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Thursday, 26 May 2005
Page: 11

Mr McGAURAN (Minister for Citizenship and Multicultural Affairs) (9:47 AM) —I move:

That this bill be now read a second time.

The purpose of the bill is to protect the Melbourne 2006 Commonwealth (M2006) Games sponsorship and licensing revenue from being undermined by unauthorised use of the Games indicia—which is another word for symbols—and images by corporate competitors of the official Games sponsors. The government adopted a similar approach when it legislated to protect the Sydney Games indicia and images through the Sydney 2000 Games (Indicia and Images) Protection Act 1996, as amended (the Sydney Games act).

The hosting of the 2006 Commonwealth Games provides a unique opportunity to showcase to the world this country’s skills, talents, environment and achievements. Preparations for the Games have proceeded under the guidance of the Melbourne 2006 Commonwealth Games Corporation (M2006 Corporation), and the Victorian Office of Commonwealth Games Coordination (OCGC) together with a high level of cooperation between the Victorian and Australian governments.

In 2001, the Victorian government enacted the Commonwealth Games Arrangements Act 2001 (the Victorian act) to facilitate preparations for the Games, including providing protection for M2006 Games indicia and images. The Victorian act only applies within the state of Victoria and allows Victoria Police to seize goods and advertising material marked with M2006 Games indicia and images from within a Commonwealth Games venue or a designated access area but only during the period 1 January to 31 March 2006.

The M2006 bill is consistent with the approach the Australian government took in protecting Sydney 2000 Games indicia through the Sydney Games act. The bill has been designed to complement the indicia protection provisions of the Victorian act. While the Victorian act gives powers to Victorian Police to seize goods, the bill before the House allows the Australian Customs Service to perform functions similar to those it undertook at the time of the Sydney 2000 Games, by seizing goods marked with unauthorised indicia and images at Australia’s borders.

The task of organising the M2006 Games is large, complex, and expensive. The Victorian government has allocated considerable sums of money in the lead-up to the Games for the refurbishment of facilities and construction of infrastructure, organisation and marketing.

The Australian government is contributing $102.9 million in direct financial assistance and a further $177.9 million through the provision of support services. The Victorian government has indicated the Games budget is $1.1 billion dollars and has committed almost $700 million to finance the M2006 Games.

Beyond the government contributions, the primary sources of revenue for the M2006 Games will be television rights, ticket sales, sponsorship and the licensing of the right to use the Games indicia and images. Licensing and sponsorships are expected to contribute around $130 million to the Games revenue budget.

The government recognises that the preservation of sponsorship revenue is essential to achieving a good budget outcome for the M2006 Games. The ability of the M2006 Corporation to attract sponsors will depend to a large extent on the degree of exclusivity afforded to the licensed indicia and images. Official sponsors recognise the commercial value of associating themselves with events of the magnitude of the Commonwealth Games and are willing to pay considerable sums of money to use the words and symbols associated with the Commonwealth Games.

‘Ambush marketing’, however, has the capacity to seriously erode the official sponsorship revenue if not stopped or minimised. Ambush marketing is the unauthorised association of businesses with the marketing of an event without paying for marketing rights. Typically it is the competitors of official sponsors of major sporting events that engage in these activities. That is stating the obvious. Who else would rise to the opportunity of ambush marketing? Ambush marketing can not only dissuade official sponsors from continuing their association with the Games but it has the potential to substantially reduce the amount sponsors are prepared to pay for the rights.

Therefore, the preservation of sponsorship revenue is not only critical to the protection of official sponsorship but indeed fundamental to achieving a sound financial outcome for the Games and ensuring the least call on the public purse.

The bill will protect the use of a range of words and expressions associated with the M2006 Games such as ‘Melbourne 2006 Commonwealth Games’, ‘M2006 Games’ and ‘Friendly Games’ from ambush marketing and unlicensed commercial use in the lead-up to and during the M2006 Games.

In addition to protecting particular words, numbers and expressions, the bill also provides protection to certain images that in the circumstances of their presentation suggest, or are likely to suggest, a connection with the M2006 Games. These images may be either visual or aural representations. The manner in which M2006 indicia and images will be defined and protected by the M2006 bill is consistent with the approach used to proscribe words, expressions and images under the Sydney Games Act.

The rights in the above protected indicia and images rest with the M2006 Corporation. It has the power to use and to authorise others to use M2006 indicia and images for commercial purposes.

To constitute use for commercial purposes, the M2006 Games indicia or images must be applied to a person’s goods or services for advertising or promotional purposes, or for enhancing the demand for the goods or services, and in a manner which would suggest that the person is or has been a sponsor of, or is or has been providing other support for, the M2006 Games.

