Senator COONEY (11:58 AM) —The Intellectual Property Laws Amendment Bill 1998 does a number of things. As Senator Brown discussed, it does things to patents relating to pharmaceutical substances. That has been dealt with. Senator Lundy, who is leading the opposition's argument in this matter, has discussed that and will discuss it further.

I want to make some remarks about schedule 2 to the bill, which talks about patent attorneys and trade marks attorneys, and the changes that have been made in that respect. In that regard, I go to the second reading speech of the Minister for Customs and Consumer Affairs, Mr Truss. On the third page of the second reading speech, this paragraph appears:

The bill proposes that the existing partnership arrangements for patent attorneys should be relaxed to improve the public's access to the professions by encouraging a broadening of the competitive base within the patent attorney profession. The proposed system will allow mixed partnerships with other professions where at least one member of the partnership is a registered patent attorney. However, patent attorney partners will still be required to prepare patent specifications.

I want to talk about this concept that somehow competition will make the profession better than it was. I am not against competition—it is proper and right that professions should be made as productive, as good and as dedicated as possible—but whether or not those forces of competition are the way to do it is another matter. There is a concept in the community that says that, if you apply competition to the professions, things will become better by that factor alone, as if competition itself will produce the sorts of professions that we need.

There is a danger in that concept. The old idea of professions was that people did the work or did a job because there was pride to be had in doing that job; that there was an ethic, a tradition, that upheld the way it was done and that the job should be done well because of those things. That idea seems to be disappearing. The Hon. Sir Daryl Dawson, who was a Justice of the High Court, had something to say about this matter in September 1995 in the context of the legal profession. I would like to quote from his speech because it illustrates what I am saying:

One aspect of social trustee professionalism was a large degree of self-regulation by the profession itself. This was not only because it was the practitioners of the profession who alone possessed the knowledge necessary to ensure the maintenance of proper standards but also because it was they who, above all others, could be trusted to apply the appropriate discipline for the purpose.

I want to emphasise the next passage. It says:

With the change from the notion of a trust to that of a marketing exercise, reliance is placed upon market forces to produce services of the required standard. And because governments understand competition and the mechanisms necessary to ensure its existence, self-regulation is no longer seen as adequate and, indeed, is seen as inconsistent with a competitive environment.

He goes on to say:

There is an obvious tension between trust and competition which is reflected in an evident desire to remove from the professions, particularly the legal profession—

because that is what he is talking about at that stage—

the capacity to regulate their own activities and to introduce a greater degree of public control. It is the free play of market forces, not the voluntary maintenance of professional standards, in which we now place our faith and in this regard there is little distinction to be drawn between the practice of a profession and any other form of commercial activity.

It is this concept that is introduced by this legislation. Indeed, there are changes made through this legislation to the Patents Act, the Trade Marks Act, the Designs Act and the Copyright Act—those acts which deal with intellectual property.

There is a shift brought about by this legislation in the concept of how those people who help others with their problems—problems with trademarks, designs, copyrights and patents—carry out their task. There is a shift in the spirit, in the soul, of what is brought to the carrying out of an attorney's task. The point that His Honour made is that when this shift takes place—the shift from a reliance on dedication to the profession to a situation where competition is the force—there is a shift at the same time to greater regulation. That is, of course, illustrated in this legislation by section 227A, which talks about a `Professional Standards Board for Patent and Trade Marks Attorneys'. It is interesting to look at this particular section. It says:

(1) The Professional Standards Board for Patent and Trade Marks Attorneys is established

It deals with the functions that that board is to perform. It says nothing about the constitution and membership of the Professional Standards Board, but the regulations make provisions in relation to that.

So not only is there a shift in the presumptions that go behind what makes a profession but also when that shift occurs it is not brought into parliament but is sent off to be decided by whoever makes the relevant regulations in the terms of this bill. The point I want to make is that this bill is a very significant change to the way this community is to go about providing people to help those who want to properly register the products of their minds so that they can benefit from them.

I was reading earlier a speech by Sir Winston Churchill. That is going back a long way and the Acting Deputy President, Senator Watson, and I are perhaps amongst the few people in this chamber who can remember those speeches. In July 1941 when the war was going on, in relation to production and people who were doing work, he said:

They must have the power and authority to do their work, and be able to take a proper pride in it when it is done, and to be held accountable for it if it is not done.

