Commonwealth Games Arrangements Act 2011
An Act to establish the Gold Coast 2018 Commonwealth Games Corporation, to regulate the use of references and images associated with the XXI Commonwealth Games, and for related purposes
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Chapter 1
Preliminary
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1
Short title
This Act may be cited as the
Commonwealth Games Arrangements Act 2011
.
2
Commencement
This Act commences on 1 January 2012.
3
Purposes of Act
The purposes of this Act are to—
(a)
establish the Gold Coast 2018 Commonwealth Games Corporation to plan, organise and deliver the Commonwealth Games, in conjunction with the ACGA and the CGF; and
(b)
protect the integrity of images or expressions, and sponsorship arrangements, associated with the Commonwealth Games by—
(i)
prohibiting the unauthorised use of protected images and protected references; and
(ii)
prohibiting conduct falsely inferring a person’s association with the Commonwealth Games; and
(iii)
conferring rights of redress on entities associated with the Commonwealth Games who are affected by a person’s contravention of a prohibition mentioned in subparagraph (i) or (ii).
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Act binds all persons
This Act binds all persons, including the State and, to the extent the legislative power of the Parliament permits, the Commonwealth and the other States.
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Definitions
The dictionary in schedule 4 defines particular words used in this Act.
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Chapter 2
Gold Coast 2018 Commonwealth Games Corporation
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Part 1
Establishment and functions
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Establishment
(1)
The Gold Coast 2018 Commonwealth Games Corporation is established.
(2)
The corporation—
(a)
is a body corporate; and
(b)
has a seal; and
(c)
may sue and be sued in its corporate name.
(3)
The corporation does not represent the State.
7
Application of other Acts
(1)
The corporation is a public authority under the
Civil Liability Act 2003
.
(2)
The corporation is a statutory body under the
Financial Accountability Act 2009
.
(3)
The corporation is a statutory body under the
Statutory Bodies Financial Arrangements Act 1982
.
(4)
The
Statutory Bodies Financial Arrangements Act 1982
, part 2B explains how that Act affects the corporation’s powers.
(5)
The corporation is a relevant EEO agency under the
Public Service Act 2008
.
8
Functions
(1)
The functions of the corporation are as follows—
(a)
to undertake and facilitate the organisation, conduct, promotion and commercial and financial management of the Commonwealth Games;
(b)
to do all the things necessary for or in connection with a matter mentioned in paragraph (a).
(2)
The corporation’s functions also include any other function given to the corporation under this Act.
(3)
In this section—
Commonwealth Games includes events and programs associated with the Commonwealth Games.
9
Corporation’s powers
(1)
The corporation has all the powers of an individual, and may, for example—
(a)
enter into contracts; and
(b)
acquire, hold, deal with and dispose of property; and
(c)
appoint agents and attorneys; and
(d)
engage consultants; and
(e)
charge a fee for its services; and
(f)
do anything else necessary or convenient to be done in the performance of its functions.
(2)
Without limiting subsection (1), the corporation has the powers given to it under this Act or another Act.
(3)
However, the powers of the corporation do not include the following—
(a)
making a loan to a member, member’s spouse, relative of a member or relative of a member’s spouse;
(b)
giving a guarantee, or providing security, in connection with a loan made, or to be made, by another person to a member, member’s spouse, relative of a member or relative of a member’s spouse;
(c)
exempting, or indemnifying, a member from or against any liability for a breach of duty relating to the corporation.
(4)
Subsection (3)
(c) is subject to section 29.
10
Ministerial direction
(1)
The Minister may give the corporation a written direction about the performance of its functions or the exercise of its powers if the Minister is satisfied it is reasonably necessary to give the direction.
(2)
Without limiting subsection (1), the Minister may give the corporation a written direction—
(a)
to give the Minister a document or information held by or in the control of the corporation; or
(b)
to submit to the Minister a document for the Minister’s approval.
(3)
The corporation must ensure a direction given under this section is complied with.
(4)
The corporation—
(a)
must include in its annual report, prepared under the
Financial Accountability Act 2009
, section 63, details of any direction given by the Minister under subsection (1) during the financial year to which the report relates; and
(b)
may include in the report a comment about the effect on the corporation’s activities of complying with the direction.
11
Delegation
(1)
The corporation may delegate its functions to—
(a)
a member; or
(b)
an appropriately qualified officer or employee of the corporation.
(2)
In this section—
appropriately qualified includes having the qualifications, experience or standing appropriate to exercise the power.
Example of standing for an officer or employee of the corporation—
the classification level in the corporation of the officer or employee
function includes power.
Part 2
The board
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Division 1
Establishment, role and membership
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The board
The corporation has a board of members.
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Role of the board
(1)
The board is responsible for the way the corporation performs its functions and exercises its powers.
(2)
Without limiting subsection (1), it is the board’s role to ensure the corporation performs its functions in an appropriate, effective and efficient way.
14
Composition of board
(1)
The board consists of at least 8 members.
(2)
The Minister must consult with ACGA about the appointment of each member.
(3)
Each member must be appointed by the Governor in Council.
15
Duration of appointment
(1)
Subject to this division, a member holds office for the period stated in the member’s instrument of appointment.
(2)
The period of appointment can be a period ending no later than the dissolution day.
(3)
If otherwise qualified, a member who completes a period of office may be reappointed.
16
Terms and conditions of appointment
(1)
A member may be paid the remuneration and allowances decided by the Governor in Council.
(2)
A member holds office on the terms and conditions, not provided by this Act, that are decided by the Governor in Council.
17
Vacancy in office
(1)
The office of a member becomes vacant if the member—
(a)
completes a period of office; or
(b)
resigns office by signed notice given to the Minister; or
(c)
is removed from office by the Governor in Council under subsection (2); or
(d)
is convicted of an indictable offence; or
(e)
is a person who is an insolvent under administration under the Corporations Act, section 9; or
(f)
becomes employed by, or becomes a contractor of, the corporation.
(2)
The Governor in Council may at any time remove a member from office for any reason or none.
18
Ineligibility of member of Parliament or councillor
A member of the Commonwealth Parliament or a State Parliament or a councillor of a local government is not eligible for appointment as a member.
19
Chairperson
The chairperson is a member nominated by the Minister after consultation with ACGA.
