Senate debates

Tuesday, 9 May 2006

Documents

Tabling

Photo of John HoggJohn Hogg (Queensland, Deputy-President) Share this | | Hansard source

Pursuant to standing orders 38 and 166, I present documents listed on today’s Order of Business at item 13 which were presented to the President, the Deputy President and temporary chairs of committees since the Senate last sat. In accordance with the terms of the standing orders, the publication of the documents was authorised. In accordance with the usual practice and with the concurrence of the Senate, I ask that the government response be incorporated in Hansard.

The list read as follows—

(a)   Committee reports

1.
Joint Standing Committee on Electoral Matters––Report––Funding and Disclosure: Inquiry into disclosure of donations to political parties and candidates (received 31 March 2006)
2.
Committee of Senators’ Interests––Report 2/2006––Review of arrangements for registration of Senators’ Interests (received 6 April 2006)
3.
Legal and Constitutional Legislation Committee––Report, together with Hansard record of proceedings and documents presented to the committee––Exposure draft of the Anti-Laundering and Counter-Terrorism Financing Bill 2005 (received 13 April 2006)
4.
Parliamentary Joint Committee on Intelligence and Security––Report––Review of the listing of the Kurdistan Workers’ Party (PKK) (received 26 April 2006)
5.
Select Committee on Mental Health––Final report––A national approach to mental health: From crisis to community (received 28 April 2006)
6.
Community Affairs Legislation Committee––Report, together with Hansard record of proceedings and documents presented to the committee––National Health and Medical Research Council Amendment Bill 2006 (received 2 May 2006)
7.
Economics Legislation Committee–Interim report––Provisions of the Petroleum Retail Legislation Repeal Bill 2005 (received 2 May 2006)
8.
Environment, Communications, Information Technology and the Arts Legislation Committee––Report, together with Hansard record of proceedings and documents presented to the committee––Australian Broadcasting Corporation Amendment Bill 2006 (received 2 May 2006)
9.
Foreign Affairs, Defence and Trade Legislation Committee––Report, together with documents presented to the committee––Provisions of the Australian Trade Commission Legislation Amendment Bill 2006 (received 2 May 2006)
10.
Foreign Affairs, Defence and Trade Legislation Committee––Report, together with documents presented to the committee––Provisions of the Export Market Development Grants Legislation Amendment Bill 2006 (received 2 May 2006)
11.
Legal and Constitutional Legislation Committee––Interim report––Provisions of the Customs Legislation Amendment (Border Compliance and Other Measures) Bill 2006 (received 2 May 2006)
12.
Legal and Constitutional Legislation Committee––Report, together with documents presented to the committee––Provisions of the Federal Magistrates Amendment (Disability and Death Benefits) Bill 2006 (received 2 May 2006)
13.
Legal and Constitutional Legislation Committee––Report, together with Hansard record of proceedings and documents presented to the committee––Migration Amendment (Employer Sanctions) Bill 2006 (received 2 May 2006)
14.
Legal and Constitutional Legislation Committee––Final report, together with Hansard record of proceedings and documents presented to the committee—Provisions of the Customs Legislation Amendment (Border Compliance and Other Measures) Bill 2006 (received 4 May 2006)

(b)   Government response to a parliamentary committee report

Select Committee on the Free Trade Agreement between Australia and the United States of America––Final report (received 2 May 2006)

(c)   Government documents

1.
Operation of the Aged Care Act 1997––Report for the period 1 July 2004 to 30 June 2005––Erratum (received 24 April 2006)
2.
Australia and the International Financial Institutions 2004-05 (received 24 April 2006)
3.
Australia’s Aid: Promoting Growth and Stability (received 26 April 2006)
4.
Department of Health and Ageing––Statutory review of the Gene Technology Act 2000 and the Gene Technology Agreement (received 27 April 2006)

(d)   Reports of the Auditor-General

1.
Report no. 36 of 2005-2006––Performance Audit––Management of the Tiger Armed Reconnaissance Helicopter Project—Air 87: Department of DefenceDefence Materiel Organisation (received 2 May 2006)
2.
Report no. 37 of 2005-2006––Performance Audit––The Management of Infrastructure, Plant and Equipment Assets (received 3 May 2006)
3.
Report no. 38 of 2005-06––Performance Audit––The Australian Research Council’s management of research grants (received 4 May 2006)

(e)   Return to order

Statement of compliance with the continuing order of the Senate of 30 May 1996, as amended on 3 December 1998, relating to indexed lists of files is tabled by the Communications, Information Technology and the Arts portfolio agencies (received 24 April 2006)

Ordered that the following committee reports be printed, in accordance with the usual practice:

Standing Committee of Senators’ Interests;

Select Committee on Mental Health;

Community Affairs Legislation Committee;

Environment, Communications, Information Technology and the Arts Legislation Committee;

Foreign Affairs, Defence and Trade Legislation Committee; and

Legal and Constitutional Legislation Committee.

