Jonathon Duniam (Tasmania, Liberal Party, Assistant Minister for Forestry and Fisheries) Share this | Link to this | Hansard source

I table the explanatory memoranda relating to the bills and move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

INTELLECTUAL PROPERTY LAWS AMENDMENT (PRODUCTIVITY COMMISSION RESPONSE PART 2 AND OTHER MEASURES) BILL 2019

SECOND READING SPEECH

This Bill is the second piece of legislation that delivers on the Morrison Government's commitment to review and reform our intellectual property system.

The intellectual property system — or IP system — is an important part of the economy. It encourages the development of new technologies, products and markets. In 2016 the Productivity Commission undertook a comprehensive review of Australia's IP system, including copyright, trade marks, patents, designs and plant breeder's rights. We asked the Commission to make recommendations to ensure that the IP system continues to provide incentives for innovation and investment. The IP system should do so without unreasonably impeding competition and access to goods and services.

The Australian Government responded to the Commission's recommendations on 25 August 2017, and within a year the first tranche of reforms received Royal Assent. These changes were supported by the opposition, and updated the trade mark and the plant breeder's rights systems.

This second tranche of reforms updates the patent system. The Productivity Commission stated that its proposed reforms are intended to rebalance the patent system to take more account of the benefits to the broader community and ensure that all Australians benefit from the system.

These reforms have been complex to develop, so the government has taken additional time to consult extensively, giving stakeholders several opportunities to provide feedback and express their views. The government has listened and is confident that the amendments strike the right balance between the needs of inventors, users of technology and the general public.

Schedule one to this Bill will amend the Patents Act. It gives effect to the recommendations made by the Commission, by introducing a statement of the objectives of the Patents Act and phasing out Australia's second-tier patent.

Part one introduces an objects clause into the Patents Act. The objects clause provides a general statement of principle about the purpose of the Act. This will make it clear what Australians want from their patent system, specifically a system that promotes economic wellbeing through technological innovation and the transfer and dissemination of technology. This will ensure that the patent system remains adaptable and fit-for-purpose as new technologies are developed in the future.

Part two begins the phasing out of the innovation patent system. This second-tier patent was intended to incentivise small to medium-sized Australian businesses to invest in research when it was introduced in 2001.

However, in the 18 years since then, it has become clear that the second-tier patent has been more harmful than helpful for SMEs. There is widespread agreement among stakeholders that the system is not fit-for-purpose. Some people argue that the second-tier patent should be reformed, but there is no agreement on a workable alternative.

Both the Productivity Commission and the former Advisory Council on IP recommended that the innovation patent system be abolished. Both found there is no evidence that the second-tier patent stimulates innovation or research in Australia. What it does do, according to both bodies, is lead to uncertainty, confusion and a higher regulatory burden, particularly for our Australian SMEs.

The Bill will amend the Patents Act to prevent the filing of new applications for innovation patents. The amendments ensure that existing rights, filed before commencement, are maintained and protected, ensuring a balanced phasing out.

Schedules two, three and four implement recommendations made by the Commission in its 2013 report into the compulsory licensing of patents. These changes will improve the balance between the rights of IP owners and the interests of the public, bringing greater clarity and certainty to the legislation.

Schedule two improves the transparency and accountability for Crown use of patented technology. There is some uncertainty about when Crown use can be invoked at the present, and this Bill makes it clear that while it is rarely used, it can be invoked when any Australian Federal, State or Territory government has the primary responsibility for providing or funding a service. This ensures that Crown use can cover the full range of services that the public expects our Government to provide.

Schedule two also protects the rights of patent holders, by improving accountability for Crown use as well as providing more guidance for determining the remuneration to be paid to the patent owner. Government agencies will be required to seek to negotiate with the patent owner and to obtain the authorisation of the relevant Minister before invoking Crown use. At the Commonwealth level, the relevant Minister is the Minister responsible for administering the Patents Act, and at the State and Territory level, it is the Attorney-General. This will ensure that Crown use is only used in appropriate circumstances.

Schedule three will make the same amendments to the Crown use provisions in the Designs Act. Crown use will then operate in the same way for both patents and designs.

Schedule four improves the clarity and certainty for compulsory licensing of patents. It requires the courts to consider whether it is in the public interest to grant a compulsory licence. There was concern that the previous test had the potential to protect the interests of a particular industry, at a net cost to the broader community. The new test will ensure that compulsory licences are only granted when there will be an overall net benefit to the Australian community.

Schedule four will also clarify the process for compulsory licensing of inventions that build and improve on a previous patent.

The remaining schedules to the Bill make minor technical amendments that will streamline procedures and improve the efficiency of the IP system, ensuring the system is fit for purpose and keeps up with today's accelerated pace of technological change.

I am very pleased to introduce this Bill, which builds on a broad consultation and enhances Australia's IP system, supporting innovation, creativity and business growth in this country.

