Senate debates

Wednesday, 27 June 2012


Treaties Committee; Report

5:31 pm

Photo of Simon BirminghamSimon Birmingham (SA, Liberal Party, Shadow Parliamentary Secretary for the Murray Darling Basin) Share this | | Hansard source

On behalf of the Chair of Joint Standing Committee on Treaties I present the 126th report on Treaty relating to the Anti-Counterfeiting Trade Agreement tabled on 21 November 2011.

Ordered that the report be printed.

I move:

That the Senate take note of the report.

In taking note of this report on the Anti-Counterfeiting Trade Agreement—or ACTA, as it has become known—which was tabled in the Australian parliament on 21 November 2011, I highlight that this is a particularly noteworthy report of the Joint Standing Committee on Treaties. It is noteworthy because it deals firstly with just one treaty, the ACTA treaty or agreement. Secondly, most significantly, it is noteworthy because it does not recommend ratification at this time but instead takes the unusual step for JSCOT in outlining a range of steps that the treaties committee believed should be taken prior to further consideration regarding potential ratification of the treaty.

This is unusual. It is a positive step from JSCOT in taking a treaty seriously and giving it the type of consideration necessary for these serious agreements. It is also positive in that it recommends a pathway forward and provides recommendations not just for the ACTA agreement but also for Australia's treaty, made in the process, that hopefully will encourage greater scrutiny and consideration of future agreements.

ACTA is an agreement designed to strengthen intellectual property standards around the world. It focuses, in particular, on trademark and copyright enforcement and establishes a legal framework for intellectual property enforcement. These are important issues and ones which I and the coalition have strong views about. We support such objectives: the protection of the intellectual property basis for many parts of our economy and for many individuals who are the developers and holders of such intellectual property.

ACTA has received strong support from Australia's performing arts community. All members of the community strongly support the need to protect the rights of the performing arts sector. It is certainly not ACTA's intent that the committee has expressed concern about. I think I can speak on behalf of all members of the committee in saying that there is a genuine belief in wanting to see IP enforcement enhanced to the best available standard.

The committee, however, is concerned that the text of ACTA potentially has a number of flaws and the committee is not yet convinced that the agreement in its current form would definitively be in Australia's national interest. Therefore the committee, in this report, asks for further analysis and clarification. In particular, the committee has noted the existing Australian Law Reform Commission inquiry into copyright and the digital economy, which is due to report in the not too distant future, and hopes that the ALRC inquiry will inform future consideration of ACTA.

The committee has expressed its concern about the lack of clarity in some places regarding the text and also about certain exclusion provisions to protect the rights of individuals and ACTA's potential to shift the balance in the interpretation of copyright, intellectual property and patent law. The committee has made nine recommendations in this report, the most important being that this treaty should not be ratified by Australia until: the treaties committee has received and considered independent and transparent assessment of ACTA's economic and social benefits and costs; the ALRC report has reported on its inquiry into copyright and the digital economy; and the Australian government has provided clarification of some of the terms used in the treaty.

I note that this is a unanimous report that entails some give and take on all sides. Some members of the committee are perhaps more hopeful that we will see a conclusion of ACTA than others. I certainly fall into the category of those who hope we will ultimately see something that provides a greater global strengthening of our copyright and IP laws, which can be done in harmony with other countries and provide greater protection for those who develop and should rightly have some ownership of their IP into the future. But I do commend the treaty secretariat as well as all of my fellow members and senators on JSCOT for the spirit in which they approached this task.

The treaties committee has also made some recommendations to provide for some particular exclusions in the event that an ACTA is eventually ratified by the government. These exclusions relate to how patents are treated in the application of civil enforcement and border measures as well as ensuring that products produced in Australia as a result of the invalidation of a patent or a part of a patent in Australia are not subject to the counterfeiting prohibition enactor. Finally, the exclusions ensure that the expression 'counterfeit enactor' is not applied to generic medicines entered or eligible for entry on the Australian Register of Therapeutic Goods.

I note on that last point that specific evidence was heard during the JSCOT hearings, and particular submissions were made regarding the treatment of generic medicines. I think that is an important area that I hope that the information provided by the government on this agreement in the future—and I hope it will be provided—covers some more specific consideration of its impact on the sector. I do particularly thank those in the generic medicine sector who provided particular evidence to the committee on those issues.

