Andrew Bartlett (Queensland, Australian Democrats) Share this | Hansard source

I presume we all want to get this wrapped up one way or the other by 11 o’clock this evening, so I will not talk for an excessive length of time, but I do want to put a couple of points on the record on behalf of the Democrats. I do not have a problem with governments listening to views from the US, Kazakhstan or anywhere else. The point is, though, that it is clearly the US view that has been adopted by the government, and I do have a problem with that. Everyone has a right to put in a view from anywhere, but the concern I have is that it is the US view that has been adopted. Again, before the cheap shots come out, that is not an anti-American comment. If we were talking about wheat then we would be horrified about giving the Americans any advantage, but in this area giving the US an advantage does not seem to be a problem. I read from paragraph 3.139 of the majority report of the Standing Committee on Legal and Constitutional Affairs:

The committee accepts the Department’s explanation of the need to ensure compliance with the AUSFTA. However, the committee notes the apparent divergence between the view expressed by the Department in the course of the inquiry—

into the legislation as it now stands—

and other previous interpretations of the AUSFTA put forward by the Department and the Federal Government.

That is why it is legitimate to ask the question: what has changed? Why is it that even under the department’s own reasoning, under their previous exposure drafts, there was a particular interpretation that was seen as consistent with the free trade agreement, and then suddenly at the last minute it was changed—the change in relation to the link between prevention of the infringement of copyright and TPM of the Copyright Act that occurred—particularly when it seems clear that this will tilt the balance further towards the US side of the argument? It is also a reminder that in this debate, as in many other debates, words are not what they seem a lot of the time.

When we are talking about terms like ‘free trade agreement’ and people like the Democrats express concern about it, that does not mean that we are anti free trade any more than it means that we are anti the USA. The concern, as was made clear by people back when there were committee inquiries into the free trade agreement, is that in many respects it is actually anti freeing up of trade—it is anticompetitive. To some extent you could say all copyright is anticompetitive. As I have said all the way through this debate, you are always faced with having to balance competing interests. The fact is the approach the government is now taking in regard to technological protection measures, at least on many people’s interpretation, goes beyond protecting our copyright to an anticompetitive measure more broadly. That is undesirable. I do not think there is any doubt that the free trade agreement, as it was agreed to by the Australian government and indeed, I might say, by the ALP, has components—not the whole thing, but components—that are anticompetitive and anti freeing up of trade. But that is, I suppose, revisiting a debate that we had a couple of years ago.

In pointing out that the ALP supported the Australia-US Free Trade Agreement after a couple of, frankly, fairly minor last-minute amendments put forward by the then leader, Mr Latham, does not negate the validity of the argument that Senator Lundy is making now. We all accept that the Australia-US Free Trade Agreement is in place, for better or worse, and I am not saying it is 100 per cent bad by any means. We certainly all therefore accept that, under the terms of that, we have to ensure that this aspect of our legislation is compliant with it by the end of this year. But within that, there is still leeway. There was leeway in respect of what the wording was in the exposure draft. That has been modified by the government. I think it is completely appropriate for questions to be asked, as Senator Lundy has, as to quite why that change was made. I also agree that the reasons given have not been particularly convincing.

Having said that, as is the case with much of this legislation and certainly this section as the committee inquiry demonstrated and the committee report noted, these are technical and complex provisions. There were different views put forward about this particular point and whether there is a link to copyright infringement and, indeed, how it portrays itself in the free trade agreement or in US law let alone in this legislation. I will conclude by going back to the point I started at in my first contribution this evening. It is not always clear who the winners and losers are out of all these changes, but I think it is a fairly safe bet that one group that will be the winners, at least for the next few years, will be the lawyers. To some extent that is unavoidable. Everybody will be testing the limits of what all this means with all of these changes.

I think we could have done a better job than we have, though frankly it is amazing that we have done as good a job as we have given the time frame. I think it is worth noting and giving some positive recognition to the government for taking on board, at least to some extent, the concerns that were raised from various people in the community. I particularly commend the work of the senate legal and constitutional committee. My views are not the same in totality as those the government members or the ALP members of the committee put forward but I do think, given the outrageously short time frame, the committee did an extraordinary job and those people that provided input to the committee did an extraordinary job.

I suppose if there is one example of the benefits of all this newfangled technology, then we are out of the era of 78 records, flexible LPs, eight tracks and all those things and into digital technology and CDs, past the wireless. There is simply no way we could have done it in that sort of time frame even a few years ago. The ability of people to put arguments online and to transmit data very quickly to try to get amendments up and scrutinise them very quickly using all this new technology is, frankly, the only way that we had any hope of being able to deal with the legislation and the large package of changes that the government has put forward including their further 80 amendments this week. But I still fear that we have come short of where we should be because of an unnecessarily truncated time frame. It seems frustrating after literally years of consultation that in the last couple of days so many things have to be rushed through when there is not the need to do so. In schedule 12 of the bill that these amendments go to, it is necessary to do so, and I accept that. Like Senator Lundy, I just do not accept some of the content of that schedule and I think these amendments do a better job of addressing those concerns.

Question put:

That the amendments (Senator Lundy’s) be agreed to.