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

by leave—I rise to make some brief remarks about the government's response to the 126th report of the Joint Standing Committee on Treaties and move:

The Senate take note of the document.

Senators might be forgiven for not knowing that this report was focused on the ACTA treaty, the Anti-Counterfeiting Trade Agreement. It is one that has been widely discredited so this response by the Australian government to the Treaties Committee's discussion of ACTA is greatly appreciated. This has been described as an extremely lonely bandwagon in that the Australian government has piled onto a bandwagon that nobody else is on. So I have been waiting with some interest to see what the government would make of the Treaties Committee's highly critical report into ACTA. Generally the Treaties Committee, one that I have really enjoyed serving on for the past 4½ years, is pretty diligent in its work but it is rare to see language as strong as this deployed in effective condemnation of an agreement—and this was a unanimous report on ACTA.

The first European Parliament's rapporteur, Kader Arif, resigned in protest when the EU signed ACTA. The European Parliament's chief investigator into ACTA recommended against it and then the European Parliament voted against it. JSCOT produced a very a strongly worded document with a large number of conditions attached to the treaty being ratified by the Australian government. Effectively it was a red light that said not to ratify this thing until you have satisfied these various conditions and until you are in possession of some very specific kinds of information which have not been provided. Yesterday we got a really weak response. The Treaties Committee found and exposed very deep flaws in the national interest analysis and exposed a failure to assess the costs and benefits. We were told it was fine and the national interest analysis already included a requirement for a regulatory impact statement. What the government response reveals to me is that the government has barely even read the Treaties Committee report. While at first blush it looks as though the Australian government has agreed with a great deal of what the Treaties Committee found, when you go into some of the summary text and some of the exposition as to what the government thinks it is agreeing with, it is fairly apparent that the Treaties Committee's report was either not read or if it was read it certainly was not understood.

For example, the response reveals that the government is still not considering the issues raised in the inquiry about the costs. Trade treaties such as this are sold to the Australian public and particular industry sectors as being all benefit with no costs, so we wanted a proper cost-benefit analysis conducted. There are administrative costs, for example, of participating in yet another forum on IP and coordinating that with all the others, including—and here's an acronym sandwich—WIPO, the TRIPS Council, the WCU, the WHO and our trade agreements such as AUSFTA, the unloved free trade agreement and I remind senators of what the Productivity Commission said about these bureaucratic costs. There are real costs of locking us in to a given model in an area that is changing as rapidly as IP. The government have indicated that they are getting some independent analysis, and this is one sound instance where they have listened to the recommendations of the Treaties Committee. I commend the government for that and I thank the minister's office for responding very rapidly to our calls yesterday to find out who is doing the analysis and when it is likely to be produced. I do thank the minister for providing us with the information. It is PricewaterhouseCoopers that they have had working on this for at least two months—and they will table it some time towards the end of the year, says the government's response. I hope that is not on Christmas Eve, along with all the other stuff that tends to get tipped into the public domain while nobody is watching. I think this one is going to be particularly interesting.

I remind PwC and the government that if the review were truly independent we would actually expect them to—and hope that they would—get in touch with stakeholders and experts, starting, for example, with the people who provided evidence to the Treaties Committee. So I look forward to seeing who PwC actually did consult with, to find out who they spoke to, and what kind of modelling they had done and, in particular, what their inputs were when assessing the cost of these agreements. It will not be good enough if they just wave their hands, as the government seems to have done, and say there are never any costs with these kinds of things.

In the absence of some calculation of the costs of the present system, let alone its benefits, there is no real basis for asserting that the system that we have at the moment strikes an appropriate balance of interests or that it should be internationalised. The government has provided some very brief clarifications to some quite complex problems and its response to recommendation 4 is fine but it does not explain why the Trade Related Aspects of Intellectual Property Rights provisions are not in ACTA. The clarification of the term 'aiding and abetting' in recommendation 5 is not helpful. These are clarifications that do not actually clarify. We need examples of the kinds of things that they envisage would be included. So reference to intention is useful, but how do we know whether the intention is an intention to do the act that aids/abets or an intention to participate in IP infringement? These are serious grey areas that the Treaties Committee, acting in good faith, asked the government to clarify. Unfortunately, in the course of clarification the government has done no such thing.

The government responds to recommendation 6, which asks for a clarification about what actually constitutes commercial scale by quoting the treaty back at us. Well, we already have the treaty language. I do not understand how can our laws cover indirect commercial advantage, for example. It is still entirely unclear. Section 132AC talks about substantial prejudicial impact and commercial scale—and the latter remains undefined. Section 132AD talks about 'profit or commercial advantage' without any further definition or clarification. As we know, article 23.1 of ACTA provides a broad definition of 'commercial scale', including at least those carried out as commercial activities 'for direct or indirect commercial or economic advantage'. This definition applies to single acts, and hence operates effectively to remove any requirement of commercial scale in determining that an act is criminal. Under the ACTA definition, for example, forwarding a single email without permission of the copyright owner—the author of the email—in a business context could therefore be construed as being a criminal act. That is the sort of grey area that we are talking about here. It is hard to imagine many businesses that do not engage inadvertently in some criminal copyright infringement on this kind of standard given the broad prevalence of copying—of newspaper articles, of journal articles and of pictures to put in PowerPoint presentations or brochures or whatnot. If that is to be construed as commercial scale—and on a strict reading it could be—we would appreciate clarification from DFAT as to how the definition of 'commercial scale' under ACTA is in line with existing law, given a number of academic submissions to this inquiry disputed that. References to provisions, subsections, explanatory memorandums, anything at all specific would really be helpful.

Overall this response reads as though the government have not changed their views at all. They have simply disregarded the findings of the JSCOT inquiry and are assuming that these issues can be sorted out with the kind of glib and rather dismissive response that we have here. I am alarmed because we have been here before. In 2004, a Senate inquiry found the IP standards adopted under the Australia-US Free Trade Agreement were at a net cost to Australia. We are a net IP importer, not exporter, so the standards that we adopted actually cost Australia. Needless to say, the Senate inquiry strongly condemned the process of negotiations whereby we handed off the advantages we had as to these issues. In 2010, Australia concluded ACTA, reinforcing the same problematic standards that we had an issue with in 2006, and negotiating it in much the same way, marred by allegations of secrecy and lack of protection of the public interest. In 2012, another parliamentary committee has found issue with ACTA, just as with the free trade agreement in 2006—and yet again DFAT has not bothered to address whether our negotiating stance is actually appropriate.

Here we are in 2012, and Australia is negotiating another trade agreement with an IP chapter, the Trans-Pacific Partnership Agreement, and again DFAT's negotiating position is to encourage the adoption of standards 'consistent with Australia's own'. We know that the ACTA text is on the table. We know two previous parliamentary committees, and a host of academics, economists and NGOs have issues with those standards. So what independent economic analysis determined that these standards were appropriate? Will the next parliamentary committee find the same issues in the TPP as they have in the free trade agreement and ACTA, and at what point will DFAT actually start listening? There is no real evidence presented in the government's response to the treaty's report that the government is listening just yet.

Question agreed to.