20
Deputy chairperson
(1)
There is to be a deputy chairperson of the board.
(2)
If the president of ACGA is a member, the president is the deputy chairperson.
(3)
If the president stops being the president of ACGA—
(a)
the president ceases to be the deputy chairperson; and
(b)
the deputy chairperson is a member nominated by the Minister after consultation with ACGA.
Division 2
Proceedings
21
Time and place of meetings
(1)
The board may hold its meetings when and where it decides.
(2)
However, the board must meet at least twice each year.
(3)
The chairperson—
(a)
may at any time call a meeting of the board; and
(b)
must call a meeting if asked by at least 4 other members.
22
Quorum
A quorum for a meeting of the board is at least half of the members.
23
Presiding at meetings
(1)
The chairperson presides at all meetings of the board at which the chairperson is present.
(2)
If the chairperson is absent, the deputy chairperson presides.
(3)
If the chairperson and deputy chairperson are absent, a member chosen by the members present presides.
24
Conduct of meetings
(1)
Subject to this division, the board may conduct its proceedings, including its meetings, as it considers appropriate.
(2)
The board may conduct its proceedings by using any technology allowing reasonably contemporaneous and continuous communication between persons taking part in the proceedings.
(3)
A member who takes part in a meeting of the board under subsection (2) is taken to be present at the meeting.
(4)
A question at a meeting of the board is to be decided by a majority of the votes of the members present at the meeting.
(5)
If the votes are equal, the chairperson has a casting vote.
(6)
A resolution is a valid resolution of the board, even though it is not passed at a meeting of the board, if—
(a)
at least half the members give written agreement to the resolution; and
(b)
notice of the resolution is given in accordance with procedures approved by the board.
25
Minutes and other records
The board must keep—
(a)
minutes of its meetings; and
(b)
a record of any of its decisions and resolutions.
Division 3
Duties of members
26
Duty to act honestly and exercise care and diligence
(1)
A member must act honestly, and must exercise a reasonable degree of care and diligence, when performing the member’s functions and exercising the member’s powers.
(2)
A member or former member must not make improper use of information acquired because of the member’s position as a member—
(a)
to gain, directly or indirectly, an advantage for the member or for any other person; or
(b)
to cause detriment to the corporation.
(3)
A member must not make improper use of the member’s position as a member—
(a)
to gain, directly or indirectly, an advantage for the member or for any other person; or
(b)
to cause detriment to the corporation.
(4)
This section—
(a)
has effect in addition to, and not in derogation of, any law relating to the civil or criminal liability of a member of the governing body of a corporation; and
(b)
does not prevent the starting of a civil or criminal proceeding in respect of civil or criminal liability.
27
Corporation or Minister may bring proceedings
(1)
If a member contravenes section 26, the corporation or the Minister may recover from the member as a debt due to the corporation either or both of the following—
(a)
if the member or any other person made a profit as a result of the contravention—an amount equal to the profit;
(b)
if the corporation has suffered loss or damage as a result of the contravention—an amount equal to the loss or damage.
(2)
A proceeding mentioned in subsection (1) may be—
(a)
brought in the name of the corporation; and
(b)
started in a court of competent jurisdiction.
28
Duty of disclosure
(1)
If—
(a)
a member has a direct or indirect pecuniary or other interest in a matter being considered or about to be considered at a meeting of the board; and
(b)
the interest appears to raise a conflict with the proper performance of the member’s duties in relation to the consideration of the matter;
the member must, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of the board.
(2)
Particulars of any disclosure made under this section must be recorded by the board in a register of interests kept for the purpose.
(3)
After a member has disclosed the nature of an interest in any matter, the member must not—
(a)
be present during any deliberation of the board about the matter; or
(b)
take part in any decision of the board about the matter.
(4)
For the making of a decision by the board under subsection (3), a member who has a direct or indirect pecuniary or other interest in a matter to which the disclosure relates must not—
(a)
be present during any deliberation of the board for the purpose of making the decision; or
(b)
take part in the making of the decision by the board.
(5)
A contravention of this section does not invalidate any decision of the board.
(6)
However, if the board becomes aware a member contravened this section, the board must reconsider any decision made by the board in which the member took part in contravention of this section.
(7)
A member may have regard to, or may act in, the interests of the entity that nominated the member for section 14.
(8)
However, a member may not act in a way that is contrary to the interests of the corporation.
(9)
A reference to an interest or to a conflict of interest is a reference to a matter within its ordinary meaning under the general law, and, in relation to an interest, the definition in the
Acts Interpretation Act 1954
, schedule 1 does not apply.
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Division 4
Immunity from proceeding
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Protection from liability
(1)
A member does not incur civil liability for an act done, or omission made, honestly and without negligence under this Act.
(2)
If subsection (1) prevents a civil liability attaching to a member, the liability attaches instead to the corporation.
Division 5
Committees
30
Establishment
(1)
The board may establish committees to assist it in performing its functions.
(2)
The board may decide on the membership and functions of a committee established under subsection (1).
(3)
Unless the board decides otherwise, a committee established under subsection (1) may conduct its proceedings, including its meetings, as it considers appropriate.
Division 6
Staff of the corporation
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Subdivision 1
Chief executive officer
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Subdivision 2
Other staff members
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Division 7
Budget and funding agreement
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Part 3
Staff of the corporation
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Division 1
Chief executive officer
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31
Chief executive officer
The Governor in Council may appoint a chief executive officer for the corporation who is nominated by the Minister and approved by ACGA.
32
Restriction on appointment
A member of the board must not be appointed as chief executive officer.
33
Chief executive officer employed under this Act
The chief executive officer is employed under this Act and not under the
Public Service Act 2008
.
34
Duration of office
(1)
Subject to this subdivision, the chief executive officer holds office for the period stated in the officer’s instrument of appointment.
(2)
The period of office can be a period ending no later than the dissolution day.
35
Functions
The functions of the chief executive officer are to ensure—
(a)
the corporation is managed as required by the priorities of the board; and
(b)
the efficient and effective administration and operation of the corporation.
36
Terms and conditions of appointment
(1)
The chief executive officer is to be paid the remuneration and allowances decided by the Governor in Council.
(2)
The chief executive officer holds office on the terms and conditions, not provided by this Act, that are decided by the Governor in Council.
