Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Hansard source

When we concluded just before question time, Senator Fierravanti-Wells had just concluded the government's position. I will now move to our position on Greens amendment (2). I might suggest to Senator Ludlam that he move amendments (2), (3), (7) and (8) together, as they all deal with the issues he raised, as indeed does amendment (2), which removes facilitation of copyright infringement as a criterion for issuing an injunction, and the issue of imposing flagrancy as a criterion.

With respect to the first point, Labor understands the concerns raised by some in this debate about the breadth of the term 'facilitate' in this bill. However, it is important to note the context in which the word appears. The bill only covers websites which have the primary purpose of infringing copyright or facilitating copyright infringement. Clearly, all manner of websites might unwittingly and unintentionally facilitate the infringement of copyright in one way or another, but that is not the test. The question is whether it is the primary purpose of a website to do so. As a result, Labor is satisfied that it is appropriate for facilitation to remain in the bill, and we will not support this amendment.

With regard to the second point, with respect to flagrancy, as I have said, the 'primary purpose' test in this bill imposes a deliberately high burden on rights holders making their case to the Federal Court. This amendment would add to the test a requirement that a site flagrantly infringed copyright. Flagrancy is a concept known to Australian copyright law, and it has been used in legislation similar to this bill in other jurisdictions. However, as I have said, and as the committee concluded, the primary purpose is the appropriate threshold requirement for the grant of an injunction. I note that, under the bill as presently drafted, flagrancy is already a matter the court can take account of in deciding whether to grant an injunction. Similarly, the court can also take into account whether the site shows a disregard for copyright generally. Labor believes that the current drafting is appropriate, and will not support amendments with respect to imposing flagrancy as a criterion.

The TEMPORARY CHAIRMAN: Senator Ludlam, do you want to move only amendment (2), or a broader range of amendments?