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

Senator Lundy raised an issue that is important in that, when the AFP made their submission, they had not had an opportunity to look at all the strict liability offences. However, we will get to the AFP again, if not through estimates. But it would be helpful if we understood how the AFP intends to operate in this field now that at least the amendments upon the amendments upon the amendments are now finalised, because they have what is called a case categorisation and prioritisation model. They rate things as high, medium and low, and it depends on whether they accept a case as to how these matters will be enforced so that the consumers, during the education campaign, understand where the AFP will intrude and where they may or may not. I understand that you cannot direct the AFP as easily as that, but I think it is helpful that some of the guidelines between the Attorney-General’s Department and the AFP make it clear as to where and when they are more likely to act, depending on whether it meets the case categorisation and prioritisation model, the CCPM, where it will not, what happens to those where it does not meet the CCPM—where it is not accepted—where it goes to next and whether you intend to use an infringement notice scheme issued by Customs officials or by clerks in Attorney-General’s, as the case may be. How will that regime work?

We came across this in another bill—and I think the Attorney-General’s Department might be aware of it—which dealt with search and seizure powers for Centrelink. I might be talking about them out of school, but I understood that they had a range of minor fraud matters which did not meet the CCPM but which they were still vitally interested in—matters that they regarded as serious but not serious enough to warrant the Australian Federal Police to pick up. Centrelink were trying to pick up that workload themselves. In this area, they were seeking information from the government as to how to structure their enforcement regime, whether all the matters would be referred to the AFP for investigation, whether they would meet the CCPM or whether it was intended to use another law enforcement agency to enforce those less serious areas. I am seeking certainty so that the public understand how these matters will work.

There are a couple of other matters that I have not gone to in any detail. I will refer to them briefly. Firstly, the caching matter. Recommendation 10 states:

The committee recommends that proposed section 200AAA in Schedule 8 of the Bill be clarified to ensure that caching for efficiency purposes (proxy caching) does not infringe copyright; and to ensure that there is no doubt that the reproduction must be removed ...

It seems that the government has adopted the substance of the compromise recommendation from schools and screenwriters which I think I briefly referred to earlier.

In terms of record keeping for educational institutions, the bill contained a repeal of the provisions which give effect to a prescribed record-keeping system. If implemented, the Australian Vice-Chancellors Committee submitted that:

... an institution issuing a records notice would be required to reach agreement with the collecting society regarding the form of record keeping system or, failing that, apply to the Tribunal for determination …

This would involve enormous cost. In Labor’s supplementary report—and I am pleased to say that it looks like Labor has again been at the fore in trying to effect a reasonable outcome for all—recommendation 7 states:

Labor Senators recommend that Schedule 11 of the Bill be amended to remove proposed paragraphs 135K(1)(b)(c) and (d), and proposed paragraphs 135ZX(1)(b)(c) and (d) in relation to records notices.

This recommendation attempts to ameliorate the effects submitted by the Australian Vice-Chancellors Committee. The government of course has introduced a new regime for records notices—existing sections are retained and new provisions added so that where there is a dispute that cannot be resolved between the parties the Copyright Tribunal shall have jurisdiction. Again that seems okay, if I can use that colloquial language. The concern is whether in practice it does not have the effect the AVCC is concerned about, that it does create enormous cost through unintended consequences. In that instance, it appears to have satisfied the concerns. Again, without more information, I am unable to come to a conclusive view, but I will take it on the government’s say-so that in fact it does meet those requirements that were raised and that the parties will not unnecessarily be burdened by cost when they try to fairly resolve the issues between them.

Some of the other broader issues I will not go to in detail given the time. However, there were a range of additional amendments which went to definition of ‘record’ in section 51(1) and the removal of parody or satire provisions from section 200AB and the insertion of a new provision—sections 41A and 103AA. Certainly all the submissions we heard from indicated that that needed rectification of some type.

Amendments (15) to (18) have expanded commercial advantage to include profit—one wonders whether you need to include loss as well sometime, but I will not go there if you do not need to. Amendment (20) inserts a new subsection 200AB, which clarifies cost recovery for not commercial advantage or profit. I will not go through all the amendments, but it seems that we have got to a much better position than when we started this process.

In conclusion, I want to touch on strict liability again. There is still some concern from those who want to protect their copyright—copyright owners and copyright holders—to ensure that the regime is fair and that they can rely on the government to effectively implement a scheme that adequately polices this area. They are also concerned to ensure that the Australian Federal Police have sufficient resources and are clear about what their duties will be under this regime so that they can assist in combating copyright abuse—in fact, I think they prefer to refer to it as theft. I am seeking some assurances from the government that they have worked out the details of what I referred to earlier and that they can provide some assurance to copyright owners that the Australian Federal Police have sufficient resources to assist with enforcement in this area.

The last matters I want to go to—and, really, it was a late run—are a number of concerns raised by the ISPs, the internet service providers. They had some disquiet, as it was conveyed to me, about how this bill would operate. It seems that a major concern for the ICT sector relates to the proposed distribution of strict liability offences. As I understand it, some of those have been dealt with. But if the government could turn their minds to how the ISP concerns have been met, we could at least have it in the transcript that we have raised it and that the government have provided some answers.

Regarding the definition of the term ‘distribution’ in section 132AI, given that there is no scope for a court to interpret, it seems that an ISP could be subject to criminal sanctions. What they are trying to understand is what sort of criminal liability might attach to an ISP in this area and whether there is scope for the ISP to be found liable for authorising copyright infringement in situations where an ISP could be held criminally liable for the actions of others, under the strict liability provisions that still remain. Will the distribution offence in the bill capture an ISP or another person, such as a subscriber of the ISP, who has used the ISP’s network to communicate infringing copies? I can understand their concern. I make no value judgement about it, provided that the minister can provide some certainty as to how it would apply. That would go some way to mitigating the concern I have.

I go to the interrelationship between the new strict liability criminal offences created by this bill and the safe harbour provision that could limit the ISPs in certain circumstances—whether or not that regime provides a shield to criminal action. Of course, it is one of those matters that should be on the table for continual review. I note that the government has provided a review mechanism in the bill. Perhaps I worry unnecessarily, but, given that we started back in 2001 with the digital agenda review, the other fair use review, we do not want to end up with a process such as this again. In government, Labor would not undertake this messy approach, I have to say. In opposition, we had no choice but to work with the government to try to improve the legislation. With that, I will take my leave.