37
Vacancy in office
(1)
The office of the chief executive officer becomes vacant if the chief executive officer—
(a)
completes a term of office; or
(b)
resigns office by signed notice given to the Minister; or
(c)
is removed from office by the Governor in Council under subsection (2); or
(d)
is convicted of an indictable offence; or
(e)
is a person who is an insolvent under administration under the Corporations Act, section 9.
(2)
The Governor in Council may at any time remove the chief executive officer from office for any reason or none.
Division 2
Other staff members
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38
Employment
(1)
The corporation may employ other staff it considers appropriate to perform its functions.
(2)
The other staff are to be employed under this Act and not the
Public Service Act 2008
.
Part 4
Budget and funding agreement
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39
Minister to approve budget
(1)
The corporation must, for each financial year, develop, adopt and submit to the Minister a budget by the day the Minister directs.
(2)
A budget has no effect until approved by the Minister.
(3)
During a financial year, the corporation may develop, adopt and submit to the Minister amendments to its approved budget for the financial year.
(4)
An amendment has no effect until approved by the Minister.
(5)
The Minister’s approval under this section may only be given with the consent of the Minister administering the
Financial Accountability Act 2009
.
(6)
A budget, or amendment of a budget, that has not received the approval of the Minister under this section must not be made available to the public.
40
Corporation to enter into funding agreement
(1)
The corporation must, for each financial year, enter into an agreement (the funding agreement) with the department.
(2)
The funding agreement for a financial year must provide for the way funding for the financial year is to be expended.
41
Corporation to act in accordance with budget and funding agreement
The corporation must, for a financial year, act in accordance with—
(a)
the budget, and any amendment of the budget, for the financial year approved by the Minister under section 39
(2) or (4); and
(b)
the funding agreement for the financial year.
Part 5
Legal proceedings
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Application of pt 5
This part applies to a proceeding under this Act.
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43
Appointments and authority
The following must be presumed unless a party to the proceeding, by reasonable notice, requires proof of it—
(a)
the appointment of the chairperson;
(b)
the appointment of the deputy chairperson;
(c)
the authority of a person to do anything under this Act.
44
Signatures
A signature purporting to be the signature of the chairperson or the chief executive officer is evidence of the signature it purports to be.
45
Other evidentiary aids
(1)
In a proceeding, a certificate purporting to be that of the chief executive officer stating any of the following matters is evidence of the matter—
(a)
a stated document is an appointment or direction made or given under this Act;
(b)
a stated document is a document given to the corporation or chief executive officer;
(c)
a stated document is a copy of a document mentioned in paragraph (a) or (b).
(2)
A statement in a complaint for a breach of duty under this Act that the matter of the complaint came to the complainant’s knowledge on a stated day is evidence of when the matter came to the complainant’s knowledge.
Part 6
Winding-up of corporation
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Dissolution day
(1)
A regulation may prescribe a day, not later than 18 months after the end of the closing ceremony of the Commonwealth Games, as the dissolution day.
(2)
If, on the day that is 18 months after the end of the closing ceremony of the Commonwealth Games, no day has been prescribed under subsection (1), that day is the dissolution day.
47
Dealing with assets and liabilities on winding-up
(1)
On the dissolution day the State is the successor in law of the corporation.
(2)
Without limiting subsection (1)—
(a)
all assets vested in, or held by, the corporation vest in the State; and
(b)
all liabilities of the corporation become liabilities of the State; and
(c)
the State is substituted for the corporation as a party to—
(i)
any contract, lease or other instrument to which the corporation is a party; or
(ii)
any current legal proceeding to which the corporation is a party.
Chapter 3
Use of protected images and references
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Part 1
Preliminary
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Extraterritorial application of ch 3
(1)
This chapter applies both within and outside Queensland.
(2)
This chapter applies outside Queensland to the full extent of the extraterritorial legislative power of the Parliament.
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exp 31 December 2018 (see s 79)
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Meaning of prohibited purpose
(1)
For this chapter, the use of an image or expression is for a prohibited purpose if the use—
(a)
is for a commercial purpose; or
(b)
is for an advertising, marketing or promotional purpose, whether or not for commercial gain; or
(c)
would cause a reasonable person to believe that a particular person has a sponsorship arrangement with or relating to—
(i)
a Games-related entity; or
(ii)
the Commonwealth Games; or
(iii)
an event or program associated with the Commonwealth Games whether or not the event or program relates to sport.
(2)
However, the use of an image or expression is not for a prohibited purpose if—
(a)
the use is for the primary purpose of—
(i)
genuine reporting of news of, or associated with, the Commonwealth Games; or
(ii)
genuine criticism or review of, or associated with, the Commonwealth Games; or
(iii)
genuine research, study or education; or
(iv)
seeking or giving genuine professional advice; or
(v)
a judicial proceeding or a report of a judicial proceeding; and
(b)
the use is reasonable having regard to—
(i)
the primary purpose mentioned in paragraph (a); and
(ii)
the need to protect the rights of persons who are authorised to use the image or expression by an authority granted under section 56.
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s 12
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Meaning of deceptively similar
For this chapter, an image or expression is deceptively similar to a protected image or a protected reference if it so nearly resembles the protected image or protected reference that it is likely to deceive or cause confusion.
Note—
This Act refers to an image or expression that is substantially identical with, or deceptively similar to, a protected image or protected reference. The concepts of ‘substantially identical with’ (which is not defined in this Act) and ‘deceptively similar’ (which is defined in this section) are used for consistency with the
Trade Marks Act 1995 (Cwlth).
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exp 31 December 2018 (see s 79)
Part 2
Offences
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exp 31 December 2018 (see s 79)
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Use of protected image or reference for prohibited purpose
(1)
A person must not use any of the following for a prohibited purpose—
(a)
a protected image or protected reference;
(b)
an image that is substantially identical with, or deceptively similar to, a protected image;
(c)
an image or expression that is substantially identical with, or deceptively similar to, a protected reference.
Maximum penalty—100 penalty units.
(2)
Subsection (1) does not apply to—
(a)
the use of a protected image or protected reference that is authorised by an authority granted under section 56; or
(b)
the use of an image or expression by—
(i)
the corporation; or
(ii)
the ACGA; or
(iii)
the CGF.
