Mr CADMAN (10:07 AM) —I thank my colleague opposite, the member for Bonython, for his precise remarks with regard to the opposition's support for the change in trademarks envisaged by the Trade Marks Amendment (Madrid Protocol) Bill 2000.

I would like to spend a little time looking at the development of the Madrid protocol, because I think it is of more than passing interest how Australia and the rest of the world have acceded to the process of, first of all, the Madrid agreement, and then the protocol. The agreement was established in Europe over 100 years ago to enable small groups of countries to have common laws with regard to trademarks and recognition, and certain protocols of arrangements and agreements between them relating to trade and recognition of each other's companies and signs. That has, for some time, proved to be adequate for those countries but, with the development of the Economic Community in Europe, there has been a growing interest in belonging to a set of nations which have a common recognition of trademarks, and so the protocol developed from that.

Either the protocol or the agreement has undergone changes over a period of time to accommodate the countries which were not part of the central Europe agreement. Of course, there were nations that were not members and, as the European community and the Economic Community extended, there came a greater interest from countries outside the immediate area. Some of the countries which expressed interest and which have in fact joined but for whom modification had to be made include the United Kingdom, Finland, Norway, Iceland, Sweden, Denmark, Lithuania and, now, Japan. So we have a gathering of world interest in a unified approach to trademarks. Why is there this interest? The process of registration of trademarks is usually a one-to-one arrangement, where, for an example, an Australian firm having registered its trademark here—be it Vegemite or something like that—would want to register it in some other country enthusiastic for Australia's notorious and notable products. So the makers of Vegemite would go to Lithuania, Britain or the Unites States—if people in those countries could be convinced to eat Vegemite—and would want to register the trademark there.

The one-to-one process was tedious, with the Australian manufacturer being required to meet the trademark laws of each country separately. It was a tedious process, an expensive process in some instances and one which delayed the opportunity for Australian companies to enter the market. Often, of course, there was the opportunity for companies within a target export country to get wind of a proposed application for trademark recognition and to jump in ahead of the proposed applicants, thereby gathering in for themselves some advantage in the marketplace.

So there are a number of reasons why there has been growing interest in a universal protocol to which all nations can agree, and to provide an easy registration process—a simpler registration process—whereby a company can go to one place, make the registration and then allow the register holders to file the applications in the various countries in which they are seeking registration. They would not necessarily want to blanket the lot; they would want to register their trademark in a number of selected countries where there would be prospects for trade.

The use of the protocol has extended and gathered in more and more nations, but at the same time there has been a resistance from some of those central European countries to changing something they see as particularly theirs. The attitude was: why should we change because the Americans, the Australians, the Canadians, the Japanese or anybody else want to become part of our process of registration of trademarks? That is a natural protective process.

On the other hand, countries wishing to join in the Madrid protocol could not really see how all the conditions could easily apply to them. Therefore, until recently the United States has been reluctant to participate. It was only in February of this year that I had it drawn to my attention that the patents office in the United States—I think it is called the United States Patent and Trademark Office, the USPTO—has in fact looked at this issue and has a planned approach for the United States to enter into the protocol possibly in 2001.

I notice that, in a recent visit to Europe, the President of the United States made announcements that he would be pursuing these matters. He in fact made the announcement that the USA would become part of the protocol. I have at hand a fact sheet dated 31 May issued by the President's office which states:

The US sees great advantage in entering into these arrangements. The US and the EU have agreed on protocol provisions for a fair and equitable voting formula, because the voting formula is loaded against a country making entry. One of the things the United States complained about was that all the countries of Europe have their independent separate vote and then they have another vote as Europe as a whole. So the dice is somewhat loaded, in a voting sense, against outsiders. I notice the President claims that those matters have been resolved and will satisfy American business.

Mr CADMAN —My colleague opposite is a bit more sceptical about this process than the President appears to be in his final year of office. The statement by the President says—and I think the same thing has been quoted here by Australian sources—that savings can amount to 67 per cent of total fees if the centralised process is used. The statement by the President goes on to say that filing 10 separate applications would cost at least $14,000 and that under the protocol the total cost could be reduced to $4,700. The claim is that we will have reduced waiting periods and that it will be a much more efficient system. The President, I note, puts this tag on his statement:

It is very interesting that the President is out in front on this issue and that the Senate may have a different view. Senates do have different views from time to time.

The chief information officer of the United States Patent and Trademark Office has supported and complemented the comments by the United States. Why would I follow what the USA is doing in this regard? I think it is very interesting when we compare it with a British type rule of law system. The United Kingdom has also had some reservations about the Madrid protocol. We have got a different type of system of law—the common law process—as compared with Europe. I am just wondering how nations similar to Australia might be approaching the entry into an international treaty that can capture the intellectual capital of many of our Australian producers. It is no wonder, with the huge number of companies and the great activity of the trademarks office in the United States, that those people—Bill Gates being one of them, I suspect—will want to make sure that their trademarks and all of the procedures necessary for them to trade are going to be properly protected. The US administration no doubt has a similar interest but, according to reports, seems to have covered it.

