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

I move Australian Greens amendment (2) on sheet 7710:

(2) Schedule 1, item 1, page 3 (lines 13 and 14), omit paragraph 115A(1)(b), substitute:

  (b) the online location flagrantly infringes the copyright; and

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

The committee is considering the Copyright Amendment (Online Infringement) Bill 2015. The question is that amendment (2) on sheet 7710, moved by Senator Ludlam, be agreed to.

Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to 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?

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

Sean Edwards (SA, Liberal Party) Share this | Link to this | Hansard source

The question is that amendment (2) on sheet 7710, moved by Senator Ludlam, be agreed to.

Question negatived.

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

by leave—I move Australian Greens amendments (3), (7) and (8) on sheet 7710:

(3) Schedule 1, item 1, page 3 (lines 15 and 16), omit " , or to facilitate the infringement of, " .

(7) Schedule 1, item 1, page 4 (lines 10 and 11), omit " , or the flagrancy of the facilitation of the infringement, " .

(8) Schedule 1, item 1, page 4 (lines 14 and 15), omit " , or facilitate an infringement of, " .

What these three amendments do collectively is remove the way that the bill is drafted at the moment, which allows rights holders to seek court injunctions to target sites that facilitate copyright infringement, as opposed to 'enable' copyright infringement. There has been a lot of commentary through the Senate inquiry and outside the Senate inquiry process that has been very concerned about the breadth of the term 'facilitate' as it applies to copyright infringement. It is unnecessarily broad, and it is unclear. It could be used to, for example, take down cloud computing storage sites or services that link shortening sites or social media sites. It could be used to take down sites that provide technical tools that have entirely legitimate uses—for example, sites that provide large file transfer software such as WeTransfer and others. These services absolutely could be argued to facilitate copyright infringement. There is nothing stopping you from, for example, using a file transfer platform like WeTransfer to transfer a copyright infringing item from one party to another. That is absolutely not why that tool was built and it is not why the vast majority of users would use a service like that. Nonetheless, it can be swept up.

The government will probably argue that the bill is drafted tightly enough as it is. I would take strong issue with that. If this is to be targeted we should not be including language as broad as 'facilitating'. I will again quote from page 7 of the Australian Digital Alliance submission:

The Macquarie dictionary defines 'facilitation' as:

1. to make easier or less difficult; help forward (an action, a process, etc.).

2. to assist the progress of (a person): to facilitate the customer to find the right product.

This is immensely broad language. It is exceptionally broad language for a bill that covers the consequences of knocking websites and platforms offline. They continue:

This could conceivably cover a number of online locations offering products that have legitimate uses, but which may also be used assist in copyright infringement. VPNs—

and I will be dealing with VPNs in a separate amendment shortly—

cloud storage providers, providers of Bit Torrent or Internet Relay Chat ('IRC') software, browser plug ins or conversion tools may all be covered, as may blogs or subreddits discussing techniques or sites that may be used to infringe. A project such as Open Rights Group's attempt to transparently list the sites that have been blocked under the UK legislation may have a primary purpose of facilitating copyright infringement if the majority of users used the list to find sites with infringing content.

And that is irrespective of the motives of those who put that list up there. Again, if we are going to have site blocking legislation such as this on the statute books—effectively an internet filter managed through the courts by foreign rights holders—shouldn't we ensure that it is targeted absolutely as narrowly as possible, not at things that facilitate copyright infringement but at things that infringe copyright? That is the distinction we are seeking to draw here. Senator Collins did indicate the position on the half of the opposition a short time ago. I would love to hear from the government why you would be knocking over a perfectly sensible amendment such as this.

Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Link to this | Hansard source

On the question of facilitation, I would just like to note that the bill contains a facilitation element because many of the online locations that are intended to be the subject of an injunction operate in such a manner as to avoid directly infringing copyright. For example, they do not host infringing content, but provide links or other means for users to obtain the infringing material. These websites are facilitators, and the bill is designed to ensure that they cannot avoid an injunction by simply not hosting or directly infringing copyright. Facilitation is intended to be a broad and flexible concept, as distinct from existing legal doctrine such as authorisation liability. In particular, in relation to amendment (7) it is unnecessary to include flagrancy as part of the threshold test in subsection (1). The existing primary purpose test is already an intentionally high threshold test that will not include legitimate websites. We have included a number of examples in the revised explanatory memorandum to make this adequately clear. For example, the primary purpose test would prevent an injunction to disable access to an art gallery website operated outside of Australia that may contain an unauthorised photograph.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

Minister, what you have just described—a website that could be interpreted as facilitating infringing material via links—could very well apply to a search engine such as Google. How do you intend to avoid that problem?

Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Link to this | Hansard source

I am instructed that the existing primary purpose test would cover that situation.

Sean Edwards (SA, Liberal Party) Share this | Link to this | Hansard source

The question is that amendments (3), (7) and (8) on sheet 7710, moved by Senator Ludlam, be agreed to.

Question negatived.

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

I move Australian Greens amendment (4) on sheet 7710:

(4) Schedule 1, item 1, page 3 (after line 17), after subsection 115A(1), insert:

(1A) To avoid doubt, for the purposes of subsection (1) a virtual private network is not an online location.

I will see if I can improve my luck on this one! This amendment goes to very serious concerns that I have that this bill could be used, and could be interpreted by courts, to prevent the use of VPNs—virtual private networks. It was an issue that was canvassed briefly in some of the contributions to the debate on the second reading. This amendment proposes to clean up this dangerous ambiguity, so that it is at least one thing that we do not have to worry about.

A VPN is a legitimate technical tool with many uses which have nothing to do with copyright infringement. It is used as a security measure and as a way for people to collaborate on a private network across multiple sites. I think Senator Leyonhjelm, in his earlier contribution, identified that when we log on to the Parliament House network from home base or from on the road, using our security token, we are in effect using a virtual private network. They have multiple legitimate uses across industry, government, security agencies—take your pick. You could argue that they also have more niche uses, which are nonetheless valuable and entirely legitimate. For example, a whistleblower could use a VPN to hide their internet address and protect their identity while revealing important information to a journalist. That would be one argument. A VPN may be used by a journalist to prevent their sources from being exposed. It may be used by a systems administrator to test if their company's network is functioning correctly.

Both the communications minister and the shadow Attorney-General have stated that the bill is not intended to capture or block or prevent the use of VPNs. But this is not good enough. Ambiguities have already been introduced—maybe wittingly, maybe unwittingly—by Senator Fierravanti-Wells's contribution before the debate was interrupted for question time. When interpreting whether these things are in or out, the courts must be given certainty as to parliament's intention. The smartest way for us to do that is to make sure that it is in the law. If any loophole is left in the legislation, then it may well be that these clauses are tested by rights-holders trying their luck, and the unintended—or intended—consequences of that would be quite profound.

This is a very simple amendment. It is designed to explicitly remove VPNs from the scope of the bill. I commend it to the chamber.

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

Labor shares the Greens party's concern that this bill should not capture VPNs. This bill, as I explained in my remarks earlier this morning, is directed only at the worst of the worst—websites which intentionally and brazenly flout copyright law. It is difficult to see how VPN services, which have a wide range of legitimate purposes, could satisfy the primary purpose test in this bill. Nevertheless, for the avoidance of doubt, Labor has asked the government to respond to the concerns expressed by the committee about this issue by inserting into the explanatory memorandum a clarification that the bill will not target VPN services. As a result, this amendment is superfluous.

I note, too, the undesirability of including in primary legislation a reference to a particular technology. We should strive to produce technology-neutral drafting. Thus, Labor will not support this amendment.

Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Link to this | Hansard source

On behalf of the government: it is unnecessary to include provisions to expressly exclude a VPN from the scope of the bill. The amendments are not intended to apply to VPNs that are promoted and used for legitimate purposes. VPNs have a wide range of legitimate purposes, and have no oversight, control or influence over their customers' activities. A VPN site with a legitimate purpose would not be blocked, as it does not have a primary purpose of infringing or facilitating infringement of copyright. The bill does not require clarity on the definition of sites that could be targeted, because a legitimate site of any nature would not pass the primary purpose test. Accordingly, we oppose this amendment.