Note—
See also sections 53, 54 and 55 for other exceptions.
s 51
ins 2013 No. 12
s 12
exp 31 December 2018 (see s 79)
52
Misleading conduct in relation to sponsorship arrangements
(1)
A person commits an offence if—
(a)
the person engages in conduct that would cause a reasonable person to believe a particular person has a sponsorship arrangement with or relating to—
(i)
a Games-related entity; or
(ii)
the Commonwealth Games; or
(iii)
an event or program associated with the Commonwealth Games whether or not the event or program relates to sport; and
(b)
the arrangement does not exist.
Maximum penalty—100 penalty units.
Note—
See, however, sections 53, 54 and 55.
(2)
A person commits an offence if—
(a)
the person engages in conduct that would cause a reasonable person to believe that goods or services have an affiliation with—
(i)
a Games-related entity; or
(ii)
the Commonwealth Games; or
(iii)
an event or program associated with the Commonwealth Games whether or not the event or program relates to sport; and
(b)
the affiliation does not exist.
Maximum penalty—100 penalty units.
Note—
See, however, sections 53, 54 and 55.
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ins 2013 No. 12
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Exception for use of generic Games reference
(1)
Sections 51 and 52 do not apply to the use of a generic Games reference, or a similar thing, by a person if—
(a)
the reference or thing, when used by the person—
(i)
does not refer to the Commonwealth Games; and
(ii)
does not refer to an event or program associated with the Commonwealth Games whether or not the event or program relates to sport; and
(b)
a reasonable person would not infer that the reference refers to, or is intended to refer to, a thing mentioned in paragraph (a)(i) or (ii).
(2)
In this section—
generic Games reference means—
(a)
a Games reference that is an expression mentioned in schedule 3, part 1, item 3, 9 or 12; or
(b)
a Games reference that is prescribed under a regulation as a generic Games reference; or
(c)
a Games reference that is an adaptation of an expression mentioned in paragraph (a) or (b).
similar thing, in relation to a generic Games reference, means an image or expression that is substantially identical with, or deceptively similar to, the generic Games reference.
s 53
ins 2013 No. 12
s 12
exp 31 December 2018 (see s 79)
54
Corporations legislation displacement provisions
Sections 51 and 52 are declared to be Corporations legislation displacement provisions for the purposes of the Corporations Act, section 5G generally.
s 54
ins 2013 No. 12
s 12
sub 2014 No. 60
s 92
exp 31 December 2018 (see s 79)
55
Exception for persons with right to prevent passing off
(1)
Sections 51 and 52 do not apply to the use of a protected image, a protected reference or a similar thing by a person (the existing user) if—
(a)
immediately before the commencement of this chapter, the existing user would have been entitled, through an action for passing off, to prevent another person from using the image, reference or thing to pass off goods, services or a business as goods, services or a business of the existing user; and
(b)
the use of the image, reference or thing is substantially consistent with the purpose for which it was used immediately before commencement.
(2)
In this section—
similar thing means—
(a)
an image that is substantially identical with, or deceptively similar to, a protected image; or
(b)
an image or expression that is substantially identical with, or deceptively similar to, a protected reference.
s 55
ins 2013 No. 12
s 12
exp 31 December 2018 (see s 79)
Part 3
Authority to use protected images or protected references
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s 12
exp 31 December 2018 (see s 79)
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Grant of authority
(1)
The corporation may grant a person an authority to use a Games image or Games reference for a prohibited purpose.
(2)
The ACGA may grant a person an authority to use an ACGA image or ACGA reference for a prohibited purpose.
(3)
The CGF may grant a person an authority to use a CGF image or CGF reference for a prohibited purpose.
(4)
The Minister may grant a person an authority to use a Games reference for a prohibited purpose that is not a commercial purpose.
(5)
Before granting an authority mentioned in subsection (4), the Minister must consult with the corporation, the ACGA and the CGF regarding the grant of the authority.
(6)
If the ACGA, the CGF or the Minister grants an authority under this section, the grantor of the authority must give written notice of the grant to the corporation.
(7)
An authority granted under this section—
(a)
must be in writing; and
(b)
must contain—
(i)
a description of the protected image or protected reference authorised by the authority to be used (the stated image or reference); and
(ii)
the name of the person authorised by the authority to use the stated image or reference (the stated person); and
(iii)
the purpose (the stated prohibited purpose) for which the authority authorises the stated person to use the stated image or reference; and
(iv)
the date the authority was granted; and
(v)
the duration of the authority; and
(c)
may include reasonable conditions the grantor of the authority considers appropriate having regard to the use of the protected image or the protected reference for which the authority is granted; and
(d)
authorises the stated person to use the stated image or reference for the stated prohibited purpose.
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Register of authorities
(1)
The corporation must—
(a)
keep a register of authorities granted under section 56; and
(b)
include in the register details of—
(i)
each authority granted by the corporation under section 56
(1); and
(ii)
each authority that the corporation has been given written notice of under section 56
(6).
(2)
The corporation must keep the register available for inspection—
(a)
by members of the public at the corporation’s office during the corporation’s normal office hours; and
(b)
on the corporation’s website.
Editor’s note—
The corporation’s website is <www.goldoc.com>.
pt 3 (ss 56–57) ins 2013 No. 12
s 12
exp 31 December 2018 (see s 79)
Part 4
Injunctions and orders
pt 4 (ss 58–64) ins 2013 No. 12
s 12
exp 31 December 2018 (see s 79)
58
Definitions for pt 4
In this part—
aggrieved party, for conduct mentioned in section 62
(1) or 63
(1), means—
(a)
generally—
(i)
for conduct relating to a Games image or Games reference—the corporation; or
(ii)
for conduct relating to an ACGA image or ACGA reference—the ACGA; or
(iii)
for conduct relating to a CGF image or CGF reference—the CGF; and
(b)
if the conduct relates to a protected image or protected reference and a person has a current authority granted under section 56 to use the image or reference—includes that person.
authorised applicant, for conduct mentioned in section 60
(1) or 61
(1)—
(a)
means generally—
(i)
for conduct relating to a Games image or Games reference—the corporation; or
(ii)
for conduct relating to an ACGA image or ACGA reference—the ACGA; or
(iii)
for conduct relating to a CGF image or CGF reference—the CGF; and
(b)
if, in relation to the conduct, the offending party has been charged with an offence against section 51 or 52, or an offence of counselling or procuring the commission of, or attempting or conspiring to commit, an offence against section 51 or 52—includes a prosecutor prosecuting the offence; and
(c)
if the conduct relates to a protected image or protected reference and a person has a current authority granted under section 56 to use the image or reference—includes that person.