It is fascinating to read about the activities of the United Nations because the agency is now a United Nations agency and it is called WIPO. I searched for ages to find out what WIPO stands for. It is World Intellectual Property Organisation and WIPO is the central European agency for trademark ownership. It is an interesting outfit. I notice that at one stage, in 1995, WIPO employed 474 people and their salaries, according to sources in the United States, averaged well over $US100,000 each. So they are extremely well-placed, French-speaking bureaucrats in Geneva, operated by the United Nations.

I think that they may have cleaned up their outfit a bit to accommodate the American entry into the protocol but, in 1996, the head of WIPO, Dr Bogsch, and the assistant director general, Carlos Fernandez Ballesteros, flew to Abuja in Nigeria to personally present WIPO's gold medal to the Nigerian President, General Sadi Abacha. He had never in his life shown an interest in trademarks, but they thought it was good to give him a gold medal. They have done that a couple of times. That makes you wonder whether the politics of the UN is interfering with the operation of trademarks. That is something I would strongly resent and resist from an Australian perspective. I would be worried about that approach. I trust that the thriving trade in counterfeit goods in Nigeria and these letters that we get from characters who offer to invest our funds for us if we give them access to our bank accounts are no longer endorsed by WIPO. If WIPO continues to give gold medals to people whose standards are at that level, then the trademarks of Australia or the United States will not be secure in this organisation.

I raise that as a matter for consideration by the government. Maybe people within the Australian Senate in this instance will also give their attention to a searching examination of precisely where Australia is going in regard to these things. The objective is excellent. I have got a problem with the process, but no problem with the objective. The objective is a great objective: to simplify and to cut costs and to make sure that Australia has sure, safe, secure access to markets where their trademarks are going to be properly protected in a simplified approach. I think it is a laudable objective and one that I notice is endorsed by the administration of the United States.

I turn to the legislation—and I want to have a good look at this matter. I did not really want to get into this debate, Mr Deputy Speaker Nehl, but you know what Whips are like: they sometimes say, `You need to do this thing.' Having been involved in this debate, I was absolutely appalled by what I found. So I have had a look at our legislation. I trust that the member opposite has had a look at the legislation. Three simple clauses form the basis of the bill. The first one relates to the title and the second one relates to the commencement date of the bill. I will read from the explanatory memorandum in relation to the third clause:

There is nothing in the act. It says that the schedules are the things that count. What is the basis of the law in this matter? It seems to me that, almost by a process of delegated law through regulation, we are passing legislation which slings Australia into a protocol that will affect our trademarks. I am not sufficiently versed in the minute detail of parliamentary drafting or legal processes, but I would have thought that, if this protocol was worth adopting, it should not just be done by saying, `Look at the schedule or regulations to find out what this bill is about.' That seems to mean that any changes in those regulations from time to time will automatically change Australia's trademark laws. The logic of that is irrefutable. If we lock ourselves into a protocol by way of regulation, a change in that protocol, which is the basis of the regulations, will automatically change the act. I would like to see that matter tidied up or sorted out.

With respect to the various items contained in schedule 1—and this has been pointed out to me by trademark lawyers who are far more skilled and knowledgeable than I—one can look at items 5 to 13. The items draw attention to what is set out in the schedule: `Look at the schedule if you want information.' There are nine or 10 items in the schedule which say that. In addition, item 14, which relates to part 17, basically says, `Well, the Governor-General has got these powers to draft the regulations.' Section 189A(3) states that the regulations may be inconsistent with the act and may prevail over the act. That is even worse. If there is an inconsistency between the protocol and Australian law, the protocol overrides Australian law, whatever the protocol may happen to be at the time. I think this is an easy way of drafting, but I do not know whether it is a very nice way of having Australian trademark laws successfully implement the intention that Australians would want.

The explanatory memorandum refers to item 18, which deals with the regulation making power of the Governor-General. It states that the amendment is done in a way to avoid adding an unnecessary level of complexity to the act. It states:

One line in the act? For goodness sake, that is absolute clarity! This amending piece of legislation contains one line. Surely to goodness, Mr Deputy Speaker, you and I have seen the Senate and the House debate complex matters for days when we have wanted to see a proper process put in place. I find this approach unacceptable. Without having the benefit of a parliamentary committee to examine the details or take evidence from witnesses from industry, from lawyers skilled in this area and from those public servants who drafted the legal advice that the government has received, it is not possible to come to a finite opinion.

I raise these matters today and restate my opinion that the objective is absolutely laudable and commendable, and I support it. I think it is something which will benefit Australia. However, with respect to the process of getting there, I have been alerted to the concerns in the United States about this process. They do not want to pass over their sovereignty either. When I look at the Australian process that we have adopted in this bill, I wonder whether we have passed over our sovereignty, having regard to the mechanism that we have used. If Bill Clinton can take his time and have his people look at it, I believe that we should also take our time and look at it. I would like to see a reasonable inquiry. I would like to see us sign this protocol and get on with the job as quickly as possible. That is my goal. But I would like to see it done with some more certainty than I can detect in the bill that is before the House.