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Monday, 22 June 2015
Page: 4021


Senator LUDLAM (Western AustraliaCo-Deputy Leader of the Australian Greens) (12:38): It is with no pleasure that I rise today to address the Copyright Amendment (Online Infringement) Bill 2015, hot on the heels of a Labor opposition that appear to be doing nothing more than going through the motions and are no longer even really deserving of the name. This is a bill that is at once lazy and dangerous. I will go into my reasons for believing those things. It is lazy because, as Senator Collins has quite rightly pointed out, since November 2013 the Australian government has had in its hands the Australian Law Reform Commission's report from quite a broad ranging inquiry into how to update our antiquated copyright regime for the 21st century. Not only has it done nothing to address those quite sensible and far-reaching recommendations, it has cherry picked an element that was not even canvassed in the report and brought that forward because it gives it the impression of having done something and it directly answers to its cashed-up donors and lobbyists, which, we are well aware, is how this government works. So it is lazy from a policy point of view and it is also lazy politics.

It is dangerous because it does create the architecture of a second internet filter in this country. Senator Collins referred to it a couple times as modest. Perhaps it is a modest little filter, but from little things big things grow. This is not the kind of growth that we would be supporting. In a moment I will go into a bit of detail about the current state of play with site-blocking regimes in this country. But, just for some context, on 17 June the Electronic Frontier Foundation, in the United States, which is a leading advocacy organisation for digital rights in the US, pointed out—and this is in the submission to this bill that the EFF put up—the following:

As a bill purportedly meant to address copyright infringement, it is inevitably ineffective and offers little benefit. However its detriment is very clear, in that it further legitimizes the practice of website blocking. This will make it more difficult for Australia to take a stand against these practices when practised by authoritarian countries, and to resist pressure from domestic special interest groups to block more and more categories of content that they may find offensive or undesirable.

Does anybody here in this debate, whatever side of it you may be on—whether it is the stale bipartisan consensus down at the other end of the table or if it is up at this end—seriously believe that this scheme will not be expanded in the future to cover more categories of content? Of course it will. It has scope creep absolutely built into it. It is lazy and it is dangerous.

Those who follow technology policy in this country might recall a forum that was held by the member for Wentworth, Mr Turnbull, in August 2010. At that time the coalition, after the Greens and others had been campaigning for nearly 3 years, had finally got on board with blocking Senator Stephen Conroy's much maligned internet filter. They had finally been persuaded by the strength and breadth of the campaign against the internet filter that they were going to oppose it. Of course, that then lets their opposition spokespeople off the leash to be able to say that of course they thought that way all along. I was not at this forum, but it was quite well written up. At the Paddington RSL in August 2010 then opposition spokesperson Turnbull, in quite a jovial mood, said of the Labor Party's filer scheme:

It's dead, buried and cremated, and if it shows any signs of revival it will then be exorcised

He said that filtering is an idea that should have been 'put-down long ago' because:

It was simply not workable. It was a really bad idea that could only have come from people that didn't actually understand the internet.

That, I guess, is the kind of hypocrisy that tends to infect a debate such as this. From opposition, you can be against it, once you have finally been persuaded by the strength of actual opposition in the community and amongst advocacy groups. But, from government, here it comes.

There was also the rather extraordinary debacle of an announcement in 2013 of this government's filter. I think that lasted about four hours before it was knocked over. Mr Fletcher was involved and there was some potential involvement of Mr Abbott. It appeared that Minister Turnbull was either blindsided, or simply had not read the briefing materials that were put to him, when the opposition actually launched an internet filter proposal right before the election. Within about four hours it was dead. They had backflipped and it was gone. It is the kind of thing that nobody in their right mind announces in the run-up to an election campaign, but the government, knowing that the opposition is basically AWOL, feels reasonably confident that it can introduce a measure such as this.

As I said at the outset, the government is setting in place not one but two filtering schemes and both—in very different ways, actually—are very interesting case studies of how not to regulate the internet. In the ashes of Senator Conroy's mandatory internet filter, where sites would be blocked against a rather poorly defined blacklist of websites, Senator Conroy came up with another rather remarkable and expansive interpretation of section 313 of the Telecommunications Act. Basically, the interpretation was broadened to imply, quite directly, that the government agency under that section of the act could fax—and apparently they do still use faxes, so who knew?—a telecommunications company ordering them to block from viewing within Australia a site that they believe has content that is breaching the law. A House of Representatives inquiry set up by Minister Turnbull to look into that scheme recently rubber-stamped the practice and said that at some point somebody should get around to coming up with some guidelines. In the meantime, that House of Reps inquiry thought that it was fine that an unregulated internet filter, that an unknown number of government agencies, could simply fax service providers and tell them to wipe out sites for a variety of different reasons. So at least the regime that we are dealing with today provides for court orders—we will get to them in a moment.