offending party means—
(a)
for conduct mentioned in section 60
(1)—the offending party mentioned in that subsection; or
(b)
for conduct mentioned in section 61
(1)—the offending party mentioned in that subsection.
pt 4 (ss 58–64) ins 2013 No. 12
s 12
exp 31 December 2018 (see s 79)
59
Court’s other powers not affected
The powers conferred on a court by this part are in addition to, and do not limit, any other powers of the court under the
Penalties and Sentences Act 1992
or any other law.
pt 4 (ss 58–64) ins 2013 No. 12
s 12
exp 31 December 2018 (see s 79)
60
Injunctions
(1)
This section applies if an authorised applicant reasonably believes a person (an offending party) has engaged, is engaging or is proposing to engage in conduct that constituted, constitutes or would constitute—
(a)
an offence against section 51 or 52; or
(b)
an offence of counselling or procuring the commission of, or attempting or conspiring to commit, an offence mentioned in paragraph (a).
(2)
The authorised applicant may apply to the court for an injunction restraining the offending party from engaging in the conduct or continuing to engage in the conduct.
(3)
The court may grant an interim injunction, restraining the offending party from engaging in the conduct or continuing to engage in the conduct, pending a decision about the application.
(4)
After considering the application, the court may—
(a)
if the court is satisfied, on the balance of probabilities, that the offending party has engaged, or is likely to engage or continue to engage, in the conduct—grant the injunction; or
(b)
refuse to grant the injunction.
(5)
If the court is satisfied there is adequate reason for doing so, the court may grant an injunction under subsection (3) or (4) without notice to the offending party.
(6)
The court may grant the injunction—
(a)
if the court is satisfied the offending party has engaged in the conduct mentioned in subsection (1)—whether or not it appears to the court that the offending party intends to engage again or continue to engage in the conduct; or
(b)
if it appears to the court that, if the injunction is not granted, it is likely that the offending party will engage or continue to engage in the conduct mentioned in subsection (1)—
(i)
whether or not the offending party has previously engaged in the conduct; and
(ii)
whether or not there is an imminent danger of substantial damage to a person if the offending party engages in the conduct.
(7)
In this section—
court means the Supreme Court of Queensland.
pt 4 (ss 58–64) ins 2013 No. 12
s 12
exp 31 December 2018 (see s 79)
61
Disclosure of information and corrective advertising
(1)
This section applies if a court is reasonably satisfied that a person (an offending party) has engaged in conduct that—
(a)
contravenes section 51 or 52; or
(b)
constitutes counselling or procuring the contravention of, or attempting or conspiring to contravene, section 51 or 52.
(2)
The court may, on the application of an authorised applicant, make either or both of the following orders—
(a)
an order requiring the offending party to disclose information relating to the conduct that is in the party’s possession, or to which the party has access—
(i)
to the public or a person stated in the order; and
(ii)
in the way stated in the order;
(b)
an order requiring the offending party to publish an advertisement—
(i)
in terms stated in the order; and
(ii)
in the way, and at the times, stated in the order; and
(iii)
at the expense of the offending party.
(3)
In this section—
court means—
(a)
if the order is sought in conjunction with, and in the course of, another proceeding under this chapter, whether for an offence or otherwise—the court hearing the other proceeding; or
(b)
if paragraph (a) does not apply—a Magistrates Court, regardless of any civil jurisdictional limit, including any monetary limit, applying to a Magistrates Court.
pt 4 (ss 58–64) ins 2013 No. 12
s 12
exp 31 December 2018 (see s 79)
62
Damages
(1)
This section applies if an aggrieved party suffers loss or damage because of the conduct of another person (the offending party) that—
(a)
contravenes section 51 or 52; or
(b)
constitutes counselling or procuring the contravention of, or attempting or conspiring to contravene, section 51 or 52.
(2)
The aggrieved party may, by claim, start a proceeding in a court of competent jurisdiction against the offending party to recover the amount of the loss or damage.
(3)
If the court is reasonably satisfied of the matters mentioned in subsection (1), the court may grant the relief mentioned in subsection (2).
(4)
An action under this section must not be brought after the earlier of the following—
(a)
the expiration of 6 years from the date on which the cause of action arose;
(b)
the dissolution day.
pt 4 (ss 58–64) ins 2013 No. 12
s 12
exp 31 December 2018 (see s 79)
63
Account of profits
(1)
This section applies if the conduct of a person (the offending party)—
(a)
contravenes section 51 or 52; or
(b)
constitutes counselling or procuring the contravention of, or attempting or conspiring to contravene, section 51 or 52.
(2)
An aggrieved party may, by claim, start a proceeding in a court of competent jurisdiction against the offending party for relief by way of an account of profits.
(3)
If the court is reasonably satisfied of the matter mentioned in subsection (1)
(a) or (b), the court may grant the relief mentioned in subsection (2).
(4)
An action under this section must not be brought after the earlier of the following—
(a)
the expiration of 6 years from the date on which the cause of action arose;
(b)
the dissolution day.
pt 4 (ss 58–64) ins 2013 No. 12
s 12
exp 31 December 2018 (see s 79)
64
Court may make more than one order
(1)
Subject to subsection (2), a court may in a proceeding—
(a)
grant an injunction and 1 or more orders under this part; or
(b)
make more than 1 order under this part.
(2)
An aggrieved party is not entitled to, and a court must not order, damages under section 62 and an account of profits under 63 in relation to the same conduct.
pt 4 (ss 58–64) ins 2013 No. 12
s 12
exp 31 December 2018 (see s 79)
Part 5
Seizure and surrender
pt 5 (ss 65–76) ins 2013 No. 12
s 12
exp 31 December 2018 (see s 79)
65
Definitions for pt 5
In this part—
appropriate body, for a seized item, means—
(a)
if the relevant contravention relates to a games image or games reference—the corporation; or
(b)
if the relevant contravention relates to an ACGA image or ACGA reference—the ACGA; or
(c)
if the relevant contravention relates to a CGF image or CGF reference—the CGF.
marked with, in relation to goods—
1
Goods are marked with an image or expression if the image or expression is marked on 1 or more of the following, whether in physical or electronic form—
(a)
the goods;
(b)
any covering or container in which the goods are wholly or partly enclosed;
(c)
anything placed in or attached to a covering or container mentioned in paragraph (1)(b);
(d)
anything attached to the goods or around which the goods are wrapped or wound.
