Kelvin Thomson (Wills, Australian Labor Party) Share this | Link to this | Hansard source

On behalf of the Joint Standing Committee on Treaties I present the committee's report entitled Report 126: Treaty tabled on 21 November 2011.

In accordance with standing order 39(f) the report was made a parliamentary paper.

by leave—I present the Joint Standing Committee on Treaties Report 126: Treaty tabled on 21 November 2011 which contains the committee's views on the Anti-Counterfeiting Trade Agreement, which was tabled in the Australian parliament on 21 November last year.

The Anti-Counterfeiting Trade Agreement, or ACTA as it is known, has been the cause of much controversy. Thousands of people have taken to the streets in Europe to protest against it. The committee's review of the agreement has brought a greater understanding as to why. ACTA is an agreement designed to strengthen intellectual property standards around the world. It focuses on trademark and copyright enforcement and establishes a legal framework for intellectual property enforcement. ACTA has received support from Australia's performing arts community and the committee strongly supports protecting their rights.

It is not ACTA's intent that the committee is concerned with. The committee is concerned that, despite ACTA's intent, it exhibits a number of flaws, and the committee is not yet convinced that the agreement in its current form is in Australia's interest. We have asked for further analysis and clarification to be undertaken. This analysis includes the existing Australian Law Reform Commission Inquiry into Copyright and the Digital Economy. The committee is concerned about the lack of clarity in the text, the exclusion of provisions protecting the rights of individuals, and ACTA's potential to shift the balance in the interpretation of copyright law, intellectual property law and patent law.

The committee has made nine recommendations, the most significant being:

That the Anti-Counterfeiting Trade Agreement not be ratified by Australia until the:

It is very noteworthy that this is a unanimous report—government, opposition and Greens MPs and senators, with very different perspectives on many issues, have worked hard to produce a unanimous report and I commend my fellow MPs and senators on the spirit in which they approached this important task.

The committee has also recommended that:

In the event that the Australian Government ratifies the Anti-Counterfeiting Trade Agreement (ACTA), the Government prepares legislation to:

With an eye to the future, the committee has also recommended:

That National Interest Analyses of treaties clearly intended to have an economic impact include an assessment of the economic benefits and costs of the treaty, or, if no assessment of the economic benefit of a treaty has been undertaken, a statement to that effect, along with an explanation as to why it was not necessary or unable to be undertaken.

The international reaction to ACTA, which, without exception, comes from countries which the committee considers would have the same interests as Australia, must also be taken into consideration. The committee has recommended that, given their importance in the world economy, Australia should also have regard to ACTA's ratification status in the European Union and in the United States of America. It must be said that ACTA's future is currently in the balance.

In Europe, Germany has not signed ACTA, and will not do so until the European Parliament has expressed an opinion; Switzerland has postponed signing ACTA until issues relating to personal freedoms have been clarified; a motion has been passed by the Dutch lower house recommending ACTA's rejection; Poland has suspended consideration of ACTA's ratification until at least the end of 2012; the Czech Republic has suspended the ratification process until further notice; the Slovak Republic has suspended the ratification process until further notice; and Bulgaria has suspended consideration of ratification until European Union member states elaborate a joint position on ACTA. ACTA was referred to the European Parliament's 31 member International Trade Committee which, in a 19-12 vote on 21 June, recommended the European Parliament reject the agreement. The European Parliament itself will vote on the 4 July. Given all these events, it would be prudent for Australia to take the cautious approach that the committee has advocated. Mr Deputy Speaker, on behalf of the committee, I commend the report to the House.

Melissa Parke (Fremantle, Australian Labor Party) Share this | Link to this | Hansard source

I am pleased to have this opportunity to speak on Report 126: Treaty tabled on 21 November 2011 of the Joint Standing Committee on Treaties regarding the Anti-Counterfeiting Trade Agreement known as ACTA. As the committee chair has noted, the committee's report is timely, coming as it does just a few days after the International Trade Committee of the European Parliament, INTA, voted to adopt the EU Rapporteur on ACTA David Martin's draft opinion proposing to reject ACTA.