The government response read as follows—

Government Response to the Final Report of the Senate Select Committee on the Free Trade Agreement between Australia and the United States of America

Recommendation 1

Labor Senators recommend that the Senate agree to the Australia-US Free Trade Agreement Implementation Bill.

Response

The Government agrees with this recommendation.

Chapter 2 - Process

Recommendation 2

That the Prime Minister order a review of the Treaties Council with particular consideration to ensuring that when international agreements are being negotiated there is:

  • timely consultation with States and Territories regarding National Interest Analyses,
  • a more systematic approach to consultation and consideration of when negotiations should be elevated to Ministerial level.

In addition, because of the significant increase in negotiation of bilateral agreements, the review should consider mechanisms to ensure that current legislation/regulation across all jurisdictions, conforms and continues to conform to treaties.

Response

The Treaties Council was established according to the Principles and Procedures for Commonwealth-State/Territory Consultation on Treaties, which were adopted by the Council of Australian Governments (COAG) in June 1996. The Council has an advisory function to consider treaties and other international instruments of particular sensitivity to the States and Territories. The Council has in fact convened only once, in November 1997, and its advisory function is primarily performed by the Commonwealth / State and Territory Standing Committee on Treaties (SCOT), which meets twice a year (and can meet more frequently if required), and comprises officials representing the Premiers’ and Chief Ministers’ Departments and the Commonwealth Departments of the Prime Minister and Cabinet, Foreign Affairs and Trade and the Attorney-General.

Conducting effective and timely consultation between the Commonwealth and the States and Territories in regard to international agreements, as well as ensuring that legislation across all jurisdictions conforms to concluded treaties, is already a primary purpose of existing consultative mechanisms, including the SCOT. The Government believes that these mechanisms are adequate to achieve their goals, however, a review of the consultative arrangements is currently being conducted by COAG senior officials. The first session, to settle its terms of reference, was held in Canberra on 5 May 2005.

Recommendation 3

Labor Senators recommend that the Government introduce legislation to implement the following process for parliamentary scrutiny and endorsement of proposed trade treaties:

(a)
Prior to making offers for further market liberalisation under any WTO Agreements, or commencing negotiations for bilateral or regional free trade agreements, the Government shall table in both Houses of Parliament a document setting out its priorities and objectives, including comprehensive information about the economic, regional, social, cultural, regulatory and environmental impacts which are expected to arise.
(b)
These documents shall be referred to the Joint Standing Committee on Foreign Affairs, Defence and Trade for examination by public hearing and report to the Parliament within 90 days.
(c)
Both Houses of Parliament will then consider the report of the Joint Standing Committee on Foreign Affairs, Defence and Trade, and then vote on whether to endorse the Government’s proposal or not.
(d)
Once Parliament has endorsed the proposal, negotiations may begin. Once the negotiation process is complete, the Government shall then table in Parliament a package including the proposed treaty together with any legislation required to implement the treaty domestically.
(e)
The treaty and the implementing legislation are then voted on as a package, in an ‘up or down’ vote, i.e. on the basis that the package is either accepted or rejected in its entirety.
(f)
The legislation should specify the form in which the Government should present its proposal to Parliament and require the proposal to set out clearly the objectives of the treaty and the proposed timeline for negotiations.

Response

Under Section 61 of the Australian Constitution, treaty making is the formal responsibility of the Executive rather than the Parliament. However, the Government considers that it is only proper that Parliament has a role in scrutiny of trade agreements. The constitutional system ensures that checks and balances operate, through Parliament’s role in examining all proposed treaty actions and in passing legislation to give effect to treaties and the judiciary’s oversight of the system. The Joint Standing Committee on Treaties (JSCOT)—a committee initiated by this Government—provides for Parliament’s involvement. In those cases where an agreement might go beyond existing regulation, the Parliament has the right to vote on legislative change required as part of that agreement.

The Government considers the efficiency and certainty of the current process enables it to negotiate with its overseas counterparts with authority and credibility. This is particularly important in trade negotiations which are often characterised by offers and counter-offers, for which negotiators require some level of flexibility to respond.

