House debates

Monday, 24 June 2013


Intellectual Property Laws Amendment Bill 2013; Second Reading

7:00 pm

Photo of Dennis JensenDennis Jensen (Tangney, Liberal Party) Share this | Hansard source

The coalition does not support this bill, the Intellectual Property Laws Amendment Bill 2013, and I say so clearly and deliberately so that there is no misunderstanding. The community of IP lawyers and judicious practitioners take issue with the contents of this bill. I put it to the House that it is incumbent on the government to assuage the fears of the community, not for the community to assent to governmental whims. For how else is it to be viewed but as a whim if due process is not put in place? If the most rigorous checks and balances are not insisted upon, what is it but a whim?

If this bill were anything other than a whim, there would be no need to rush it through this ultimate week of this parliament—rushing and rush. Take for example the fact that the Productivity Commission report on the issue is 300 pages long, the explanatory memorandum is 100 pages long, and the bill itself is 60 pages; yet only one day was given to digest and discern this critically important information. This is completely unreasonable, and that is why I am calling for more time to be given to this debate. I beseech the reasonableness of the government to put this bill through the scrutiny that is customary and expected of all other pieces of legislation. This is especially relevant and important given the complex and technical nature of this bill. However, if one is to look at the sorry saga that has become this bill, rushing and haste is one consistent theme.

Again, a standard meeting running for three hours somehow becomes one. Just one day was given to consider the above, and with only two coalition members on the committee. The member for Pearce was unable to attend the final meeting when the opportunity for dissent was available due to a longstanding commitment. This is an egregious affront to decency and common sense. The member for Pearce had signalled her absence well in advance, and the said member is critical of this tale as she has taken it upon herself to independently seek out expert opinion and counsel, such as obtained from many learned and practised IP lawyers. Their concerns were real then and they are real now. Facts and problems do not change just because the leaves do.

The problem of unintended consequences attached to this bill are huge and frightening. Take for example just one aspect relating to the TRIPS protocol. Under the TRIPS protocol signatories to the protocol must be full WTO members, with all the attendant obligations, commitments and constraints. A TRIP, which is the framework under which generics can be issued in times of emergency, when amended, as in the case in this bill, is a noble thing. However, I have questions and concerns.

Is the government giving due weight to the geographic reality of Australia? Many of our neighbours in the region are in the process of getting WTO membership, but are not there yet—and that is the key. If this bill is passed and this amendment to an amendment becomes our standard then, much like a copy of a copy, we get poor results—not only poor results but potentially costly too. If under the TRIPS amended provision the Commonwealth were to provide generic drugs in the event of a pandemic in, say, East Timor—noting here that East Timor is not a WTO member—there is nothing to stop East Timor, or any other non-WTO member, from acting unscrupulously and selling on to generic and occasioning profit contrary to the humanitarian intent.

So what does it mean for Australia? Some may like to see it is a small or trifling matter. In fact, that is the very line the government has tried to use to ram home this flawed piece of legislation. I wish to remind all in this place that breaking an international treaty is no small matter. It is no trifling matter. The Commonwealth exposes itself to the full weight of sanction of the WTO. How reckless and irresponsible a measure to endanger the economic sustainability of the nation and the livelihoods of millions. To entrench the budgetary emergency borders on treason. Forgive my incredulity, but the Gillard government is actually rushing to this treason. For the multifarious moments of unintended consequences that may arise upon assent of this bill, I am calling for more cool and more consideration.

Significant, complex law cannot be debated in one hour. Indeed, it would seem to me that because the legislation is significant and complex the minister just wishes it would go away. The minister is doing the 'William Wish Wellington'. Well, Australia deserves a minister less candied and more candid. I urge all to pass through the six schedules of this bill—six schedules affecting four acts. Ministerial insouciance is insanity. Sanguine is not a safe policy.

Looking at the schedules it is clear the minister of the day would be one to challenge the large industrial invested interest stakeholders; a challenge that the Commonwealth would be unlikely to win. This may in time be strategically used and exploited by the larger industrial corporate actors.

Going back to first principles—and as to why I am calling for more time for this bill and hence opposing it—this bill ultimately fails to achieve what it sets out to do. The raison d'etre of this bill was to clarify and improve the existing amendments to the legislation. I am at a loss as to how clarification and improvements can occur when so much rushing has occurred, when so little time has been given to study the reports of the Productivity Commission and when so little consultation with relevant industry stakeholders, such as the Law Council, has taken place.

It should not be the expectation that the onus falls to a member to actively seek out reports. Parliament should have by right and reason all number of relevant experts as a facility at the disposal of a member. I find a one-hour Senate inquiry hardly sufficient to achieve the sole purpose of this bill—that is, the improvement of clarity. I find that having no provision for the member for Pearce to her duty and honour a longstanding and flagged commitment is a disgrace and an insult not only to the member for Pearce but a shameful slur on the character of this government.

I submit that the public record on this debate has been and is bastardised. Think of the two-person committee; think of losing the experience and enterprise of the member for Pearce. Think of the nonsense that is rushing this bill through at five minutes to midnight. Nonsense is what the Gillard government does best. The only 'sense' they know is the 'cents' that come out of my pocket and your pocket, and the Australian people's pockets. More and more, Labor is addicted to spending. That is the nonsense that we are all living under; a nonsense economic model that is fundamentally broken because you cannot spend money you do not have and will not ever have.

I hope the public see why it is nonsense to believe the government on this bill; and why it is nonsense to trust them that everything will work out as IP Australia say it will; and that the small matter of breaking international treaties does not matter. 'Trust in Labor'. That is just unbelievable.

Like soap on a toothbrush or reds in a wash of whites, they always sneak in and they always leave a bad taste. That is what in essence we are being asked to do with this bill. Instead of doing the hard yakka and developing a brand spanking new act that would deliver real solutions, this tired and troubled Labor government has handed down a dirty patchwork of an amendment to an amendment based on irrational exuberance. That is not good enough. It is time to give more time to this bill.

It is time to set the record straight regarding the dissenting report and the many voices of concern that pour across our community. It is time to give mature and responsible government a go for once. The expression goes: 'It is never too late for a change'. If it is too late for Labor, do not let it be too late for Australia. Let clear heads rule on this debate. More time and more consultation makes more sense.

This bill provides no indication as to the process of negotiation; saying simply, 'compensation for the patent holder will be negotiated'. How can such a cavalier attitude be enshrined in the law of the land? Surely our parliament can do better. Better is the better way forward. And there is an obvious and easy way forward: the coalition.

The coalition's approach is to, as a matter of first principles, benchmark our legislative proposals against leading international practice. This is because the coalition appreciates that, with scientific reference to an area like IP, it is complex, detailed and fluid. For those reasons a clear articulation of a procedural framework is necessary. Churchill once said that 'empires of the future are empires of the mind'. The attitude of this Labor government epitomised in this bill is one of 'no matter, never mind'.

I would like to acknowledge the significant work done on this by the member for Pearce. She has done the due diligence that the government, with all of its resources, could have done and indeed should have done. It is shameful that the government chose not to do so and instead is attempting to rush through this ill-conceived legislation. We can do better. Better is a bill that develops hope, reward and opportunity. Better is the coalition.


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