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

Is the minister telling us—and I want to be very, very clear about this—that courts will be allowed to interpret what is legitimate use and what is illegitimate use of a VPN?

Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Link to this | Hansard source

They will; in accordance with evidence and under the parameters in section 115A that we discussed earlier.

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

Minister, where can we find a definition of 'illegitimate' for the purposes of how this section will be actioned?

Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Link to this | Hansard source

I think subsection (1) would adequately assist you, Senator Ludlam.

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

So for people listening to this debate from outside this house: if it is a rights-holder's view that an individual user is using a VPN to get a hold of content that is deemed to be in breach of copyright, who exactly would be injuncted? I guess what I do not understand is this: if there is a service provider out there offering a VPN service, is that site going to be made unreachable by everybody? Would you expect that a court would knock over use of that service for the entire Australian population, if one user is using it for illegitimate purposes? I genuinely do not understand how you are proposing to make this work.

Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Link to this | Hansard source

Senator Ludlam, I would refer you to section 115A, subsection (1):

The Federal Court of Australia may, on application by the owner of a copyright, grant an injunction referred to in subsection (2) if the Court is satisfied that:

(a) a carriage service provider provides access to an online location outside Australia; and

(b) the online location infringes, or facilitates an infringement of the copyright; and

(c) the primary purpose of the online location is to infringe, or to facilitate the infringement of, copyright (whether or not in Australia).

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

Minister, I need you to explain to us how, if I am a subscriber to a VPN service, I could use that service for a variety of uses—legitimate and illegitimate. Are you proposing to block my subscription to that VPN service provider? Or how, exactly, are you proposing to make it work? These are services that people subscribe to that offer services to people all over the world, including here in Australia, and the government will not be able to control what individual users choose to do with those services. The VPNs themselves do not host infringing content—I do not think you are implying that they do—so exactly what will be injuncted?

Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Link to this | Hansard source

It is the online location that has to satisfy the test.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

Minister, I am struggling to understand this. A VPN is a website. If it has 100 customers and 20 of them are using that VPN to then access and download infringing material, is it likely or possible—is there any possibility—that the VPN will be injuncted along with the sites that are being accessed via the VPN?

Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Link to this | Hansard source

I am advised that it is the online location that has to satisfy the test.

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

Minister, online location of what? This is starting to remind me of the parliamentary equivalent of Senator Brandis's train smash interview on Sky. It is the web address, is it, that you are going to injunct? Online location of what?

Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Link to this | Hansard source

I am advised that it is an online location that infringes the three provisions that I referred to earlier in section 115A—that is, a carriage service provider provides access to an online location outside Australia; and the online location infringes or facilitates an infringement of the copyright; and the primary purpose of the online location is to infringe or to facilitate the infringement of copyright, whether or not in Australia.

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

I know we tend to avoid drifting into hypotheticals, so forgive me if you think that is what I am about to do, but I cannot work out any other way of assessing whether the government knows what it is doing or I am simply misunderstanding the way that the act is going to operate. There is a VPN service provider out there that provides services to one million people, and they are using that for all manner of legitimate purposes in the way that we use the parliamentary VPN when we are distributed all over the country. I log on, I take out a subscription in that company and I use it to infringe copyright on a third-party site located somewhere else entirely. Are you seriously telling me that because of one bad egg—one user who is using it for dodgy purposes—you are going to knock that business out from its entire Australian customer base? I am reasonably sure that is not what is intended, but it is the way that you are making it sound, so please help us out. I get that you are going to block that site that I might be visiting using a VPN, but I do not understand how you can be proposing to knock the VPN business off the Australian internet at the same time.

Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Link to this | Hansard source

VPNs have a wide range of legitimate purposes and have no oversight control or influence over their customers' activities. A VPN site with a legitimate purpose would not be blocked as it does not have a primary purpose of infringing or facilitating infringement of copyright.

