UNTERHALTER AJ
by recourse to the Marrakesh Treaty. Should Parliament in due course wish to amend
section 19D in whatever legislation finally emerges from the wider parliamentary
endeavour to amend the Copyright Act, the order of this Court would not prevent
Parliament from doing so.
[101] Professor Dean points out some of the hazards that attach to the reading-in of
section 19D. First, section 19D is not uncontroversial, and this Court should exercise
care, in effect, to legislate in such circumstances. More especially when the provision
to be read-in is not a narrow alteration of a statutory regime. Second, section 19D is
incomplete and does not define terms of importance; these include “works”, “accessible
format copy”, “person with disability” and a person who “serves persons with
disabilities”. According to Professor Dean, borrowing from the Marrakesh Treaty will
not cure the problem because it leads to legislative incoherence. Third, section 19D
requires the Minister to prescribe by regulation who is a person that serves persons with
disabilities. Therefore, section 19D requires subordinate legislation, and hence its
adoption, without more, cannot take place. Finally, section 19D is at odds with the
Marrakesh Treaty.
[102] The starting point is this: persons with print and visual disabilities should not
have to wait further to secure a remedy. The parliamentary process has already taken
too long. The need to address the infringement of rights is pressing. There must be a
remedy granted that provides immediate redress. Section 237 of the Constitution places
a duty on organs of state that “constitutional obligations must be performed diligently
and without delay”. However, Parliament must be afforded an opportunity to cure the
constitutional defect we have found to exist. This is so because the remedy that is
required fits into a larger legislative design as to how to domesticate the
Marrakesh Treaty and harmonise the exceptions that are required with the project under
consideration to revise the Copyright Act. This is a matter properly left to Parliament.
A reading-in by this Court should not deter Parliament from its ultimate task to cure the
constitutional defect we have found and integrate a remedy into the wider reformation
of the Copyright Act. The declaration of invalidity should thus be suspended for a
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