As I indicated, the committee has also taken an eye to the future and suggested that there are some lessons to be learned in the treatment of future agreements. It has suggested and recommended that future natural interest analyses of treaties, where the treaties clearly intend to have an economic impact, should actually include some assessment of the economic benefits and costs of the treaty. If not, and no assessment has been undertaken, at the least there should be a statement explaining why it was not undertaken or was unable to be undertaken. This has been an important factor in the committee's deliberations on this, with some members of the committee particularly concerned to have clearer evidence of the economic implications of this agreement.

There has also been some serious consideration given to the international reaction to ACTA, and indeed there is much international dispute about this agreement. Australia is not the only place where the agreement has been knocked back. Indeed, it comes from countries numerous in number, and many countries whose approaches you would expect Australia to take note of. Accordingly, the committee has recommended that in any future agreement or any future consideration of the agreement Australia should also have regard to the ratification status of the ACTA agreement, particularly in the EU and also in the United States. I do note that a range of European countries, including Germany, Switzerland, Poland, the Czech Republic, the Slovak Republic and Holland have taken positions of suspending consideration of ACTA, or indeed are doing similar things and seeking further information.

In closing, as I indicated this is a significant report of the treaties committee. I think it shows that the treaties committee is keen to ensure that its work in this parliament is work that enhances Australia's treaty-making process and that ensures appropriate scrutiny is applied to treaties that Australia enters into. I hope that the recommendations provided will be taken seriously. I hope that the recommendations will also be acted upon swiftly, because I do think that at its heart the intentions of ACTA are important and I would hope that the government, working if need be with others who have developed this treaty, can bring something back to the treaties committee to recommend ratification in the not-too-distant future once the various recommendations have been acted upon and taken into consideration. I commend the report to the Senate.

5:41 pm

Photo of Scott LudlamScott Ludlam (WA, Australian Greens) Share this | | Hansard source

I would just like to add a few comments to those of the deputy chair of the committee on behalf of the Australian Greens.

I suppose I will lead off with where Senator Birmingham left off. I suspect that his view is that his glass is half full on the eventual ratification of ACTA; I can assure the chamber that mine is half empty. I do not believe that this is a document that should come into force, and I am extremely pleased that the Joint Standing Committee on Treaties has done something quite unusual; it is unusual that the committee would have produced such a strongly worded document with so many conditions attached to the treaty being ratified by the Australian government. This is one instance where in the interests of a unanimous report—and this is a committee that is very collegial and that does try to bring all views to a consensus—I eventually elected simply to work with the recommendations that we had, and I am very pleased with them.

It is an agreement that attempts to create a global standard for intellectual property rights. It kicked off in 2007 with a discussion draft that was distributed in complete secrecy to lobbyists in the IP industry. In May 2008 that document was leaked through the wikileaks website, and the general public got its first look at it. So it is an agreement that was born effectively in secrecy and has remained there until not that long ago. It is called the anticounterfeiting agreement, but you might be surprised to know that it has got nothing whatsoever to do with currency fraud. It is in fact a proposal for an extremely strict global intellectual property rights enforcement regime.

The Australian government has signed this agreement and, almost alone in the world, still believes that it should be ratified without delay. The Joint Standing Committee on Treaties unanimously and strongly disagrees with this view. The committee took evidence from some of Australia's best minds on copyright counterfeiting and patient law and has today presented a unanimous report that distils many of the compelling reasons why I believe ACTA should not come into force.

DFAT, on the other hand—the department; the negotiators who spoke to the committee and who were quite generous with their time and came back for a second helping after the committee was unsatisfied with their first presentation—are optimistic that ACTA will come into force some day. In fact, the two occasions the department gave evidence to the committee were characterised by a kind of surreal, gritted teeth sort of optimism. The committee has thoroughly examined the text, the arguments and the positions taken by other governments, and we see the writing on the wall. I quote:

… there appears a very real possibility that ACTA will not be ratified by sufficient countries in order to come into existence.

Australia risks being out there, effectively completely alone in its support for this flawed instrument. Our recommendations revolve around a strong set of preconditions that would need to be met in order for the committee to consider or reconsider whether or not the agreement should be passed. I draw the chamber's attention specifically to recommendation 8: 'That the Anti-Counterfeiting Trade Agreement not be ratified by Australia until'—and there are three serious preconditions there. Firstly, the treaties committee has requested and would propose to then consider an 'independent and transparent assessment of the economic and social benefits and costs of the Agreement referred to in Recommendation 2'. That is the first thing. Somebody needs to go back and do some homework. At no stage was the committee able to be provided with information sector by sector as to the economic and social winners and losers of signing up to an instrument such as this. The work had not been done, and on a number of occasions we were told that it probably could not be. For something such as this, it is not enough to simply proceed on some kind of blind ideological faith that all forms of trade agreement are uniformly good for all people in all countries, and that was the proposition that seemed to be advanced to JSCOT, with nothing to back it by way of formal or quantitative evidence.