The Government considers the report’s recommendation on trade treaties and the Parliamentary process would be unworkable. It would circumscribe the capacity of the Government to secure the best possible trade outcomes from trade negotiations. It would undermine the Executive’s constitutional authority to sign treaties. Furthermore, it is not clear why trade treaties should receive additional scrutiny to any other treaties.

The Government is committed to ensuring that information on trade negotiations is made readily available to the community and to consulting those likely to be affected by the Government’s negotiating position. While all treaties are tabled in both Houses of Parliament for at least 15 sitting days prior to binding treaty action being taken, since negotiations for major multilateral treaties are generally lengthy and quite public, parliamentary debate often takes place for a much longer period than this, as the issues become publicly known. In cases when implementing legislation is necessary prior to ratification, Parliament has a further opportunity to debate the treaty. The Government makes its decision on whether a treaty is in the national interest based on information obtained during consultations with relevant stakeholders. Inevitably, the final decision necessarily involves a balancing of competing interests. The Government considers that the objective of ensuring both that the Government is able to energetically pursue opportunities for trade growth, and that appropriate consultation on negotiating objectives is undertaken with the broader community, are best met by current Parliamentary and consultation processes and practices.

Recommendation 4

Labor Senators recommend that Australian governments—prior to embarking on the pursuit of any bilateral trading or investment agreement—request the Productivity Commission to examine and report upon the proposed agreement. Such a report should deliver a detailed econometric assessment of its impacts on Australia’s economic well-being, identifying any structural or institutional adjustments that might be required by such an agreement, as well as an assessment of the social, regulatory, cultural and environmental impacts of the agreement. A clear summary of potential costs and benefits should be included in the advice.

Response

The Government agrees with the need for appropriate assessments of the likely economic and other impacts of bilateral FTAs prior to their conclusion. It has followed that approach in relation to AUSFTA, Singapore-Australia FTA (SAFTA) and the Australia-Thailand FTA (TAFTA). As well as commissioning independent assessments of the likely effects of these agreements prior to negotiations, DFAT commissioned a detailed assessment of the economic and environmental impacts of AUSFTA as finally agreed. That study, by the Centre for International Economics was released on 30 April 2004.

It may be appropriate in some circumstances to request the Productivity Commission to undertake assessment of aspects of trade agreements. It is unlikely that any study could definitively answer all the issues addressed in the recommendations prior to commencing negotiations, in the absence of the detail of outcomes of the agreement. The Government’s approach has been to use economic modelling and analysis prior to agreements as a guide to the potential benefits available from a particular negotiation. At the same time it is conscious that there will be additional benefits and other implications that cannot be captured by economic modelling. In relation to the AUSFTA and other agreements, the Government has consulted extensively to ensure that the fullest possible account is taken of potential impacts of a proposed agreement, in order that relevant concerns and implications are reflected in the government’s objectives and the instructions given to negotiators.

Recommendation 5

Labor Senators recommend that all committees and working groups prescribed by and established under the AUSFTA report annually on their activities and outcomes. These reports should be tabled in the Parliament by the Minister for Trade within 15 sitting days of their receipt. Each report shall be accompanied by a statement from the Minister setting out the Government’s views on the report received and drawing attention to any notable outcomes.

Response

The establishment of the various committees and working groups was a significant outcome to the AUSFTA negotiations, and one that was strongly pursued by Australia. The committees and working groups will provide important fora for pursuing issues of ongoing importance to Australia. The Government is putting considerable effort and resources into the activities of these bodies, however appropriate reporting times will depend on the work program of the particular committee or working group. The Government will consider the most appropriate way of consulting with the public, parliament and other stakeholders on the work program of these committees on a case by case basis.

Chapter 3 - Intellectual Property

Recommendation 6

Labor Senators recommend that the Senate establish a Select Committee on Intellectual Property to comprehensively investigate and make recommendations for an appropriate IP regime for Australia in light of the significant changes required to Australian IP law by the AUSFTA.

Response

The Government has no plans to propose that the Senate establish such a committee. The content of Australia’s intellectual property legislation is extensively governed by standards set in multilateral treaties to which Australia is a party as well as bilateral agreements including the AUSFTA. Australia was represented at the diplomatic conferences at which these multilateral treaties were negotiated. Various aspects of Australia’s intellectual property legislation have been reviewed by independent expert advisory committees in recent years.

Recommendation 7

Labor Senators recommend that the Commonwealth Government enshrine in the Copyright Act 1968 the rights of universities, libraries, educational and research institutions to readily and cost effectively access material for academic, research and related purposes. Labor Senators further recommend that the issue of such use of copyright material should be referred to the Senate Select Committee on Intellectual Property to investigate whether universities, libraries, educational and research institutions should be exempt from paying royalties after 50 years.