TERTIARY EDUCATION QUALITY AND STANDARDS AGENCY AMENDMENT BILL 2019

SECOND READING SPEECH

The Tertiary Education Quality and Standards Agency Amendment Bill 2019 amends the Tertiary Education Quality and Standards Agency Act 2011 (TEQSA Act) to give effect to the Government's decision to implement recommendations arising from the Review of the impact of the TEQSA Act on the higher education sector.

This review was conducted in line with section 203 of the TEQSA Act, which required that the Minister, before 1 January 2016, cause a review to be started of the impact on the higher education sector of the TEQSA Act.

In December 2015, terms of reference for the review were determined, with Deloitte Access Economics engaged to undertake the review between July 2016 and March 2017. The review was a substantial body of work: 36 written submissions were received, 33 stakeholders were interviewed, and the TEQSA Act was extensively analysed.

Overall, the review was positive about the establishment of TEQSA as the national regulator in 2012, noting that the TEQSA Act is broadly operating effectively and as intended.

The review noted that the higher education sector's views regarding the regulatory system established by the Act, and TEQSA as the regulator, are positive.

The sector sees in TEQSA a regulator that is seeking to reduce the burden imposed by its activities, tailoring its requirements to meet individual features of providers and engaging more fully with the sector. The review therefore did not recommend changes that would significantly alter the regulatory framework or the role of TEQSA as the independent national higher education regulator.

The recommendations made by the review are largely technical in nature. They are designed to place TEQSA and the regulatory and quality assurance system established by the act on a stronger footing. This Bill gives effect to the review recommendations that require amendments to the TEQSA Act.

The measures contained in this Bill will improve the already effective and efficient higher education regulatory system, enabling the sector to continue its focus on delivering the highest quality teaching, learning and research, maximising the quality of educational outcomes for students and protecting Australia's international higher education reputation.

The Bill simplifies the legislative framing of the Higher Education Standards Framework by removing references from the TEQSA Act to specific categories of non-threshold standards that have never been made and are not needed. The capacity to make additional standards will be retained, however, if the need ever arises.

The Bill requires that TEQSA inform the minister and the Higher Education

Standards Panel before it undertakes quality assessment under section 60 of the TEQSA Act that engages the majority of higher education providers. This will ensure that the resource implications of any such activity and the regulatory burden it would create for providers are appropriately considered before undertaking such an assessment. This amendment will remove the need for the current tougher restriction placed on such assessments by Ministerial Direction No. 2 of 2013, which the Government will repeal once the TEQSA Amendment Act commences.

There are amendments made in relation to the Higher Education Standards Panel. The Bill will expand the skill set that the minister must ensure is encompassed by panel members so that, collectively, the panel has contemporary experience in the provision of higher education by both university and non-university providers. This amendment is important for the panel's oversight and advisory roles, ensuring its advice is balanced and reflects a collective understanding of issues relevant to different provider types.

The Bill also expands the functions of the panel to more appropriately reflect its role to provide oversight of TEQSA's strategic and operational planning and approaches to deregulation, which were functions of the former TEQSA Advisory Council.

A new provision will allow TEQSA to disclose higher education information about a regulated entity to a person who has lodged a complaint where TEQSA is satisfied that the information to be disclosed relates to the subject matter of the complaint. Currently TEQSA can publish such information but cannot disclose the information to individual complainant students. This amendment will improve TEQSA's capacity to respond appropriately to complainants, facilitating better engagement between TEQSA and students of higher education providers.

Finally, the Bill provides for a number of technical amendments, mainly suggested by TEQSA during the review, including minor adjustments to the capacity to disclose both higher education and personal information to the Department of Education and the Minister, to facilitate the disclosure of information for research purposes with appropriate safeguards and to clarify quorum provisions for meetings of the TEQSA commissioners.

NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT (STREAMLINED GOVERNANCE) BILL 2019

SECOND READING SPEECH

This Bill amends the National Disability Insurance Scheme Act 2013 to introduce streamlined governance arrangements that will simplify rule-making and decision-making under the NDIS Act.

The Bill makes important provisions that will give the Commonwealth Minister responsible for the National Disability Insurance Scheme (NDIS) increased certainty about timing of decisions under the Act requiring state and territory agreement, including appointments and terminations to the Board of the National Disability Insurance Agency (NDIA) and the NDIS Independent Advisory Council, and the making or amending of some NDIS Rules. The Bill also ensures the states and territories will continue to have an essential and strong role in the stewardship of the Scheme.

These administrative amendments will ensure the governance arrangements that underpin the NDIS are efficient and effective, building on the recommendations from an independent review of the Act in 2015, the Productivity Commission inquiry into NDIS costs in 2017 and intergovernmental agreements supported by the Council of Australian Governments (COAG).

The NDIS is one of the largest social and economic policy reforms in Australia's history.

Difficulties with the current governance arrangements have been consistently The Scheme is continuing to grow at a rapid pace as it rolls out across the country. Over 300,000 Australians are currently receiving support through the NDIS and around 100,000 of these people are receiving support for the very first time. The vision of the NDIS, to enable every Australian with a significant and permanent disability to access the reasonable and necessary support they need to participate fully in their communities, is progressively being realised.