2
In paragraph 1, a reference to marked in relation to a thing mentioned in paragraph 1(a) to (d) includes a reference to attached to, or incorporated into or with the thing.
owner, of a seized item, includes a person who would be entitled to possession of the item had it not been seized.
relevant contravention, for a seized item, means the contravention of section 51 or 52 on the basis of which the item was seized under section 66.
seized item means goods, advertising material or a device seized under section 66.
pt 5 (ss 65–76) ins 2013 No. 12
s 12
exp 31 December 2018 (see s 79)
66
Seizure of goods, advertising material or device during seizure period
(1)
This section applies if—
(a)
during the seizure period, a police officer finds goods, advertising material or a device in, or in the immediate vicinity of, a relevant place; and
(b)
the goods are marked with, or the material or device contains—
(i)
a protected image or protected reference; or
(ii)
an image or expression that is substantially identical with, or deceptively similar to, a protected reference; or
(iii)
an image that is substantially identical with, or deceptively similar to, a protected image; and
(c)
the police officer reasonably believes that the image or expression mentioned in paragraph (b) is being used, or is intended to be used, in contravention of section 51 or 52.
(2)
The police officer may seize the goods, material or device.
(3)
A regulation may prescribe any of the following as a relevant place for this section—
(a)
a venue, or other place, associated with—
(i)
the Commonwealth Games, whether or not the venue or place is used for sport; or
(ii)
an event or program associated with the Commonwealth Games, whether or not the event or program relates to sport;
(b)
a public place that may be used by members of the public for travelling to or from the Commonwealth Games, including a place in Brisbane or another area outside the Gold Coast area that may be used by members of the public for travelling to or from the Gold Coast;
(c)
a public place at which the Commonwealth Games are shown or are expected to be shown on a screen, whether live or otherwise, for viewing by members of the public;
(d)
a public place at which members of the media are or are expected to be present for reporting news of, or associated with, the Commonwealth Games;
(e)
a public place at which members of the public are congregated, or are expected to congregate, for a purpose associated with the Commonwealth Games.
Example—
a public place at which 1 or more persons selected to compete in the Commonwealth Games are making a public appearance
(4)
A regulation—
(a)
may prescribe a public place as a relevant place under subsection (3)
(b), (c), (d) or (e) only for the part of the seizure period during which the place is or is expected to be of a kind mentioned in the paragraph; and
(b)
must state the part of the seizure period for which the public place is a relevant place for this section.
(5)
In this section—
public place means a place—
(a)
that the public is entitled to use, is open to members of the public or is used by the public, whether or not on payment of money; or
Examples of a place that may be a public place under paragraph (a)—
a bus or train station, a park, a road
(b)
the occupier of which allows, whether or not on payment of money, members of the public to enter.
Examples of a place that may be a public place under paragraph (b)—
a shopping mall, a showground
seizure period means the period commencing on 1 January 2018 and ending on 30 April 2018.
pt 5 (ss 65–76) ins 2013 No. 12
s 12
exp 31 December 2018 (see s 79)
67
Receipt for seized item
(1)
If a police officer seizes goods, advertising material or a device under section 66, the officer must, as soon as reasonably practicable after seizing the goods, material or device—
(a)
if the person from whom the goods, material or device was seized is present—give, or cause to be given, to the person a receipt for the seized item; or
(b)
if for any reason it is not practicable to comply with paragraph (a)—leave the receipt at the place of seizure in a conspicuous position and in a reasonably secure way.
(2)
A receipt under subsection (1)—
(a)
may be for all items seized from the person or the place; and
(b)
must generally describe the seized item and its condition.
(3)
This section does not apply if the police officer reasonably believes—
(a)
there is no-one apparently in possession of the seized item or the seized item has been abandoned; or
(b)
because of the condition, nature and value of the seized item it would be unreasonable to require the officer to comply with this section.
pt 5 (ss 65–76) ins 2013 No. 12
s 12
exp 31 December 2018 (see s 79)
68
Seized item must be given to the OCGC
(1)
If a police officer seizes goods, advertising material or a device under section 66, the officer must give the seized item to the OCGC as soon as practicable after the seizure.
(2)
The OCGC must keep the seized item until it is—
(a)
returned to its owner under section 69; or
(b)
forfeited to the State under this part.
pt 5 (ss 65–76) ins 2013 No. 12
s 12
exp 31 December 2018 (see s 79)
69
Return of seized item and compensation
(1)
Subsection (2) applies if a seized item has some intrinsic value and is not forfeited to the State under this part.
(2)
The OCGC must return the seized item to its owner—
(a)
generally—within 6 months after the seizure; or
(b)
if a proceeding involving the item is started under this Act within the 6 months—at the end of the proceeding and any appeal from the proceeding.
(3)
If a seized item has been destroyed, the appropriate body for the item must pay, to the item’s owner, compensation—
(a)
equal to the market value of the item at the time of the seizure; and
(b)
any other loss or damage incurred by the owner as a result of the seizure.
(4)
Nothing in this section affects a lien or other security over the seized item.
(5)
In this section—
destroyed, for a seized item, includes damaged to the extent that the item is no longer fit for its intended use.
pt 5 (ss 65–76) ins 2013 No. 12
s 12
exp 31 December 2018 (see s 79)
70
Forfeiture of seized item to the State by chief executive’s decision
(1)
This section applies if a seized item is required to be returned to its owner under section 69.
(2)
The chief executive may decide the seized item is forfeited to the State if the OCGC—
(a)
after making reasonable inquiries, can not find its owner; or
(b)
after making reasonable efforts, can not return it to its owner.
(3)
However, the OCGC is not required to—
(a)
make inquiries if it would be unreasonable to make inquiries to find the seized item’s owner; or
(b)
make efforts if it would be unreasonable to make efforts to return the seized item to its owner.