The second part of recommendation 8 goes to the review into copyright that is currently being undertaken by the Australian Law Reform Commission. That is an issue that is quite central to the way that this instrument would operate if it did come into force. We believe that the committee, before it opens up the question of whether ACTA actually should be ratified again, should have in its possession that important piece of work by the ALRC. Thirdly, we propose that the Australian government issue notices of clarification in relation to the terms of agreement as recommended in other parts of the report. So we have put together quite a comprehensive list of things that the government and its trade negotiators, if they are insisting on proceeding with this instrument, should come back and clarify and provide. They should just be upfront and let the Australian public know—in this instance through the committee—what exactly it is and who exactly it is who will be benefiting from this treaty should it pass.

We heard a great deal of evidence about the fact that no reforms to Australian laws would need to be made in order for this agreement to come in force, and therefore it is appropriate for us to wave it through. Setting aside the arguments that were put by several witnesses that actually this is about imposing quite an onerous and flawed IP regime of other countries that would be effectively setting the standard, what the committee found is that in fact we would need to move several amendments to acts through the Australian parliament because of severe problems that would be thrown up if this agreement came into force. For example, the parliament would need to legislate to formally exclude patents from the application of civil enforcement and border measures components of the act or agreement. This is, I think, something that we just were not able to get through to those who represented the government in the committee hearings. Secondly, the parliament would need to legislate to ensure that products produced in Australia as a result of the invalidation of a patent or part of a patent in Australia are not subject to the counterfeiting prohibition in ACTA. This is a treaty so breathtaking in its vagueness and ambiguity that the people that we took evidence from simply were not able to settle the question as to whether ACTA would apply or influence patent law at all. The negotiators believe it does not, but it is nowhere in the document. Thirdly, the parliament would need to legislate to ensure that the expression 'counterfeit' in ACTA—which is a curious choice of words, as I am sure you agree—is not applied to generic medicines entered or eligible for entry on the Australian Register of Therapeutic Goods. We had the generic medicine producers give quite compelling evidence to us that in fact this agreement trespasses all over the kind of work that they do to bring inexpensive medicines into Australia.

Senator Birmingham was quite right when he noted the experience of other countries overseas in their interpretations of ACTA, where it is quite severely on the way out. It is one of the reasons that we believe Australia should not ratify this agreement at all, because at the present time, if we did so, we would find ourselves the only country in the world that did so. Some governments, on the other hand, do appear to be listening to their populations. Europe and the United States have seen large and persistent demonstrations. In Germany there were demonstrations in 40 towns in June, and 100,000 people came out across Europe in February, 25,000 or so of them in Munich. People are organising around the world to block this treaty. The European Parliament's chief investigator into ACTA recommended against it coming into force because the intended benefits do not outweigh the potential threats to civil liberties, and there were resignations: the first rapporteur, Kader Arif, resigned in protest when the EU signed ACTA. This is an agreement that is seen as being extremely problematic around the world.

We have not in the committee gone very much into detail and did not directly address the Trans-Pacific Partnership Agreement, which many are aware is coming down the pipeline directly behind ACTA, but I think this is the first domino being pushed over into the TPPA, and I think it heralds some very significant flaws there as well. There is a great deal wrong with this treaty, and I urge members of the public to read the JSCOT report. It is very interesting reading, largely thanks to the work of the chair, the deputy chair and the cross-party MPs who came to the meetings and the hearings. I would particularly like to thank the staff of that committee, who are exceptionally diligent in the work. Lastly I thank the witnesses. There was very, very high-quality testimony provided to the committee from some of the best minds in the country. On ACTA we learned a great deal from Dr Matthew Rimmer, Dr Hazel Moir and Dr Palombi from the ANU. I would like to mention Dr Kimberlee Weatherall and Anna George from the University of Sydney, who provided us with real insights from the perspective of former diplomats at the WTO. Lastly, I acknowledge Ellen Broad from the Australian Digital Alliance, who have done a great deal of work in drawing together common-sense arguments from around the world. I thank the chamber for the opportunity to comment, and I thank the other members and the chair of the committee for putting this document together. I seek leave to continue my remarks later.

Leave granted; debate adjourned.