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

by leave—I move Australian Greens amendments (5) and (6) on sheet 7710 together:

(5) Schedule 1, item 1, page 3 (line 26), omit "proceedings.", substitute "proceedings; and".

(6) Schedule 1, item 1, page 3 (after line 26), at the end of subsection 115A(3), add:

  (d) if a person or body with a public interest in the action makes an application to be joined as a party to the proceedings—that person or body.

This is a very important amendment. We have picked up the most significant body of critique that came through the committee process and public debate. These two amendments together would allow third parties—for example, consumer, public-interest groups or individuals—to join the injunction applications as parties to make arguments against specific websites being blocked.

Currently, the only parties that would be involved are the internet service providers, the owners or hosts of the websites that are proposed to be blocked and those who are bringing the injunction in the first place, the rights holders. They are the only ones who can be a party. Our argument, very strongly backed up by a number of submitters to the inquiry, suggests that a much larger number of people are potentially affected and should therefore be able to join those court applications.

Foreign site owners are unlikely to contest injunctions, due to the cost of legal action in a foreign country. It is not inconceivable but is unlikely that they will front up to an Australian court or organise local representation because something is proposed to be blocked here. The experience of similar legislation in the UK has shown that ISPs are unlikely to contest injunctions beyond the first several examples. This was raised in the second reading debate. And why would they? We like to imagine that ISPs are going to steadfastly, every time one of these injunctions lands on their desks, step up and protect their users and fight these things, but we know that will not be the case. Cost and inconvenience will mitigate that substantially.

There will be, by default, no party to these injunctions arguing for the public interest. Try to visualise how it will look in a year or two once the dust has settled—and maybe, by and large, some amongst us have forgotten that this even exists—if a rights holder bowls up and says, 'I want this site taken offline,' the internet-service provider offers no resistance and then the following day the site is gone. That is what we are talking about. When that becomes routine, here, that gives you an idea of why we are opposing this bill so strenuously.

Courts are allowed to approve public-interest organisations to present, to the court, as amici curiae or friends of the court. We saw this in the iiNet High Court case, but the Greens do not believe this is strong enough and that is why this amendment is worded more broadly. This amendment would then allow third-party organisations to join the legal action and oppose injunctions, opening the door for public-interest documents to be made in important cases.

The Electronic Frontier Foundation—a very large and reasonably well-resourced US digital-rights organisation—is very concerned about the way this legislation is being progressed. In a letter to Ms Dunstone, the committee secretary, on 16 April of this year, they put it the following way:

Beginning with the process, we are concerned that in most cases, there will be nobody to advocate for the retention of content for which a blocking order is sought. The Australian intermediary who is party to the proceedings—

in this case that is likely to be the ISP—

has no particular interest in opposing the blocking of foreign content. Although the foreign content provider is entitled to apply to the court to intervene in the proceedings, their joinder to the proceedings remains within the court's discretion (under proposed subsection 115A(3)), and this would entail considerable expense, due to the high costs of foreign parties securing representation before the Federal Court of Australia. As a result, most hearings are likely to be undefended, and the question of whether particular content should be blocked will seldom receive a full and fair hearing.

Thus it becomes routine that sites simply disappear.

In a briefing note provided by the Australian Digital Alliance on 15 June which is on their website, they put it this way:

… once the injunction is ordered, only parties to the original case or parties appointed by regulation can seek revocation or appeal.

As an example as to why this is worrying, say you are working in a cross-border research group that has stored huge data files in cloud facility. If that site is blocked (it is also heavily used by pirates you find out) you have no standing to ask the court for a review of that order, even though you may now not be able to access your data.

That trespasses a little bit on my forthcoming amendment, No. 9, I think, that Senator Collins was inquiring about before, but it would apply equally in the granting of the injunction—that, if your rights are about to be trespassed on, if there is data that you need to be able to access, if a service that your business uses or that you use is being attacked by a foreign rights holder because of something else that might be happening on that server or some other activity that that company or an individual might be carrying out, you cannot come to court and have that argument heard. You would be relying on the ISP to fight that for you and it may be that they will not do that, not through any impure motives on their part. It is just that Federal Court action and representation is extremely expensive.

We believe that third parties, which may be the kinds of public interest groups that have been name-checked a few times on the way through this debate, should be able to be a party to these injunctions if they are of particularly important cases. Also, I believe, should members of the general public, and that is why this amendment is very broadly framed.