Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Hansard source

It seems to me that we have taken 45 minutes for the government to get its position all out on the table. For those who are following the debate, the government brought forward the Copyright Amendment Bill 2006, and they then brought forward a number of supplementary amendments to that and then another group of amendments. Some of those amendments then amended the first lot as well. The government has now taken the opportunity of explaining its position and the number of amendments that it is now seeking to move to amend the Copyright Amendment Bill 2006 to accord with the various recommendations and submissions of the parties to the Senate Standing Committee on Legal and Constitutional Affairs.

I can say at the outset that, from Labor’s perspective, the process seems a little untidy, quite frankly. It would have been far more helpful for the government in this instance to have taken a leaf out of its own book—when it did the Anti-Money Laundering and Counter-Terrorism Financing Bill, it withdrew the exposure bill and then had another go and brought forward an exposure bill to leave it on the table a little bit longer to ensure that all of those interested parties had been able to have their say. What it looks like is that we have amendment piled upon amendment piled upon an amending bill. To try to find a position through all of that is no easy task. I can say, though, that the government did pick up many of the recommendations of the Senate legal and constitutional committee, so I cannot be too hard on the government in that respect. But I suspect I will be as the night progresses—it is more than likely.

The government now has a more reasonable bill, and I suspect it could have easily got there without having gone through this tortuous process. However, there can still be some unintended consequences, as some of the consultation process appears to have been truncated and some of it, quite frankly, took too long. From my memory, back in 2001, when I was a parliamentary secretary to Mr McClelland, who was then the shadow Attorney-General, Phillips Fox was undertaking the digital review. The fair use issue was truncated by two years before we got to that review, and now we have this Copyright Amendment Bill.

Most of the submitters complained, and those who did not complain appeared to at least recognise that the process seemed short towards the end. By the time we got to an exposure draft, to a bill and then to the committee, it appeared to be a very truncated process, and it would appear that this can be confirmed by the number of submissions to the committee even after the closing date. Submissions continued to be made to various parties, and to me, even after the committee report had been presented. I am sure submissions were also being made to the government, which would seem to be evidenced by the amendments to the legislation. The submitters were successful in some parts and not in others in persuading the government of the merit of their arguments.

In all, that leaves me concerned that this matter will have to be revisited—that there still may be unintended consequences, and some areas may be unclear, for various stakeholders within the industry. But when you look at the basic premise—that we are trying to achieve some consumer benefit—that does allay some of my concerns. It is well past the time for issues such as time shifting and format shifting to be dealt with. It is unfortunate that the government has dealt with it in the way it has but, be that as it may, it is well overdue. Consumers need some certainty about what they can do, and copyright owners want to maintain their protections and their rights.

It is pleasing that the government has moved significantly away from many of the strict liability offences. The government might be able to reflect on whether the report is still accurate, but it would seem that the issues around criminal liability and the number of strict liability offences that were put forward were extreme to say the least. They covered the whole gamut of the area—they certainly drafted diligently to ensure that no-one, from consumers to business, would escape a strict liability offence.

The submission indicated that we do understand the need to ensure copyright holders’ rights are protected, but a lot of water has flowed under the bridge. Many common-law countries do not have strict liability offences in respect of copyright on their statute books, and they certainly have not found their way into patent or trademark law in Australia. I always hate saying things like that, because sometimes I am surprised the following year when I see trademark law or patent law changed to accommodate those statements I made. But let us hope that that does not happen.

The committee highlighted a range of deficiencies, and I think Ms Weatherall summarised that point. She pointed to many deficiencies with the proposed criminal liability provisions, both from a policy level and in relation to the likely practical impact. In her view, the reach of the provisions is overly broad and most problematic where they apply to acts not made for a commercial purpose or in a commercial context but as a necessary part of conducting ordinary legitimate business by ordinary Australians. That encapsulates the entire area.

