Monday, 24 June 2013
Intellectual Property Laws Amendment Bill 2013; Second Reading
In a number of respects I am disappointed that it is necessary to rise to speak on the Intellectual Property Laws Amendment Bill 2013. It should have been quite clear by now to the people in the Labor Party who are responsible for this bill that it is simply not ready for introduction into the parliament. I am sure this is of no concern to some on the other side of the House who seem to cling to the view that the success of this parliament is marked and should be judged exclusively by how many pieces of legislation have been introduced during its life. To put it mildly, this bill represents another example among many of poorly conceived legislation and poor drafting from the government. When I watch yet another attempt being made to ram a bill through the House in disregard of various third party criticisms of its content, I find it hard to believe that this can really be the final sitting fortnight of two terms of a Labor government. You would think after nearly six years of practice it surely should have learned some lessons about sensible legislative process by now. Obviously it has not.
Sadly, what makes all of this worse is that the basic intent of the bill is fine. Obviously the coalition is not philosophically opposed at all to sensibly amending the Patents Act to increase the efficiency and effectiveness of Australia's intellectual property system, as stated as the intent of the legislation in the explanatory memorandum, but there is nothing wrong in principle with pursuing changes that, for example, create better arrangements under which Australians can export pharmaceuticals to developing countries in order to help them address public health problems. So it should not have been a hard task to bring the parliament together in support of a well-drafted bill that advanced that kind of aim. It is very clear that the preparation of this bill has been both rushed and botched and the coalition cannot in all good conscience simply let this go through in its current form. This is especially so when individuals such as Luigi Palombi and groups such as AIPP Australia and the Intellectual Property Committee of the Law Council of Australia have made it clear to us that there are a number of significant problems with this bill and that its passage should not be expedited.
That is before we get to the problem, a very familiar recurring one with this government, that clearly many affected stakeholders had not been adequately consulted. In fact, in some cases they were not aware of the existence of the bill until we sought comment from them about it. Among many potential problems with the bill there are clearly at least two sets of inconsistencies between the content of clause 160A and the content of the Australia-US FTA. Article 17.9.7 of the FTA allows for Crown use of an invention without authorisation by the patentee only in the case of public non-commercial use or national emergency. But this legislation takes it much further. This legislation now proposes to allow application of Crown use of an invention to a much wider set of contexts. Under this bill, the Crown could use inventions without authorisation in any situation in which such use is considered necessary for the proper provision of services, where those services are primarily funded by the Commonwealth or a state. If it is passed, it seems to us that the bill would also override the conditions of article 17.10.4(a) of the FTA which require that, in respect of regulated goods such as pharmaceuticals, a product cannot be marketed where the product is claimed in a patent, at least without the clear consent of the patent owner.
There are some further serious questions around whether the passage of this legislation would place Australia in breach of a number of its obligations under the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights Protocol, or TRIPS as it is commonly known. Firstly, the bill's wording defies the 2003 decision made by the WTO General Counsel that a country can grant a compulsory licence to produce and export pharmaceutical products to what is termed 'an eligible importing member', where that eligible importing country is a member of the WTO. Instead, the legislation clearly says that such a country does not have to be a WTO member at all. I might also stress that one of the reasons for the General Counsel's decision to limit waivers under article 31(f) of TRIPS in such a way to member countries was that it provided a clear incentive for nonmembers to join the organisation. To add to that, any sensible reading of the WTO's decision would suggest that to be classed as an eligible importing member, that member would need to have registered its intention to import. But in stark contrast to that principle, this bill allows any person at all to apply for a licence and therefore to do so in an ad hoc way. To compound the issue, the WTO requires an eligible importing member to have made a prescribed notification to the council for TRIPS as a precondition for the requirements of article 31(f) to be waived. But that requirement clearly cannot be practically enforced if the conditions relating to registration are so significantly watered down in the first place.