Example for paragraph (b)—
the owner of the seized item has migrated to another country
(4)
Regard must be had to the seized item’s condition, nature and value in deciding—
(a)
whether it is reasonable to make inquiries or efforts; and
(b)
if inquiries or efforts are made—what inquiries or efforts, including the period over which they are made, are reasonable.
pt 5 (ss 65–76) ins 2013 No. 12
s 12
exp 31 December 2018 (see s 79)
71
Voluntary forfeiture of seized item to the State
(1)
The owner of a seized item may, at any time, forfeit the item to the State by written notice to the OCGC.
(2)
On receipt by the OCGC of the written notice, the seized item is forfeited to the State.
pt 5 (ss 65–76) ins 2013 No. 12
s 12
exp 31 December 2018 (see s 79)
72
Court may order forfeiture of seized item to the State
(1)
This section applies if a court—
(a)
convicts a person of an offence against section 51 or 52; or
(b)
grants an injunction, or makes an order under part 4 against a person in relation to a contravention of section 51 or 52.
(2)
When imposing a sentence on the person for the offence, or granting the injunction or making the order, the court may also order a seized item to be forfeited to the State if—
(a)
the person is the owner of the item; and
(b)
the item was the subject of the contravention of section 51 or 52.
(3)
The court may also make any order that it considers appropriate to enforce the forfeiture.
pt 5 (ss 65–76) ins 2013 No. 12
s 12
exp 31 December 2018 (see s 79)
73
Notification of forfeiture
(1)
This section applies if a seized item is forfeited to the State under this part.
(2)
The OCGC must notify the corporation, the ACGA and the CGF in writing of the forfeiture.
pt 5 (ss 65–76) ins 2013 No. 12
s 12
exp 31 December 2018 (see s 79)
74
When seized item becomes property of the State
A seized item becomes the property of the State if the item is forfeited to the State under this part.
pt 5 (ss 65–76) ins 2013 No. 12
s 12
exp 31 December 2018 (see s 79)
75
How property may be dealt with
(1)
This section applies if, under section 74, a seized item becomes the property of the State.
(2)
The chief executive may deal with the seized item as the chief executive considers appropriate, including, for example, by destroying it or giving it away.
(3)
The chief executive must not deal with the seized item in a way that could prejudice the outcome of an appeal against the forfeiture under this part.
(4)
If the seized item is to be disposed of by sale, the chief executive must consult with the appropriate body for the item before the sale.
pt 5 (ss 65–76) ins 2013 No. 12
s 12
exp 31 December 2018 (see s 79)
76
Surrender of goods, advertising material or device
(1)
This section applies if the corporation notifies a person that the corporation reasonably believes—
(a)
the person owns or possesses goods that are marked with, or advertising material or a device that contains—
(i)
a protected image or protected reference; or
(ii)
an image or expression that is substantially identical with, or deceptively similar to, a protected reference; or
(iii)
an image that is substantially identical with, or deceptively similar to, a protected image; and
(b)
the image or expression mentioned in paragraph (a) is being used, or is intended to be used, in contravention of section 51 or 52.
(2)
The person may surrender the goods, advertising material or device to the corporation.
(3)
If the goods, advertising material or device (the surrendered item) is surrendered under this section—
(a)
sections 68 to 75 apply, with necessary changes, to the surrendered item as if it were a seized item; and
(b)
the corporation must, as soon as reasonably practicable after the surrender, give, or cause to be given, to the person a receipt for the surrendered item.
(4)
The notice under subsection (1) must—
(a)
be in writing; and
(b)
explain, in plain English, the effect that sections 68 to 75 will have, under subsection (3), in relation to the goods, material or device.
(5)
A receipt under subsection (3)
(b)—
(a)
may be for all items surrendered by the person; and
(b)
must generally describe the surrendered item and its condition.
(6)
The corporation must not accept a surrender of goods, advertising material or a device, other than in response to a notice under subsection (1).
pt 5 (ss 65–76) ins 2013 No. 12
s 12
exp 31 December 2018 (see s 79)
Part 6
Other provisions
pt 6 (ss 77–79) ins 2013 No. 12
s 12
exp 31 December 2018 (see s 79)
77
Civil rights and remedies not affected
This chapter does not affect or limit a civil right or remedy that exists apart from this chapter, whether at common law or otherwise.
pt 6 (ss 77–79) ins 2013 No. 12
s 12
exp 31 December 2018 (see s 79)
78
Actions for passing off against particular entities
(1)
This section applies to a proceeding for passing off brought by an existing user mentioned in section 55 against a relevant entity arising from the use of a protected image or protected reference by the entity.
(2)
It is a defence to the proceeding if the relevant entity satisfies the court that, when the protected image or protected reference was used by the entity, the entity was not aware the existing user was entitled to prevent the use of the image or reference through an action for passing off.
(3)
In this section—
relevant entity means—
(a)
the corporation; or
(b)
the ACGA; or
(c)
the CGF; or
(d)
a person authorised to use a protected image or reference by an authority granted under section 56.
pt 6 (ss 77–79) ins 2013 No. 12
s 12
exp 31 December 2018 (see s 79)
79
Expiry of ch 3
This chapter expires on 31 December 2018.
pt 6 (ss 77–79) ins 2013 No. 12
s 12
exp 31 December 2018 (see s 79)
Chapter 4
Miscellaneous
ch hdg ins 2013 No. 12
s 13
ch 4 pt 6 hdg om 2013 No. 12
s 13
80
Regulation-making power
The Governor in Council may make regulations under this Act.
s 80
(prev s 48) renum 2013 No. 12
s 14
Schedule 1
Expressions that are ACGA references
schedule 4, definition ACGA reference
, paragraph (a)
1
ACGA
2
Australian Commonwealth Games Association
sch 1 ins 2013 No. 12 s 16
Schedule 2
Expressions that are CGF references
schedule 4, definition CGF reference
, paragraph (a)
1
CGF
2
Commonwealth Games Federation
sch 2 ins 2013 No. 12 s 16
Schedule 3
Games references
schedule 4, definition games reference
, paragraphs (a) and (b)
Part 1
Individual expressions that are Games references
1
Australian Commonwealth Games
2
Coast 2018 Games
3
Coast Games
4
Comm Games
5
Commonwealth Games
6
GC18
7
GC2018
8
Gold Coast 2018 Commonwealth Games
9
Gold Coast 2018 Cultural Program
10
Gold Coast 2018 Games
11
Gold Coast Commonwealth Games
12
Gold Coast Games
13
GOLDOC
14
Queen’s Baton Relay
Part 2
Combinations of expressions that are Games references
Column 1
Column 2
1
2018
21st
Commonwealth Games
Games
2
Commonwealth Games
Commonwealth Games athlete
gold
silver
bronze
3
Australian Commonwealth Games Team
Gold Coast
Gold Coast 2018
GC2018
4
Games
Commonwealth Games
Australian Commonwealth Games Team
partner
sponsor
provider
supplier
sch 3 ins 2013 No. 12 s 16
Schedule 4
Dictionary
section 5
ACGA means Australian Commonwealth Games Association Inc. A01596.
