Scott Ludlam (WA, Australian Greens) Share this | Hansard source

No, and I will speak to my reasons for not doing that. I understand the point that you raise, Senator Collins, and I will take it as read that that is the position of the opposition for that series of amendments. The reason I am moving them separately is that this amendment deals specifically with flagrancy, and in a moment I will get to my strong concerns with how wide the term 'facilitate' is. But I will move through these amendments one at a time.

Noting the comments from both the government side and the opposition side, I am not going to detain us for too long before putting the amendment. It might sound a little bit technical, and I do not believe by any means that the concerns that I am putting on the record have been met by the comments of either the opposition leader here this afternoon or by the government. I will quote briefly from the Australian Digital Alliance submission to the bill, because it goes to the direction and the target of this amendment. The way that they put it is in their submission to the Senate inquiry is thus:

… the most preferable outcome would be to consider flagrancy as part of the scope for the online locations that can be blocked under the injunctive process (ie, a precondition for eligibility for site blocking injunction, not merely one of the factors to be assessed in determining whether to make an order). The flagrancy of the infringement is frequently referred to in the explanatory memorandum. It is a strong safeguards to ensure that injunctions are used against the most blatantly infringing sites et cetera without catching infringing services.

That is why we have targeted the amendment in the way that we have to effectively raise the threshold, or raise the bar, to make sure that in order for a court to issue one of these injunctions on application by a rights holder the sites must be flagrantly infringing copyright. I do not think that is unreasonable. I think it is a great shame that, evidently, this deal has been done outside this chamber and nobody from the major parties is inclined to consider this amendment. Nonetheless, I commend it to the chamber.