In order to enable the public to be aware of the identity of those authorised to use M2006 indicia and images, a register has been established under the Victorian act upon which the M2006 Corporation is responsible for keeping account of authorised users and entering the details onto the register. An entry in the register will include the name of any person authorised by the M2006 Corporation; the date of authorisation; the duration of authorisation; whether the authorisation applies generally or in specified circumstances; and whether the authorisation authorises the use of all M2006 indicia and images or specified kinds of such indicia and images. A person whose name appears on the register constitutes an authorised user of M2006 indicia and images.

While it is important to protect M2006 Games sponsors from ambush marketing, the rights of the community to freedom of expression must also be respected, particularly in relation to words that have passed into common usage. It must therefore be emphasised that restrictions on the usage of the M2006 indicia and images will apply only to unlicensed commercial use of the protected indicia and images. This is consistent with the approach adopted to protect Sydney 2000 Games indicia and images.

Moreover, it is made clear in the bill that the legislation is not intended to affect the working of many aspects of everyday business. It is recognised that some individuals and corporations, such as the Australian Commonwealth Games Association (ACGA) and the Commonwealth Games Federation (CGF), already use the indicia prescribed in the legislation in conjunction with their goods and services. The bill fully protects the rights of the ACGA and the CGF to use M2006 indicia to carry out its business functions.

Just as the Sydney 2000 Games Act permitted the use of Sydney 2000 Games indicia or images solely for the purposes of providing information, or for the purposes of criticism or review, so does this bill in relation to M2006 indicia and images. As you would appreciate, Mr Deputy Speaker, the lawyers have to allow for every possible contingency and the cunningness and resolve of ambush marketers to exploit any possible loophole whatsoever to ride off the back of the authorised sponsors and investors. Consequently this bill at first glance or reading may appear complex but it is indeed necessary and logical and will provide protection for the authorised indicia and images. The bill therefore permits the provision of information for the purposes of reporting news and presentation of current affairs, the factual description of goods or services provided by a business (such as stating that accommodation is available at a hotel that is located near a Commonwealth Games site), or factual statements by an athlete to promote their own achievements. Consequently the bill strikes the correct balance between the commercial exploitation of the Commonwealth Games indicia and images and that which is part of common parlance and necessary for the reporting or promotion of the Games in everyday activities. Examples of criticism and review permitted by this bill include reports which are likely to appear in newspapers, magazines or similar periodicals, in radio and television broadcasts, or in cinematographic films.

The government also recognises that the reasonable needs of sporting bodies in relation to fundraising for and promotion of their preparation of athletes and teams for the M2006 Games should be allowed to continue. Those reasonable needs could involve use of the M2006 Games indicia or images for the purposes of providing factual information. The bill obviously is not intended to affect this type of use.

Similar to provisions contained in the Sydney 2000 Games Act, this bill also provides various remedies to the M2006 Corporation and authorised users to enforce their rights in relation to the Commonwealth Games indicia and images. This means the M2006 Corporation or an authorised user may bring an action against an unauthorised user—we would hope so. The remedies available under the bill include injunctions, damages and corrective advertising. The courts also have the discretion to provide remedies under any law (either state, territory or Commonwealth) and most notably, the Trade Practices Act 1974 in relation to engaging in conduct that is misleading or deceptive.

The bill also includes appropriate measures to limit the possibility of the importation of goods which seek to ambush the Games marketing. The Australian Customs Service will be able to carry out the measures of this legislation relating to the monitoring of imported goods at Australia’s borders.

The bill will have a limited period of application and will cease to have effect from 1 July 2006.

So you can see, Mr Deputy Speaker, that everything is roped—all bases are covered. Any unauthorised user of Commonwealth Games indicia or images will most certainly be identified and pursued under the full force of this legislation. There are no loopholes in this comprehensive, detailed legislation, based of course on the Sydney Olympics experience.

Mr Gavan O’Connor —We believe you—sit down.

Mr McGAURAN —I will draw my remarks to a close—

Mr Gavan O’Connor —That is what you said 10 minutes ago.

Mr McGAURAN —and present the explanatory memorandum.

The DEPUTY SPEAKER (Mr Jenkins)—May I take the unusual step of indicating that the chair hopes that the minister from the other place appreciates the careful enunciation and additional commentary made by the Minister for Citizenship and Multicultural Affairs on this occasion.

Mr Gavan O’Connor —I was going to move an extension of time but he just went one bridge too far.

Debate (on motion by Mr Gavan O’Connor) adjourned.