We are also dubious about whether there is genuine consistency between the WTO approach, on one hand, and the provisions that appear in this bill, on the other, that allow for orders for ancillary compulsory licences and cross-licences. That begins with the changes in the bill that seem to permit compulsory licences to be granted for blocking patents yet do not appear to be consistent with the obligations outlined in article 31(f). More to the point, the provisions in the bill relating to ancillary compulsory licences and cross-licences give rise to what are surely a series of unintended consequences. In fact, it has been put to the coalition by a number of parties that the provisions of clause 136F are so odious that they should be removed from the bill altogether. They have the domino effect of making other clauses, like clauses 136H, 136J, 136L and 136M, unworkable as well. Moreover, the drafting work that has been undertaken on the bill in the explanatory memorandum seems to have taken next to no account of the findings of the Productivity Commission report on compulsory licences that was publicly released at the end of May, only a few weeks ago.
That report contained a very specific recommendation that the government should seek to remove altogether section 136 of the Patents Act. And yet the government has not only failed to do that but has significantly extended the reach and force of section 136 instead. It also seems to be a strange piece of timing, to say the least, that this bill is being introduced not only straight after the Productivity Commission report has been completed, but also when the government continues to delay publicly releasing the report of the committee that has conducted its pharmaceutical patents review. That critical work was completed in May, but no-one seems to be clear on when the findings of the panel will be released let alone be met with a response from the government.
The introduction of this legislation clearly should have been part of a coordinated and holistic approach to remedying existing problems in the patent system. But in many respects the decision to do the reverse has been a metaphor—a metaphor for Labor's erratic actions in the development of this bill more generally. It is symptomatic again of Labor's muddle-headed approach to so many of its decisions and actions in the innovation, industry and science portfolio and its unwillingness to take responsibility and to be accountable for its litany of mistakes.
Among many other examples, I am reminded of the criticisms made by the government's own hand-picked expert adviser on innovation, Terry Cutler, who continues to make pointed critiques of the government's incapacity to understand, let alone implement, almost anything that he has advised on or told the government to do, especially in relation to the strangling of the R&D tax incentive and activity in Australia, such a crucial plank of our future economic success. I am also reminded of the government's stubborn unwillingness to bring the CSIRO to account for a series of inaccurate and misleading statements that have been made to the Senate estimates committees, including the recent incomprehensible answer to question AL156 which says that no CSIRO employee provided false evidence under oath during cross-examination in the AAT case involving Martin Williams, when an analysis of the transcript of that case suggests that there are at least 100, and more precisely around 128, separate instances of CSIRO officers providing false evidence in the case.
All of this takes me back to these sweet-sounding words that Labor shouted from the rooftops upon the release of its so-called New Car Plan, only for its car industry policies to subsequently completely unravel with tens of thousands of jobs lost, Mitsubishi's local manufacturing gone, Ford's local manufacturing sector end and now Holden anxious about its future. It is particularly disappointing that false promises and undertakings have now been made yet again, with the presentation to the parliament of legislation that plainly does not honour its stated intent and that simply should not be passed. The minister should have appreciated the very constructive efforts of the shadow parliamentary secretary, Senator Colbeck, to identify the succession of flaws and to improve this legislation before us. He should have shelved the bill at least in its current form, gone back to the drawing board and started again, not to mention that in such circumstances the time, or more specifically, the lack of it, that has been provided to the Standing Committee on Social Policy and Legal Affairs to consider and report on the legislation has been utterly inadequate. Indeed, my colleague and one of the members of that committee, the member for Pearce, provided the House with a clear insight into those problems last Wednesday morning. In essence, the inquiry was, extraordinarily, only allocated one hour of hearings and there was no call for submissions. Coalition members were also unable to attend the committee meeting where the report was discussed because there were problems and inflexibility in finding a time from a very limited range of options that was mutually suitable.
It is also my understanding that in addition to what the member for Pearce told the House, coalition members of the committee were not even able to write a dissenting report because the process was so rushed that they were not even given a copy of the draft committee report until shortly before she was required to address the House. This is a disgraceful precedent to set. We have processes in this place to ensure adequate scrutiny and discussion of intended legislation. There is an utter and arrogant disregard for that process which could end up having extraordinary implications and unintended consequences. But again, there is a nil-care factor from this government.
In characteristic fashion, Minister Combet has neither welcomed nor listened to sensible and well-meaning advice and he has presided over a process that has been appallingly and poorly handled. I would urge those members who are in any doubt about whether to pass this bill, not to do so. There will be many problems to which it is likely to give rise and the best course at this stage for the government is to start rewriting the legislation and, as part of that process, drafting some sensible, practical wording that will allow such damage to be avoided.