Since 1 July 2019, the NDIS has been available across the continent. The Scheme will continue to grow at a rapid pace over the next few years — with around 500,000 participants estimated to benefit from the NDIS over the next five years.

This government has been fully committed to the NDIS from day one. We are bringing forward this Bill to establish streamlined governance arrangements to ensure the governance structure that underpins the NDIS is effective, efficient and adaptive.

The NDIS is a significantly complex reform, with governance shared between the Commonwealth and state and territory governments. The current NDIS governance structure includes a legislative framework, the NDIA Board, the NDIS Independent Advisory Council and the COAG Disability Reform Council (DRC). Each body plays an important role in assuring that the NDIS remains true to its objectives.

Under current legislative and governance settings, the states and territories have significant roles and responsibilities in NDIS policy and funding arrangements. Setting and amending NDIS Rules, the giving of directions to the CEO and NDIA Board as well as making appointments and terminations, generally requires unanimous agreement from all jurisdictions. This has resulted in a governance structure that is complex, with decision-making processes being more time-consuming and less efficient than required for such a significant reform.

identified during the NDIS trial and transition periods. Past experience of the requirement to obtain unanimous agreement from all states and territories has meant NDIS Rules, or amendment to Rules, which have agreement at the officials' level, have taken up to ten months to be formally agreed before they could be registered.

Unnecessary delays in decision-making was recognised as a critical issue by the Productivity Commission in its 2017 Review of NDIS Costs. In the PC's final report, handed down in October 2017, while acknowledging the complexity of shared governance arrangements and the valuable knowledge and expertise of all governments for designing and refining the Scheme, the PC concluded that ­"such timeframes for decision making could pose significant operational difficulties for the NDIA ".

The shared governance arrangement requiring unanimous agreement from states and territories to progress a large range of critical issues is indeed cumbersome and complicated. This reduces the Commonwealth's ability to respond rapidly and flexibly to emerging issues.

This government, along with states and territories, has therefore reached the view that better arrangements are required as the NDIS approaches full scheme. Changes will improve the effectiveness of governance arrangements to provide an agile and responsive legislative environment.

This is good news for Australians living with significant and permanent disability, their families and carers who are set to benefit from the NDIS. These changes will simplify what is a complicated and inefficient system of decision-making.

The changes proposed by this government include introducing a 28 day consultation process with state and territory disability ministers on matters under the NDIS Act that require agreement. If they do not respond after 28 days, they will be taken to have agreed. All state and territory disability ministers have been consulted and have been voluntarily following the 28 day convention since November 2017. Formalising this commitment in law provides the right incentives for all governments to manage the NDIS efficiently.

The changes proposed by this government also establish arrangements for the Commonwealth Minister to be able to appoint members to the NDIA Board based on majority agreement of the states and territories, instead of under the current requirement for unanimous agreement.

The NDIA Board is responsible for overseeing the implementation of the NDIS and its long-term sustainability. The Board manages the financial and delivery risk of the scheme, including maintaining an actuarial and insurance approach to decision making. The Board develops the NDIA's business strategies, manages risks to the organisation and the NDIS, and through its Chief Executive Officer, handles the day-to-day management of the NDIA.

The NDIA Board is a national board, not a representative board. Members are appointed to the Board if they have the right skills and expertise to carefully mange the significant scale, cost and potential risk in delivering the NDIS ­without regard to where they live.

Allowing the Minister to appoint Board members based on majority agreement will ensure that the best and majority supported candidates are appointed in instances where there is not unanimous agreement.

The changes proposed by this government also establish arrangements for the Commonwealth Minister to be able to appoint members to the NDIS Independent Advisory Council, based on consultation with states and territories.

The function of the Advisory Council is to provide the Board with independent advice, which the Board must consider when performing its duties, having regard to the role of families, carers and other significant persons in the lives of people with disability.

And finally, the changes proposed by this government also establish new arrangements for consultation with states and territories relating to any proposed changes to some NDIS rules — namely, those Rules that relate to the payment of NDIS amounts and the NDIA CEO's power to disclose information. These are consequential amendments that will have no impact on the Scheme's purpose or design, people's access to the NDIS, the determination of participant's reasonable and necessary supports, or the content of their plans.

The NDIS, and its beneficiaries, deserve the best and most efficient governance arrangements possible. The changes proposed in this Bill will help us deliver this world-leading reform.

The Morrison Government is committed to working with states and territories and the NDIA to deliver a fully funded, high quality NDIS. This bill represents a significant step forward, cutting red tape, and ensuring governance arrangements for the NDIS enable responsive delivery and agile decision-making as we move into full Scheme.

I commend this Bill to the Senate.

Ordered that further consideration of the second reading of these bills be adjourned to the first sitting day of the next period of sittings, in accordance with standing order 111(6).

Ordered that the bills be listed on the Notice Paper as separate orders of the day.