That sense of pride in your work—what was good about your work was not that you were going to make a great profit out of it but that you were going to have pride in it—seems to have disappeared and this legislation goes a long way to endorsing this new idea of competition efficiencies and market forces. Those concepts are good in themselves, but not when they are isolated and applied on their own and when they do not take into account the other great driving forces such as pride in your work, such as wanting to do a job because there is a great tradition of doing that job well and such as having a commitment to your client. Those concepts certainly do not appear in this legislation. When the second reading speech is looked at, those concepts do not appear to be much in contemplation there either. For example, the second reading speech says:

The government has been concerned to ensure that the profession continues to offer a high quality service while being subject to competitive pressures.

I think, unconsciously, there is an admission in that that competitive pressures, competitive forces, do not necessarily mean that you are going to have a high quality service. The second reading speech goes on:

It wishes to ensure there are no undue barriers to competition in professional practice that might adversely affect the public interest.

So the legislation allows practices to set up with only one patent attorney. An entity, no matter how many people are in it, can do the jobs and work that used to be done only by patent attorneys as long as it has one patent attorney in it. So in the name of competition, in the name of making things less costly, the sort of people who do the work do not have to be qualified to the extent that they used to be. There is a concept that somehow, if you can do it more cheaply, you are going to do it better—a proposition that just is not correct.

In case people think I am looking to the past and saying the past is best, I quote Sir Daryl Dawson in his speech in September of 1995, where he said:

As I have said, one should try to avoid nostalgia in attempting to assess the changed nature of the legal profession. There are good reasons for regarding those changes which have taken place, and those which are likely to take place, as improving the accessibility, efficiency and cost of legal services—

Or, if I could interpolate in this context, `patent attorney services or services as far as designs or trademarks go'. His Honour continued:

Nor do the changes necessarily mean a decrease in the financial returns from the practice of the law. According to a recent press report, the Australian Bureau of Statistics has revealed that solicitors' practices have doubled their pre-tax operating profit over a five year period from about $825,000 to more than $1.6 m. and legal services have boosted their gross legal income by 67 per cent.

So he is saying there that a lot of these changes, far from producing fewer returns for the lawyers in this case, are returning more. If you look at this legislation where not exactly the same but similar strategies have been undertaken, is this going to lessen the cost? Is this going to lessen the return to those people who carry out work with designs, copyright, patents and trademarks?

I think there is some considerable concern to be had about the matters produced by schedule 2 of this legislation. I notice that with proposed section 198 in the bill there is now going to be a register of patent attorneys and it is to be kept by a designated manager. Then there is a provision as to how the designated manager is to be appointed. That seems to show that, when we talk about freeing up the market and allowing market forces to apply, it is often a misnomer, a wrong concept, because, by the very fact of freeing the market up and by allowing all sorts of people who are not qualified to do the work that those who were qualified used to do, you allow more people to do it but you tighten up on the market. You have to regulate the market more.

If I can anticipate a debate, it is the same sort of thing with Telstra. As soon as you privatise that and open that up to market forces, it does not free it up because you have to have a whole list of regulations and laws to ensure that the work which in the case of Telstra was carried out in the country before without any regulations is done. It is a very strange affair and something we have to look at with the present trends that we take in the professions, business and generally about freeing up the market. What does it really mean? It means opening up a lot of work to be done by those who are not as well qualified as those who used to do it, to enable them to do it. Because we get worried about what follows on from that, we then put up a new regime of regulations, which means that there is a lot more regulation—and that is done by legislative provisions—than there was before.

I have some particular concerns about schedule 2. It is a great illustration of the sorts of issues associated with His Honour, Sir Daryl Dawson, who was regarded—as you may well remember, Mr Acting Deputy President—as a very conservative judge; he was often in the minority on things. He was the sort of judge that the minister presently in the chamber would have high regard for.

Senator Parer —He didn't filibuster.

Senator COONEY —I am a bit concerned that Senator Parer says this is a filibuster, because I am talking about the sorts of issues that we ought to be looking at. I think that simply a desire for more money or more profit is not the sole basis for going ahead in these areas; it would be a pity if that were the case. In spite of Senator Parer's interjection, I am sure he does not believe in that.

I hope that the regime that goes ahead to control those who give services to those interested in obtaining trademarks, patents, design rights or copyrights means that they are better served in the future than perhaps is possible, given the basis that this act is going to present for them to perform.