The law of unintended consequences already hit the section 313 filtering set-up pretty hard. ASIC already used it to accidentally wipe out about a quarter of a million named sites—not all of them active; in fact, as I understand it, the majority of them were simply parked. But just through a simple misunderstanding of how the technology works, a quarter of a million sites were wiped out. Because the system is basically unregulated, there is no right of reply. There is nobody that you can call. The operators of one of the sites in question wiped out by ASIC's enormous overblocking attempt ended up having to come to parliament to find out where their website had gone and why it could not be served within Australia anymore. From the way that this bill is written, it is clear that the government simply does not understand the technology or perhaps, more likely, just does not care.

The second filter that we are legislating today that the Greens will be opposing is not going to be used by the government to block whatever website it wants—and that is a very, very important difference. It will, instead, be used by copyright holders and rights holders to block whatever website they want. Let's go through a few of its failings more directly. During the inquiry into the bill, major companies, including Amcom, iiNet and Google—and even some of the bill's supporters—emphasised that blocking websites will not stop people from accessing content. Amcom and iiNet both put in their submissions that site blocking is unlikely to be an effective way of dealing with online copyright infringement. Google said:

There is increasing evidence to suggest that site-blocking is not the most effective means of stopping piracy.

They did not leave it there, obviously, because there are a lot of good ideas on the table about how to stop piracy. If people are determined to pirate content, it is very difficult to stop them. There are dozens of ways of getting around a website being blocked, ranging from using a virtual private network—or a VPN—to using one of many streaming apps or websites, or just getting hold of the files on a USB stick and running them from there. Choice noted in its bill inquiry submission that circumventing a website block is not very difficult.

The only effective way to deal with copyright infringement on the kind of scale that the government is concerned about is to just make it available: conveniently, affordably and in a timely way. The distribution model—where you could sit on your 20th century distribution bottleneck, put a property up on screen and then wait for two months and do the TV release, and then wait another two month and release it on DVD—is broken. That model worked before the internet existed. Rather than coming up to speed with that fact and offering content in a timely, convenient and cost-effective way, the rights holders—who have collectively donated around $4 million to those parties who are today championing their cause—have called on the government to legislate. They finally found a pushover of an Attorney-General and an opposition too weak to be bothered to turn up to the fight.

We know this, because the House inquiry into IT prices in Australia identified ways of wiping out copyright infringement as being quite simple: just make the content available and then people will use the appropriate channels. The House inquiry into IT prices looked into the so-called Australia tax where content providers, software developers and others treat Australia as an island market where they can charge much higher prices and release stuff much later. When that falls down and people then take the step of infringing copyright, these very same interest groups, having written out their cheques to the Labor Party and the Liberal Party, come in expecting legislation for their benefit.

That inquiry recommended, for example, that consumers have a right to use evasion techniques to access geoblocked content from being accessed in Australia. I do not actually think this is an issue that is going to be particularly controversial. Minister Turnbull has been pretty upfront. He says avoiding geoblocking techniques should not be illegal. The IT prices inquiry certainly found that it should not be, so I propose to test goodwill on that proposition by moving an amendment when we get to the committee stage.

Of course the government has not responded to that report either. So what we see again is that element of laziness: bring forward a site-blocking mechanism but don't deal with the broader more nuanced elements of the way copyright policy needs to change to stay up to date with what technology is doing.

If you want evidence that people are willing to pay for content and will not pirate it, if it is available, look at the launch of Netflix in Australia not that long ago, which has seen an extraordinary take-up in service. One month after its launch this March, Netflix reportedly now accounts for a quarter of iiNet's traffic. They are struggling to keep up. They are hardening up and improving their infrastructure. A quarter of iiNet's' traffic, according to one report that I saw, is people using Netflix: people paying for content; people who were not able to access the material through other channels are now stampeding through iiNet—and I am presuming Telstra and others are seeing the same in their traffic.

So it is lazy legislating. If you want people to stop ripping stuff off—and I am an artist; I come from an arts background and I want artists to get paid, particularly Australian ones—make it available. Stop trying pretend that it is still the 20th century and that the internet does not exist.

If experience has taught us anything, we get this ineffective site-blocking regime, which I think has quite dangerous seeds within it for expansion and scope creep. On the other hand, with the mechanism that now exists, every filter that has been tried or trialled has had unintended consequences and overblocking.