The position is that strict liability provisions remain, and I urge caution here. I am not convinced. In the short space of time we have had since the government proposed very strenuous strict liability provisions, many of them covering a range of circumstances, the government’s first position was to take away five of them. Their next position was to take a few more away, perhaps when they understood the effect of Ms Weatherall’s submission. So we have the government backsliding on strict liability. But the concern is that there are still strict liability provisions left. At what point do you stop? Do you stop at a point that is easily and clearly definable, to give certainty to industry and consumers, where strict liability offences apply and where that will be supported by public and business education campaigns so they are aware of what the impact will be?

If you have done that, that is helpful. However, I am not sure that you have or that you have been able to articulate it here with any great certainty. I can foreshadow that we will not move amendments that go to this area, because it is much easier in a sense to mention all the concerns that we have. We note that you moved some way at first. We note that you then slid a lot further. However, we do not know the complete effect of what is left. We have to take it, by and large, on a kiss and a promise that you have got it right.

What also worries me is how the infringement notice scheme will work. But I will come back to that when I get an ALRC report. I am sure you have read it; it is the principled regulations. Hopefully, if my staff member is listening to me, he will bring it down so I will be able to refer to it. Perhaps I can deal with some of it from memory. That ALRC report deals with what would be regarded as model clauses that you would find in an infringement notice scheme. It is important to understand that, if you are going to have an infringement notice scheme, you then require strict liability offences.

To ensure that they sit together well you need to have followed those model provisions in the ALRC report so that all of those issues are covered off. I suspect, Madam Temporary Chair, you will give the government the opportunity to tell me whether they have followed those model provisions. The other position we have come to is that we have now removed 12 strict liability offences—those that the government believe ‘average’ consumers, if there is such a thing, may be susceptible to—and then we have left the commercial type of strict liability offences. But, as I have indicated, if they are to be coupled with an infringement notice scheme then the infringement notice scheme should be at least efficient to the extent that it is compatible with other infringement notice schemes.

If you look at the operation of it, it seems to suggest (a) that you pay a penalty to the Commonwealth—that would be a normal outcome of an infringement notice scheme—and (b) forfeit to the Commonwealth each article, if any, that is alleged ‘to be an infringing copy of a work or other subject matter that is alleged’. Then in (ii) it mentions ‘each device that is alleged’. So it seems to be that there are two provisos. It says:

The regulations may make provision enabling a person who has alleged to have committed an offence of strict liability against this Division to do both of the following ...

So it would seem that both (a) and (b) have to be satisfied. And in (i) and (ii) of (b) there is an ‘and’, so both of those have to be satisfied. I am not sure what happens if you only have one and not the other. I am not sure whether it would create a problem if, for each article, you only had the article and not the device. I am not a perfect enough drafter of these things to understand that. It would probably not be a problem, but I raise it as one of the subsidiary issues. A person might have the device and no article. It may be that the alternates or an ‘or’ might have been a little bit more helpful in relation to ‘each article that is alleged’. But I suspect the regulations may go some way to sorting that question out.

The other issue is the regulations and that, when you do those, you do undertake to at least look at the principled regulations of the ALRC and use the model in constructing them so that there is some uniformity across the Commonwealth. Wearing another hat, I note that in the Customs area you use infringement notice schemes, and I am sure they exist in other areas of the Commonwealth. In implementing them it is helpful to ensure that there is some consistency in approach.

The concept of forfeiture to the Commonwealth is another matter that I would raise. It is a case of whether it is permissible to forfeit, on having paid a penalty. The other question is whether, if the penalty has been paid but then you are asking for a forfeiture to the Commonwealth, you would then have to reward by just means. In other words, is it constitutionally valid to have both provisions of paying a penalty and forfeiting? I understand the Commonwealth does have the power to seize, but in this instance you are asking the citizen to forfeit to the Commonwealth each article and each device, if any. The ‘if any’ might survive the ‘and’, but I think that is a difficult way of drafting these provisions.

I see that I am going to be challenged in being able to finish but I am sure if I sit down I will get another opportunity. I will stop at this point and let someone else have a reasonable attempt.