Sean Edwards (SA, Liberal Party) Share this | Link to this | Hansard source

The question is that amendment (4) on sheet on 7710 moved by Senator Ludlam be agreed to.

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

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

With the Senate's indulgence, I will also take my comments to amendment No. 9 rather than addressing them separately. These amendments would provide special standing for third parties wanting to intervene in an application for an injunction under the bill or to apply for an injunction once made to be rescinded or varied. In its present form, the bill provides that parties to an application for a site blocking injunction will be the rights holders, ISPs and the operator of the website in question, should they choose to appear. The bill does nothing which would alter the usual rules of civil procedure which govern standing, interveners and amicus curiae. However, I note that the bill does, in proposed section 115A(8) contemplate that a person nominated by regulation would be given standing to apply for injunctions to be rescinded. The explanatory memorandum to the bill notes that this role might be filled, for example, by the chair of ACMA or of the ACCC. Labor is satisfied that this is the correct approach and we call on the government to make such an appointment as soon as possible.

Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Link to this | Hansard source

The bill provides that the parties to the proceedings are the copyright owner, the carriage service provider and the person who operates the online location if, but only if, that person makes an application to be joined as a party to proceedings. There is no justification for creating a right for any individual to be joined in the proceedings. First, this could result in a flood of applications that have little prospect of success and which unreasonably use up court time and resources. Second, the Federal Court has shown in cases such as the Dallas Buyers Club case that it is perfectly capable of balancing competing public interest, including those of consumers. Under the bill, the court may take public interest considerations into account under proposed subsection (5). These are the impact on any person or class of persons likely to be affected by the grant of the injunction and whether it is in the public interest to disable access to the online location. Given that there are sufficient safeguards which ensure that the interest of particular individuals such as consumers can be taken into account, it is not necessary for a specific amendment to be included. Further, the bill enables the government to prescribe a person who may apply for an order to limit, vary or rescind an injunction, and this could include agencies such as the Australian Competition and Consumer Commission or the Australian Communications and Media Authority. These agencies are well placed to be able to assist the court in identifying public interest considerations, including those that affect online consumers. Further, if it is apparent in the future that another particular group's interests need to be represented, the government will consider whether they should be prescribed.

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

I might have missed a step there. How will the government decide that? Is the government going to be interviewing case-by-case or are you talking about deciding by a process of legislative amendment? What kinds of decisions are you talking about?

Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Link to this | Hansard source

It will be prescribed in the regulations.

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

Is the minister telling us that, if a particular case is afoot and the government believes that there is a strong enough public interest argument for another party to be joined to contest an application, you would legislate to allow them to participate? That is bizarre. Why not pass this amendment now and save yourself the trouble? I find it a bit hard to believe that the government would rush in here and stand up against some foreign rights holder, when you are quite clearly failing to do that in the primary clause of the bill, and allow EFA, Choice or some other public interest organisation to get into court? Is that what you are suggesting you will do?

Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Link to this | Hansard source

I am advised that the regulations will contain a framework for appropriate representation that should meet the concerns that you are raising.

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

It is interesting, Minister, that you raised the Dallas Buyers Club example. Dallas Buyers Club was fought tooth and nail by iiNet. It was contested. What would have happened if iiNet had simply folded, and handed over their users' information? It certainly would not have found its way into court; it would have been over in a day. That is precisely what we are concerned about here. If iiNet had not stood up and attempted to protect the rights of its users, that would have been over and done with very rapidly. That is precisely what we are talking about in this instance.

I commend these amendments to the Senate.

Sean Edwards (SA, Liberal Party) Share this | Link to this | Hansard source

The question is that amendment numbers (5) and (6) on sheet 7710, moved by Senator Ludlam, be agreed to.

Question negatived.