Labor's first internet filtering scheme quite notoriously listed the website of a Queensland dentist and a tuckshop consultant on its black list. ASIC, as I said before, inadvertently knocked over 250,000 sites. The parliament's own internet filtering scheme—I suspect there is not a senator or staffer in this building who has not seen the parliament's blocked list message for some piece of content that might have a word taken out of context . It blocked a News Limited former website, The Punch—I am not even sure why; I have had similar experiences with other completely harmless sites. These things are actually very difficult to keep accurate, given the volume of content that is out there.

The Australian Christian Lobby already called for the filter to be extended to cover completely legal pornography sites. I know not that many people take them all that seriously—although some in the coalition probably still do—so, arguably, they might be seen as a voice from the fringe and one not to pay too much regard to, but they do have very senior access to Liberal Party spokespeople and ministers. And they called it a no-brainer—a mandatory clean-feed. If you wanted to see categories of content that the Australian Christian Lobby does not like, you would have to put yourself on an opt-in list; you would have to be listed as wanting to see things that the Australian Christian Lobby disapproved of. I understand that they may be seen as voices from the fringe, but that was a serious proposition that they put forward, as they welcomed Mr Turnbull and Senator Brandis's announcement of this—

Senator Ian Macdonald: You'd know about voices from the fringe, wouldn't you.

Senator LUDLAM: Speaking of voices from the fringe, Senator Macdonald, I am so looking forward to your contribution. I will hurry along because I know you are very eager.

Both the Minister for Communications and the shadow Attorney-General have stated that the bill is not intended to catch legitimate services like virtual private network providers, but the bill does not make it clear. Again, I am hoping that this is a relatively uncontroversial amendment. VPNs have a very wide variety of legitimate uses, and I think it is extremely concerning that this bill has left vague the fact that it may be possible for a court to decide that the primary purpose of VPN services is to facilitate or to infringe copyright.

The structure of the bill makes it very clear that, at least after the first several actions, it is very unlikely that these blocking injunctions, that will come, most likely, from foreign rights holders, will be blocked either by the affected website owners—who may be based overseas and who are not necessarily going to want the expense of defending an Australian legal case—or the ISPs. So why would the service providers, particularly after the first couple—we can assume some goodwill here but maybe not hope that it would extend too far—be fronting up expensive legal cases in defence of their users? iiNet did that—they took that all the way to the High Court—and iiNet has been quite ferocious in defence of their users' privacy. This bill appears designed to circumvent that kind of goodwill and make it very expensive or very costly in the future.

The experience in the UK, where a similar regime prevails, shows that ISPs are likely to only contest the first few injunctions before waving through most of what comes afterwards. And that—again, to foreshadow—goes to why we have proposed, in another of our committee stage amendments, that much wider standing should apply, so that the courts can hear from affected third parties or others who might want to put a public interest point of view or who have a private interest even though they are not the ISP or somebody more immediately affected.

Say, for example, you use a cloud hosting provider, or you use a particular service for business purposes, and you suddenly find one day that it has been wiped out and you can no longer reach it. You may have nothing to do with breaching copyright, but a court somewhere has decided that it was facilitating copyright infringement. What right do you have to contest that application in court if your private data is no longer available to you or your business in this country? That is the kind of risk that we are playing with here.

So, when it comes to the end of this debate—and I understand very few speakers have been put forward—we will be moving a second reading amendment, and I will foreshadow it now. I will move now, for voting on later in the debate, that this debate should be adjourned. Our amendment is quite similar to an amendment that the Labor Party moved in the House, and it is again a little bit similar to what Senator Collins foreshadowed, except that our amendment would have some practical effect. It is not rhetorical. We propose that this bill debate be adjourned until the government has responded to the ALRC's review of copyright reform of November 2013. Senator Collins name-checked it on the way through, and quite rightly so. That was where this agenda was last canvassed in a reasonably broad and consultative way by people who were not simply the rights holders. There were $4 million in donations to the major parties. That kind of influence is not something that the ALRC was subjected to. So I hope that we will get support that this debate should not proceed and a vote should certainly not proceed until those bigger issues have been looked at.

I think, as I said at the outset, that this bill combines elements of laziness, and it is also dangerous and it is not something that we should be rushing forward. It is a bill that, in my view, appears designed to expand, down the track. So I would call on the Labor Party this afternoon to actually be the opposition and try and hold this government to account, for a change, in defence against not just the unintended consequences but the quite real consequences of passing the bill in its present form.

The ACTING DEPUTY PRESIDENT ( Senator Williams ): Senator Ludlam, you have foreshadowed the amendment on page 7709—is that correct?

Senator LUDLAM: Yes, that is correct; I am sorry that I did not identify that on the way through.