the Board to do so.

17.Other powers of court in criminal proceedings

(1)If, under section 9(5) or 13(7), a court convicts a person of failing to comply with a direction given to the person in respect of a public document or a WA Internet document, the court may, if the court considers it appropriate in the circumstances of the case —

(a)order the offender to give to the State Librarian the copies of the document that ought to have been given to the State Librarian under section 8 or 13(1); or

(b)order the offender to pay to the Board the costs reasonably incurred, or to be incurred, by the Board in obtaining the copies of the document that ought to have been given to the State Librarian under section 8 or 13(1).

(2)If, under section 18(6), a court convicts a person of failing to comply with a direction given to the person to provide reasonable assistance in respect of a non‑print public document or a WA Internet document, the court may, if the court considers it appropriate in the circumstances of the case, order the offender to provide to the State Librarian the assistance that ought to have been provided in respect of the document under the direction.

(3)An order under subsection (1) or (2) —

(a)may be made on such terms and conditions as the court thinks fit; and

(b)is in addition to any other penalty that may be imposed on the offender; and

(c)may be enforced as if it were a judgment of the court.

Part 5  General

18.Publishers to assist State Librarian to preserve and access deposited copies of certain documents

(1)This section applies to a document that is a non‑print public document or a WA Internet document.

(2)If the State Librarian considers that it is reasonably necessary for the purposes of this Act, the State Librarian may, at any time, direct the publisher of a document to which this section applies to provide, at the publisher’s own expense, reasonable assistance to the State Librarian to enable the State Librarian to preserve and access the copies of the document that are obtained by the State Librarian under this Act.

(3)The direction may relate to —

(a)one or more documents; or

(b)one or more classes of document.

(4)The direction must be by written notice signed by the State Librarian and given to the publisher.

(5)The direction must specify —

(a)each document or class of document to which the direction relates; and

(b)the manner in which the publisher is required to assist the State Librarian; and

(c)the period (being at least 30 days after the date of the notice) within which the publisher must comply with the direction; and

(d)any other matter prescribed by the regulations.

(6)The publisher must not, without reasonable excuse, fail to comply with the direction.

Penalty:

(a)for an individual — a fine of $1 000;

(b)for a body corporate — a fine of $5 000.

(7)The regulations may provide for circumstances in which a direction under this section may require the publisher of a document to provide to the State Librarian a copy of any computer program necessary to enable the State Librarian to preserve and access the copies of the document.

19.Regulations

(1)The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed to give effect to the purposes of this Act.

(2)Regulations made under subsection (1) for the purposes of section 8 may do any or all of the following —

(a)prescribe the number of copies of a public document to be given to the State Librarian under that section, including by prescribing different numbers of copies (not exceeding 2) according to the class of document or such other circumstances or factors as may be specified in the regulations;

(b)specify the period (being not less than 30 days) within which copies of a public document must be given to the State Librarian after it is published;

(c)provide for the manner in which copies of a public document must be given;

(d)provide for circumstances in which copies of a reprint or subsequent edition of a public document are not required to be given;

(e)in respect of cases where a public document is published in copies of a differing quality or standard, specify requirements in relation to the quality or standard of the copies given;

(f)in respect of cases where a public document is published in different formats, specify requirements in relation to the format of the copies given, including by providing for the State Librarian to determine (either generally or in a particular case) the format of the copies given;

(g)in respect of cases where a public document is published in more than one medium —

(i)provide that each of those media is a different public document for the purposes of section 8; or

(ii)provide that section 8 applies only in respect of one or some of those media, and provide for the manner of determining that medium or media;

(h)require materials (for example, containers, wrapping material, notices or instructions) that generally accompany a public document to be given with the copies of the public document;

(i)provide for the issuing of a receipt in relation to copies of a public document given, including circumstances in which a receipt is not required to be issued.

(3)Regulations made under subsection (1) may provide for matters relating to access to or use of the copies of a public document or of a WA Internet document that are obtained by the State Librarian under this Act, including by providing for limitations on access and use.

(4)Subsections (2) and (3) do not limit the making of regulations under subsection (1).

20.Regulations: consultation

(1)Before regulations are made under this Act, the Minister must, as far as is reasonably practicable, consult with any persons who appear to the Minister to be likely to be affected by the regulations.

(2)Consultation may be undertaken in any way that the Minister thinks appropriate in the circumstances, having regard to the number of persons who will be likely to be affected by the regulations.

Part 6  Consequential amendments to Library Board of Western Australia Act 1951

21.Act amended

This Part amends the Library Board of Western Australia Act 1951.

22.Section 12 amended

In section 12 delete “jurisdiction,” and insert:

 

jurisdiction, or proceedings under the Legal Deposit Act 2012 section 14 or 15,

 

23.Section 13 amended

(1)In section 13(1) delete “the regulations” and insert:

 

the Legal Deposit Act 2012

 

(2)In section 13(2)(a) delete “Act; or” and insert:

 

Act or the Legal Deposit Act 2012; or

 

24.Section 15 amended

(1)In section 15(2):

(a)in paragraph (b) delete “Australia.” and insert:

 

Australia; and

 

(b)after paragraph (b) insert:

 

(c)may perform the functions conferred on the Board under the Legal Deposit Act 2012.

 

(2)In section 15 after each of subsections (1)(Aa) to (d) and (2)(a) insert:

 

and

 

25.Section 16 amended

(1)In section 16(1) after “this Act” (first occurrence) insert:

 

and the Legal Deposit Act 2012

 

(2)In section 16(2)(b) delete “this Act.” and insert:

 

this Act and the Legal Deposit Act 2012.

 

 

Notes

This is a compilation of the Legal Deposit Act 2012 and includes amendments made by other written laws. For provisions that have come into operation see the compilation table. For provisions that have not yet come into operation see the uncommenced provisions table.

Compilation table

Short title

Number and year

Assent

Commencement

Legal Deposit Act 2012 (other than Pt. 3)

10 of 2012

21 May 2012

s. 1 and 2: 21 May 2012 (see s. 2(a));
Act other than s. 1, 2 and Pt. 3: 1 Jan 2014 (see s. 2(b) and Gazette 17 Dec 2013 p. 6218)

Uncommenced provisions table

To view the text of the uncommenced provisions see Acts as passed on the WA Legislation website.

Short title

Number and year

Assent

Commencement

Legal Deposit Act 2012 Pt. 3

10 of 2012

21 May 2012

To be proclaimed (see s. 2(b))

 

 

Defined terms

 

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined termProvision(s)

Board4(1)

document4(1)

electronic4(1)

information4(1)

non‑print public document4(1)

public document4(1)

publish4(1)

publisher4(1)

restriction4(1)

State Librarian4(1)

WA Internet document4(1), 5(1)