Response

The Copyright Act 1968 incorporates a number of exceptions which allow libraries to provide access to copyright material in certain circumstances, including reproducing and communicating material in response to requests by users undertaking research or study. Universities and other educational institutions are covered by statutory licences which allow use of copyright materials, subject to the payment of equitable remuneration.

Students, researchers and academics have access to copyright materials under the ‘fair dealing’ provisions of the Copyright Act which allow dealing in copyright material for a number of purposes, including research and study.

The Free Trade Agreement does not require the Government to alter any of these general exceptions that allow access to copyright material. However, changes will be required to implement obligations in relation to technological protection measures (TPMs). The Government has until 1 January 2007 to implement these obligations. There will be public consultation as part of the implementation process.

As to the recommended reference to a Senate select committee, see the response to recommendation 6.

Recommendation 8

Labor Senators recommend that the Senate Select Committee on Intellectual Property investigate options for possible amendments to the Copyright Act 1968 to expand the fair dealing exceptions to more closely reflect the ‘fair use’ doctrine that exists in the United States and to address the anomalies of ‘time shifting’ and ‘space shifting’ in Australia.

Response

The Attorney-General has commenced a review, being conducted by the Attorney-General’s Department, of whether an exception or exceptions based on the principles of ‘fair use’ should be added to the Copyright Act. An issues paper was released on 5 May 2005, with submissions invited by 1 July 2005.

Recommendation 9

Labor Senators recommend that the Senate Select Committee on IP review the standard of originality applied in Australia in relation to copyright material with a view to raising the threshold to a standard such as that in the United States.

Response

The standard of originality in Australian copyright law is not an issue arising from the AUSFTA. Any legislative change to the standard of originality could have major implications for established industries. The Government has no immediate plans to review originality under the Copyright Act 1968.

Recommendation 10

Labor Senators recommend that the Senate Select Committee on Intellectual Property should investigate the possibility of establishing in Australia a similar regime to that set out in the Public Domain Enhancement Bill 2004 (US), with a view to addressing some of the impacts of the extension of the term of copyright, in particular the problems relating to ‘orphaned’ works.

Response

Works of which the copyright owners are untraceable—or ‘orphan’ works—are within the scope of the ‘fair use’ review referred to in the response to recommendation 8.

Recommendation 11

Labor Senators recommend that the Senate Select Committee on Intellectual Property investigate amendments to Copyright Act 1968 to provide that a contract that purports to exclude or modify exceptions to copyright infringement such as fair dealing is not enforceable.

Response

This issue was the subject of an inquiry and report by the Copyright Law Review Committee, Copyright and Contract. The report is under consideration by the Government.

Recommendation 12

Labor Senators recommend that the Commonwealth Government use the two year implementation period applying to effective technological protection measures to ensure exceptions will be available to provide for fair dealing including temporary copies, research and study and the legitimate private use and application of all legally purchased or acquired audio, video, DVD and software items on components, equipment and hardware, regardless of the place of acquisition.

Response

This recommendation will be taken into account in the Government’s consideration of implementation of the obligations of the AUSFTA concerning circumvention of TPMs referred to in the response to Recommendation 7, and in the Attorney General’s Department’s review of a possible ‘fair use’ exception referred to in the response to Recommendation 8.

Recommendation 13

Labor Senators recommend that the Commonwealth Government use the two year implementation period applying to effective technological protection measures to ensure exceptions will be available to provide for the sale and distribution of legitimate audio, video, DVD and software items, as well as related components, equipment and hardware, regardless of the place of acquisition.

Response

The provisions of the Copyright Act 1968 regarding distribution of copies of copyright materials, including audiovisual items and computer programs, were the subject of review and report in the Review of intellectual property legislation under the Competition Principles Agreement. The Government’s response to that report was implemented by the Copyright Amendment (Parallel Importation) Act 2003, allowing the importation and distribution of legal copies of computer software and computer games.

Recommendation 13 will be taken into account in the Government’s consideration of implementation of the obligations of the AUSFTA concerning circumvention of technological protection measures (TPMs) referred to in the response to Recommendation 7.

Recommendation 14

Labor Senators recommend that the Commonwealth Government ensure that specific exceptions will be available in the implementation of Australia’s obligations in relation to Technological Protection Measures (TPMs) to provide for the manufacture of interoperable software products.

