Document ID: chunk:federal_register_of_legislation:C2004C01235:clause:1_135an:p1
Version: federal_register_of_legislation:C2004C01235
Segment Type: clause
Provision Reference: sch 1 cl 135AN (pt 1/2)
Character Range: 60213–62870

135AN  Actions in relation to the manufacture of and dealing with broadcast decoding devices

 (1) Subject to subsection (2), this section applies if:
 (a) a broadcaster makes an encoded broadcast; and
 (b) a person does any of the following acts without the permission of the broadcaster:
 (i) makes a broadcast decoding device;
 (ii) sells, lets for hire, or by way of trade offers or exposes for sale or hire, a broadcast decoding device;
 (iii) distributes a broadcast decoding device for the purpose of trade, or for any other purpose that will affect prejudicially the broadcaster;
 (iv) exhibits a broadcast decoding device in public by way of trade;
 (v) imports a broadcast decoding device into Australia for the purpose of:
 (A) selling, letting for hire, or by way of trade offering or exposing for sale or hire, the device; or
 (B) distributing the device for the purpose of trade, or for any other purpose that will affect prejudicially the broadcaster; or
 (C) exhibiting the device in public by way of trade;
 (vi) makes a broadcast decoding device available online to an extent that will affect prejudicially the broadcaster; and
 (c) the person knew, or ought reasonably to have known, that the device would be used to enable a person to gain access to an encoded broadcast without the authorisation of the broadcaster.

 (2) This section does not apply in relation to anything lawfully done for the purposes of law enforcement or national security by or on behalf of:
 (a) the Commonwealth or a State or Territory; or
 (b) an authority of the Commonwealth or of a State or Territory.

 (3) Subject to subsection (8), if this section applies, the broadcaster may bring an action against the person.

 (4) The relief that a court may grant in an action under this section includes an injunction (subject to such terms, if any, as the court thinks fit) and either damages or an account of profits.

 (5) If, in an action under this section, the court is satisfied that it is proper to do so, having regard to:
 (a) the flagrancy with which the defendant did any of the acts described in paragraph (1)(b); and
 (b) any benefit shown to have accrued to the defendant as a result of making or dealing with the relevant broadcast decoding device; and
 (c) all other relevant matters;
the court may, in assessing damages, award such additional damages as it considers appropriate in the circumstances.

 (6) If, in an action under this section, the court is satisfied that it is proper to do so, having regard to all relevant matters, the court may, by order, direct that the relevant broadcast decoding device be destroyed or otherwise dealt with