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

I move:

(9) Schedule 1, item 1, page 5 (after line 7), after paragraph 115A(8)(a), insert:

  (aa) any other person with an interest in whether or not the injunction should be rescinded or varied; or

This is the final Greens amendment to this bill—number (9) on the same sheet. We propose to give a third party the ability to seek a review of a website block. To date, we have been talking about the process of injunction—the process whereby the courts would allow a foreign rights-holder to take a site offline, as far as being visible from within Australia is concerned. With this amendment, we concern ourselves with the consequences once that is done—if an injunction has been granted in error; if legitimate uses have been disrupted; if others come along and discover that the site should not have been knocked out.

It appears, on my reading of the bill, that even if your company has been directly affected by having a website knocked over, you cannot order any kind of review; you cannot order any kind of revocation. Melbourne Free University, for example, was accidentally wiped out by ASIC's clumsy blocking of 250,000 sites under a separate power—section 313 of the Telecommunications Act. They had no rights of review either; I think they actually had to come through us. They ended up having to raise a bit of a fuss in public. They contacted us, and I presume they contacted MPs from other parties as well. That is an appalling process, if your legitimate website has been knocked over by an act of casual incompetence. What are we to do if a rights-holder comes through, seeks an injunction, and it is uncontested; the court lets it get up, and then other legitimate interests have been disrupted or trespassed upon, or people go out of business? Why should they not be able to seek review? And firstly, could the minister confirm that my reading is correct, in that it would not be possible for anybody—a third party—to seek a review if their site has been knocked over?

Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Link to this | Hansard source

I am advised that they can, by making an application through a prescribed person.

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

Minister, do you just want to spell that out for us, or for those playing from outside the building: who would a prescribed person be for the purposes of the operation of this part of the act?

Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Link to this | Hansard source

The Australian Competition and Consumer Commission or the Australian Communications and Media Authority. And, as I have indicated, there will be a framework in the regulations as well—reference the previous comments.

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

Okay. So if a site that you are using for legitimate purposes is knocked over, and you can no longer access it—you cannot access data you might have hosted there, or you cannot access whatever it was that it was doing—and you, the third party, have no interest in infringing copyright whatsoever, and that was not the reason that you were using that site. In order to get that block lifted, you have to persuade the ACCC or the ACMA to what—to bring an application in the Federal Court? How would you go about having that block lifted?

Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Link to this | Hansard source

Yes; or—I am advised—the target site.

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

So that is if you could persuade them—the target site—to bring an action; I am presuming that is what you meant. They would be a prescribed person because of their interests—it is their site that has been knocked out.

Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Link to this | Hansard source

I am advised that they do have an interest.

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

Minister, can you describe for us what people will see when they try to access a site that has been blocked under the terms of this act?

Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Link to this | Hansard source

I am advised that would be a matter for the court.

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

I am hoping you have been misadvised. So is there nothing in the legislation, and will there not be anything in your proposed regulations that would require, for example, a block page to be put up that says, 'This site was found to be infringing copyright; that is why you cannot access it.'?

Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Link to this | Hansard source

I understand that there are comments about this in the explanatory memorandum. Paragraph 43 of the explanatory memorandum states:

The Court would also have the power to order that the parties establish a 'landing page' at the disabled online location to which internet users who attempted to access the disabled online location would be diverted. This landing page could state that the online location has been disabled in accordance with a Federal Court order and detail the terms of that order. The purpose of a landing page would be to ensure that subscribers are informed of the reason that they are unable to access a disabled online location, avoiding the need to contact their CSP for information.

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

Thank you, Minister. What I can take away from that is that it will be up to the court's discretion, and also that it will be on a case-by-case basis. They might decide not to do anything of the sort. Is that the case?

Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Link to this | Hansard source

Yes, that is the case. As we have said earlier, as the court has shown in previous cases, it is perfectly capable of balancing those competing public interests, including those of consumers.

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

Although it helps if you give somebody standing to represent the public interest in these matters.

I commend this final amendment to the chamber.

Sean Edwards (SA, Liberal Party) Share this | Link to this | Hansard source

The question is that amendment (9) on sheet 7710 moved by Senator Ludlam be agreed to.

Question negatived.

Bill agreed to.

Bill reported without amendments; report adopted.