Response

This recommendation will be taken into account in the Government’s consideration of implementation of the obligations of the AUSFTA concerning circumvention of TPMs referred to in the response to Recommendation 7.

Recommendation 15

Labor Senators recommend that the Commonwealth Government implement Recommendations 15 and 16 of the Digital Agenda Review report prepared by Phillips Fox to ensure that temporary reproductions and caching are explicitly protected under Australian law.

Response

Amendments to the Copyright Act 1968 concerning temporary reproductions were included in Part 10 of Schedule 9 to the US Free Trade Agreement Implementation Act 2004 and in the Copyright Legislation Amendment Act 2004. These amendments effectively supersede Recommendation 15 of the Phillips Fox report. The Government is considering Recommendation 16 of that report as part of the Government’s broader review of the Digital Agenda reforms.

Recommendation 16

Labor Senators recommend that any notice and take-down scheme introduced by regulations should balance the interests of copyright owners while appropriately protecting the personal information of Internet users. Regulations should ensure that carriage service providers are not required to disclose personal information about their customers unless compelled to do so by a court order.

Response

Amendments to the Copyright Act 1968 to give effect to Article 17.11.29 of the AUSFTA regarding a scheme for limitations on liability of carriage service providers were set out in Part 11 of Schedule 9 to the US Free Trade Agreement Implementation Act 2004 and in the Copyright Legislation Amendment Act 2004. Complementary amendments were also made to the Copyright Regulations 1969. The scheme came into effect on 1 January 2005.

The provisions reflect Australia’s legal and social environment and have been developed with regard to the issues experienced in the USA. The procedure for obtaining subscriber details relies on existing Federal Court processes.

Recommendation 17

Labor Senators recommend that the reasonable costs to internet service providers of complying with a notice and take-down procedure should be met by the issuer of the notice.

Response

The Government does not agree with this recommendation. The scheme for limitations on liability of carriage service providers referred to in the response to Recommendation 16 provides legal incentives for carriage service providers to cooperate with copyright owners in deterring the infringement of copyright. The scheme limits the scope of remedies available against service providers where the service provider complies with certain conditions. Therefore, while the carriage service provider incurs costs in complying with the scheme, they derive a benefit by doing so. In these circumstances, it was not considered appropriate that the issuer of the notice be required to reimburse a carriage service provider for reasonable costs incurred in complying with takedown notices. To minimise abuse of the notice and takedown procedure, the scheme provides for remedies against a party issuing a notice who knowingly makes a misrepresentation.

Recommendation 18

Labor Senators recognise that assessing whether a copyright infringement has occurred is a complex issue, appropriately determined by a court. Any notice and take-down scheme should not require a carriage service provider to assess whether a copyright infringement has occurred, or the relative seriousness of any infringement.

Response

The scheme that came into effect on 1 January 2005 does not require a carriage service provider to assess whether a copyright infringement has occurred, or the relative seriousness of an infringement. Where a notice of claimed infringement is received from a copyright owner the carriage service provider is required to expeditiously remove or disable access to the material referred to in the notice and no independent assessment of the material is required by the carriage service provider. Expeditious takedown is also required if the carriage service provider becomes aware, by some other means, of facts and circumstances that make it apparent that the material is likely to be infringing. In this case, some assessment is required, but only in relation to the likelihood that the material is infringing.

Chapter 4 - Pharmaceuticals

Recommendation 19

Labor Senators support Joint Standing Committee on Treaties (JSCOT) recommendation 5 that any independent review must ensure the fundamental integrity of the PBS listing processes, should not consider information that was not before the Pharmaceutical Benefits Advisory Committee (PBAC) and should base its recommendation on the same criteria as PBAC. The submission of the pharmaceutical company to the independent review should be made public.

Response

The Minister for Health and Ageing released a statement on the implementation of Australia’s AUSFTA commitments, under Annex 2-C, on 4 February 2005. This statement sets out comprehensive principles for the operation of the independent review.

An independent review will be made available only where the Pharmaceutical Benefits Advisory Committee (PBAC) has declined to recommend the listing of a drug on the Pharmaceutical Benefits Scheme (PBS). An applicant, in requesting a review, will be required to identify specific issues in dispute to be subject to review and the review may only consider those issues. The review may consider only the information submitted to the PBAC and any documents generated as part of the PBAC process. No new information or data may be considered. The reviewer will not make a recommendation but will present findings concerning the specific issues in dispute.

Once a review has been completed, it will be provided to the PBAC, together with any comments from the sponsor. The PBAC will then reconsider the application taking into account the findings of the review. The outcome of the PBAC’s reconside