Andrew Murray (WA, Australian Democrats) Share this | Hansard source

The Intellectual Property Laws Amendment Bill 2006 is largely a consequence of the review of intellectual property legislation under the Competition Principles Agreement, which resulted in a report produced by the Intellectual Property and Competition Review Committee chaired by Henry Ergas, which led to the establishment of an interdepartmental committee by the Minister for Industry, Tourism and Resources.

Perhaps it is a mark of the complexity and the extent of the commercial interest involved in this field that it has taken so long for this to reach Senate approval. It is a pity it has taken so long because the matter needs to be addressed. We have to be careful of believing that just because this is in a non-controversial section of the Senate agenda—which means that all parties support it—we can take the view that this is a relatively minor or insignificant bill. It is not. This is quite a substantive bill. It has 16 schedules and it has 41 pages but, unusually, the explanatory memorandum is longer, at 54 pages, indicating that this is a field which requires careful explanation.

Those of us who are familiar with the ways in which laws are developed know that an explanatory memorandum is relied on as part of the view a court should take with respect to particular issues. Perhaps that is one of the reasons that the Senate Scrutiny of Bills Committee has started, in recent years, to pay such attention to the quality of explanatory memorandums and to encourage the government to lift their game in that respect.

Schedules 5 to 10 of the bill amend the Patents Act 1990 to broaden the springboarding regime for pharmaceutical patents, allow for awards for exemplary damages in patent infringement actions and clarify prior users’ rights in the granting of patents. Schedules 1 to 4 amend provisions of the Trade Marks Act 1995 relating to revocation of trade marks and public access to trade mark files. Schedules 11 to 16 make minor technical amendments to the Patents Act 1990, Trade Marks Act 1995, Designs Act 2003 and Plant Breeder’s Rights Act 1994.

Schedule 1 revokes the registration of trademarks. Schedule 2 relates to the nonpayment of fees relating to trademarks. Schedule 3 concerns the registration process for the certification of trademarks. Schedule 4 relates to the availability of documents about trademarks. Schedule 5 covers exemplary damages. Schedule 6 concerns the prior use defence. Schedule 7 covers springboarding and patents. Schedule 8 concerns the compulsory licensing of patents. Schedule 9 and 10 have the minor technical amendments on innovation patents. So it is a comprehensive bill. It is very apparent to me that for those involved it is an area which, because it impacts on their businesses in an integral way, is in fact quite controversial. This field is of massive commercial significance.

Those people who took the time to write submissions and appear before the Senate Economics Legislation Committee had a keen interest in the outcome and there were a number of well-argued views presented to the committee. I think it is unfortunate the committee inquiry was a short one. I think it is unfortunate the committee was only tasked with examining a couple of schedules, because this is the sort of field where you have to be on your toes on a more holistic basis.

I was pleased to receive a fax from the Hon. Bob Baldwin on 12 September to advise me that the government was, to an extent at least, taking up the recommendations of the Senate economics committee, in particular in relation to schedules 7 and 8, which cover the springboarding and patents area and the compulsory licensing of patents. It was heartening to see that the government agency, IP Australia, has initiated a consultation paper to gather a wider range of views concerning the issue of springboarding so that it can have input from a diverse range of industries. This is a rapid response, largely to the submission by Nufarm to the Senate economics committee.

As I said, amendments in schedule 7 initiated a range of responses. Medicines Australia submitted to the committee that the proposals in the bill were likely to undermine Australia’s reputation for encouraging, supporting and rewarding innovation and had the potential to further weaken Australia’s intellectual property framework relative to its competitors. It is important to note, because of that remark, that there are sectors of business and industry that do not view this bill in a wholeheartedly supportive manner. However, the Generic Medicines Industry Association supported the amendments and argued that the proposed section 119A should apply retrospectively and were supported by Nufarm.

These are obviously matters which are hotly contested by different groups in Australia with different financial and commercial interests in the application of intellectual property law. It should be increasingly clear to everyone why one of the most hotly contested and integral parts of the US-Australia Free Trade Agreement and the subsequent debate in this place was the protection of American versus Australian intellectual property rights internationally. They recognise it as the way of the future. It is time that Australia caught up in this field. It is no longer where something is manufactured or what the physical product is which generates a high level of income; it is where the ideas come from and how well they are protected in domestic and international law which is of growing importance in many fields, including that of genetic and DNA research.

With respect to schedule 8, I was also heartened to hear from the Hon. Bob Baldwin in response to the recommendations of the Senate economics committee that IP Australia had had discussions with Professor Corones from the University of Queensland. The professor had made some erudite and effective points about the interaction between the proposed amendments to the Trade Practices Act and the proposed amendments to the Patents Act.

The outcome of those discussions are that IP Australia has prepared—and it has been tabled—an amended or supplementary explanatory memorandum and has more clearly set out the relationships between the provisions of the Trade Practices Act and the Patents Act to assist in any dispute about their interaction. I would make the point, however, that if there is ambiguity you are far better off clarifying it in the statute than in a supplementary explanatory memorandum. I do hope you have not taken the easy way out and that this one is not going to come back and bite us on the posterior.

This process is a reminder that the parliamentary scrutiny system and the interaction with the bureaucracy can work at a very effective level. The Senate economics committee made recommendations, they were promptly acted upon by the responsible parliamentary secretary and his department and an outcome has been achieved, prior to the Senate voting on this bill today. If only this could happen in relation to the Trade Practices Act and the recommendations of the Senate Economics Reference Committee report of March 2004, The effectiveness of the Trade Practices Act 1974 in protecting small businessbut of course that concerns another minister, not this one.

Although the committee did not make any recommendations in relation to schedule 4, I will make some brief comments on this. As many senators are aware, I am an advocate for a stronger Freedom of Information Act and I have a private senator’s bill on the Notice Paper to strengthen that act. I mention this because schedule 4 of this bill amends the Trade Marks Act to make documents relating to trademark applications publicly available. Currently, people have to make applications under the Freedom of Information Act to achieve this.

However, the way in which the amendment is structured has meant that IPTA, the advocacy group in this area, have argued that it is unclear what standard the registrar will be using to determine whether a document should be held confidentially. They point out that, if the applicable standard is unknown or below the standard that is currently applied under the Freedom of Information Act, applicants could be reluctant to lodge commercially sensitive material with IP Australia, and this in turn would make registration difficult. Further, the IPTA argue that, if a trademark applicant claims confidentiality for certain documents and the registrar does not agree that they should be held confidentially, it is unclear from the amendments to the legislation what recourse the applicant has against such a decision. IP Australia has acknowledged that it will be consulting further on this matter, which is prudent and advisable, but it is concerning that legislation is passing prior to the finalisation of the consultation process and without resolving this concern.

Intellectual property is often the lifeblood of corporations, and in this information age it is something which business must be willing to fight to preserve even more than before. Unfortunately that leads to a ‘deep pockets’ mentality. It is a substantial limitation to the effectiveness of the provision I have just outlined that there is a lack of clarity about what is confidential material, and those without deep pockets may be unable to pursue the matter effectively. A lack of clarity about the recourse a company may have if they disagree with the registrar’s decision may result in effective denial of justice. IP Australia have informed the committee that they are in the process of undertaking further consultation on how this will operate, and I assume that IP Australia will then report back to the Senate economics committee on this matter. I am quite sure from my knowledge of the chair and my understanding of the members of the committee that the committee will remain interested in this matter and will be pleased to hear the advice once it is available.