ACGA image means—
(a)
an image prescribed under a regulation as an ACGA image; or
(b)
an adaptation of an image mentioned in paragraph (a).
def ACGA image ins 2013 No. 12 s 15(2)
ACGA reference means—
(a)
an expression mentioned in schedule 1; or
(b)
an expression prescribed under a regulation as an ACGA reference; or
(c)
an adaptation of an expression mentioned in paragraph (a) or (b).
def ACGA reference ins 2013 No. 12 s 15(2)
adaptation means—
(a)
for an ACGA image, CGF image or Games image—
(i)
if the image is in a two-dimensional form—a version of the image produced in a three-dimensional form; or
(ii)
if the image is in a three-dimensional form—a version of the image produced in a two-dimensional form; or
(b)
for an ACGA reference, CGF reference or Games reference—
(i)
a version of the reference in which all or part of the reference is presented in a language other than English; or
(ii)
a version of the reference in which all or part of the reference forms part of a pictorial representation; or
(iii)
a version of the reference in which all or part of the reference is changed from upper to lower case or lower to upper case; or
(iv)
a version of the reference in which any numbers forming part of the reference are presented in words or Arabic, Roman or other numerals; or
(v)
a version of the reference expressed in auditory form.
def adaptation ins 2013 No. 12 s 15(2)
aggrieved party, for chapter 3, part 4, see section 58.
def aggrieved party ins 2013 No. 12 s 15(2)
appropriate body, for chapter 3, part 5, see section 65.
def appropriate body ins 2013 No. 12 s 15(2)
Australian Commonwealth Games Team means the persons who are—
(a)
selected by the ACGA to represent Australia, as athletes or officials, in the Commonwealth Games; and
(b)
accredited by the CGF as participants in the Commonwealth Games.
def Australian Commonwealth Games Team ins 2013 No. 12 s 15(2)
authorised applicant, for chapter 3, part 4, see section 58.
def authorised applicant ins 2013 No. 12 s 15(2)
board means the board of the corporation.
CGF means the Commonwealth Games Federation.
def CGF ins 2013 No. 12 s 15(2)
CGF image means—
(a)
an image prescribed under a regulation as an CGF image; or
(b)
an adaptation of an image mentioned in paragraph (a).
def CGF image ins 2013 No. 12 s 15(2)
CGF reference means—
(a)
an expression mentioned in schedule 2; or
(b)
an expression prescribed under a regulation as an CGF reference; or
(c)
an adaptation of an expression mentioned in paragraph (a) or (b).
def CGF reference ins 2013 No. 12 s 15(2)
chief executive officer means the chief executive officer of the corporation.
closing ceremony means the last day of the official sports program for the Commonwealth Games.
commercial purpose means a purpose in relation to which the generation of profit is more than an incidental outcome.
def commercial purpose ins 2013 No. 12 s 15(2)
Commonwealth Games means the XXI Commonwealth Games to be held at the Gold Coast in 2018.
compete means compete as an individual or as a member of a team.
def compete ins 2013 No. 12 s 15(2)
corporation means Gold Coast 2018 Commonwealth Games Corporation.
deceptively similar see section 50.
def deceptively similar ins 2013 No. 12 s 15(2)
dissolution day means the dissolution day under section 46.
expression includes a phrase, reference or word.
def expression ins 2013 No. 12 s 15(2)
funding agreement see section 40.
Games image means—
(a)
an image prescribed under a regulation as a Games image; or
(b)
an adaptation of an image mentioned in paragraph (a).
def Games image ins 2013 No. 12 s 15(2)
Games reference means—
(a)
an expression mentioned in schedule 3, part 1; or
(b)
an expression that combines an expression mentioned in column 1 of an item in schedule 3, part 2, and an expression mentioned in column 2 of that item, whether or not the combined expression includes any other words; or
(c)
an expression prescribed under a regulation as a Games reference; or
(d)
an adaptation of an expression or phrase mentioned in paragraph (a), (b) or (c).
def Games reference ins 2013 No. 12 s 15(2)
Games-related entity means—
(a)
the corporation; or
(b)
the ACGA; or
(c)
the CGF; or
(d)
a person who competes, or has been selected to compete, in the Commonwealth Games; or
(e)
the Australian Commonwealth Games Team.
def Games-related entity ins 2013 No. 12 s 15(2)
marked with, for part 5, see section 65.
def marked with ins 2013 No. 12 s 15(2)
member means a member of the board appointed under section 14
(3).
OCGC means the Office of Commonwealth Games Coordination.
def OCGC ins 2013 No. 12 s 15(2)
offending party, for chapter 3, part 4, see section 58.
def offending party ins 2013 No. 12 s 15(2)
owner, for chapter 3, part 5, see section 65.
def owner ins 2013 No. 12 s 15(2)
prohibited purpose see section 49.
def prohibited purpose ins 2013 No. 12 s 15(2)
protected image means an ACGA image, CGF image or Games image.
def protected image ins 2013 No. 12 s 15(2)
protected reference means an ACGA reference, CGF reference or Games reference.
def protected reference ins 2013 No. 12 s 15(2)
reasonably believes means believes on reasonable grounds.
def reasonably believes ins 2013 No. 12 s 15(2)
reasonably satisfied means satisfied on reasonable grounds.
def reasonably satisfied ins 2013 No. 12 s 15(2)
relevant contravention, for chapter 3, part 5, see section 65.
def relevant contravention ins 2013 No. 12 s 15(2)
seized item, for chapter 3, part 5, see section 65.
def seized item ins 2013 No. 12 s 15(2)
sch 4 (prev sch) num 2013 No. 12 s 15(1)