The enormous disquiet regarding ACTA not only in the EU but also in the US, as covered briefly in chapter 8 of the committee's report, as well as the strong evidence given by many respected academic and professional experts in the field highlighting the numerous problems with ACTA, support the treaties committee's approach of exercising a high degree of caution in relation to this treaty.

Contrary to other multilateral agreements on intellectual property, such as the Agreement on Trade-Related Aspects of Intellectual Property Rights, or TRIPS, ACTA has been regarded—wrongly in the view of many experts—as a trade agreement, and thereby negotiated in an exclusive club approach in a secret and non-transparent manner outside of the usual fora established to address IP issues, namely the World Intellectual Property Organisation, WIPO, and the World Trade Organisation, WTO. The committee's report rightly highlights the many worrying aspects of the agreement and of the NIA that is being used to put the case for Australia's ratification of ACTA, including the absence of any economic cost-benefit analysis, the absence of justification for proposed new criminal penalties, the omission from ACTA of individual protections codified in the TRIPS agreement and the vagueness of terms used in ACTA such as 'intellectual property', 'piracy', 'aiding and abetting' and 'commercial scale'. While ACTA's title suggests it is aimed at copyright and trademark infringement only, the use of the term 'intellectual property' throughout the text import patents into the agreement.

As Dr Martin Cross representing the pharmaceutical group Alphapharm noted in his evidence:

The issue is that as soon as you extend it beyond trademark and copyright into intellectual property, you get into the area of patents. Patents are extremely grey, and the only way this is resolved these days is through complex legal proceedings. So you open up, in effect, a Pandora's box of issues by allowing the extension of ACTA into intellectual property. Unfortunately, the drafting of that allows that to occur.

Dr Hazel Moir of the ANU noted that the term 'piracy' in ACTA provides a misleading impression and is pejorative and inappropriate. She said:

… it is a very nasty political ambit claim when what we are actually talking about is unauthorised use.

Dr Luigi Palombi of the ANU noted that, because the agreement's language is ambiguous, confusion will exist between goods that infringe intellectual property rights and goods that are pirated or counterfeited. Dr Matthew Rimmer pointed out that the Copyright Act does not even use the term 'piracy' so its inclusion in ACTA is unnecessary.

Participants in the inquiry noted the lack of evidentiary proof in the NIA of the so-called counterfeiting and piracy problem and expressed concern that ACTA may not comply with the Washington Declaration on Intellectual Property and the Public Interest. For instance, it does not ensure that legal penalties, processes and remedies are reasonable and proportional to the acts of infringement they target and do not include restrictions on access to essential goods and services including access to the internet or to needed medicines and learning materials. Also, that ACTA fails to avoid excessively punitive approaches to enforcement such as disproportionate statutory damages, undue expansion of criminal and third party liability and dramatic increases in authority to enjoin, seize and destroy goods without adequate access to procedural safeguards.

Associate Professor Kimberlee Weatherall noted the over-criminalisation contained in ACTA and the very wide possible interpretations of expressions such as 'aiding and abetting' which could, for example, include any site incidentally linking to or mentioning a website with infringing content. Former Australian diplomat Ms Anna George—who I note is in the gallery today—explained that the key NIA assessment that no new legislative measures are required to implement obligations under the ACTA in Australia is too narrow a basis by itself for assessing national interest given that, 'unlike other property rights, IP has a long tail of legal and financial consequences affecting economic and social policy and intrudes in complex ways into private lives.'

Indeed, the list of frightening issues surrounding ACTA—in the way it was negotiated, in the content of the treaty itself and in the significant community and governmental opposition to the treaty around the world, particularly in Europe—indicated to me and to other members of the committee that Australia should be extremely wary about ratifying such an agreement in its present form. Hence the strong recommendations of the committee.

I thank those who made submissions and gave evidence to the committee and I commend the work of the committee and the secretariat in producing this report. I particularly want to pay tribute to the chair for his efforts to achieve consensus among committee members on this important issue for Australia; an effort that has resulted in a unanimous report.