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Monday, 27 February 2012
Page: 874

Senator COLBECK (Tasmania) (20:23): I rise to make a contribution to the debate on the Intellectual Property Laws Amendment (Raising the Bar) Bill 2011 [2012]. The coalition is broadly supportive of this piece of legislation, but we also recognise that a number of elements remain to be considered in relation to intellectual property in this country.

The opposition has undertaken considerable consultation during considera­tion of its position on this piece of legislation. We have spoken to a broad range of interested parties in relation to the bill. During that consultation a number of issues were raised with us, and I will detail those shortly. I also note that there are a number of issues around intellectual property that concern a number of members of this chamber. However, during our consultations, the bottom line was that this piece of legislation is broadly beneficial; those we consulted with would prefer that this legislation be passed so that work can continue with other elements that remain of concern to those we have spoken to. We have given that commitment to continue to work on those matters.

We understand that government thinks this is the full kit as far as managing issues around intellectual property might be concerned, but it is quite obvious from our consultations that there remains some work to be done.

The bill amends the Patents Act 1990, the Trade Marks Act 1995, the Copyright Act 1968, the Designs Act 2003 and the Plant Breeder's Rights Act 1994. The bill is divided into six schedules.

The first schedule relates to the quality of granted patents and addresses concerns that the threshold in Australia for granting patents is too low, and I am certain some of my colleagues will address some of that later in the debate. I know there are some particular concerns around the granting of patents for human and plant genes. With respect to where Australia sits at the moment, the concern was that the threshold was too low and that patents were granted for inventions that were not sufficiently inventive. So this piece of legislation addresses that to a certain extent.

Schedule 2 provides for free access to patent inventions for regulatory approvals and research. That is an issue that has been discussed at length; it has been the subject of a couple of Senate reports around patenting breast cancer research. The intention of this schedule is to ensure that free access to patent inventions for regulatory approvals and research is freed up.

Schedule 3 looks at reducing delays in resolution of patent and trademark applications.

Schedule 4 looks at assisting the operations of the IP profession. That provides for amendments to the patents and trademarks acts to allow for registration and regulation of incorporated patent attorneys and to extend the same client-attorney professional privileges as currently exist for communications between a lawyer and their client.

Schedule 5 relates to improving mechanisms for trademark and copyright enforcement.

Schedule 6 amends the patents, trademarks, design and plant breeder's rights acts, to remove some procedural hurdles, streamline processes and make improvements to ensure the system is fit for purpose in the increasingly electronic and globalised business environment.

My colleagues and I have heard that—as with other legislation—although there was government consultation, there was a question as to whether it was effective. A number of people have told us that they made submissions but received no response—in other words, their submissions were effectively ignored.

There are some concerns around the practicality of implementing some sections of the legislation, particularly relating to jurisdiction of the courts for criminal matters. It appears that even members of the bench are confused. One submission we received was in respect of a practical issue relating to the mechanics of issuing court proceedings for summary offences and the difficulties in ensuring court or courts have jurisdiction to hear such matters—being in the midst of running a criminal prosecution for breaches of the Trademarks Act 1995—it is clear that there is a considerable amount of doubt amongst the bar and the profession, and even from the bench, on this issue. There is also concern around the ability of Customs to provide the required information to brand owners in respect of Customs seizures. That relates to the sophistication of many businesses involved with counterfeit operations and concerns around Customs regarding the ability of Customs to effectively pull together the threads of deception. We know that some of these counterfeit operations are extremely sophisticated and we have heard concerns expressed in relation to other elements of Customs operations. There is cost shifting within Customs to increase capacity in some regions, but at the expense of others, and that obviously remains a concern for people within this industry in relation to products coming in and the capacity to bring in small quantities of product on a regular basis that might be scoping the system.

We note that there might be a need for further reforms to section 41 of the Trademarks Act, and we will continue to look at that. I also note that in respect of schedule 2 there is some concern from agricultural chemical companies around the capacity for springboarding. I acknowledge that that has some benefits with respect to providing cheaper product in the context of generics into the market, ensuring that the effective time for a patent and the protection that provides is provided to the industry and not too much more, but I do note that there remained some concern about the viability around some particular products coming into the market if that period is shortened too much.

With respect to schedule 5, I note that the Senate Standing Committee for the Scrutiny of Bills has provided comment regarding the proposed penalties and offences under schedule 5, item 27. Notably, the committee leaves to the Senate as a whole the question of whether the provisions under this item are appropriate. The coalition does not have any specific comments to make in relation to this piece of legislation, but, as I said at the outset, given the consultation that we have had, despite the concerns raised by industry that there are a number of issues that remain to be dealt with surrounding the issue of intellectual property in Australia, I know that this will be addressed by colleagues as this debate proceeds. There is no question, given the strength of the submissions that the coalition has received as part of its consultation process, that this legislation in its current form should be allowed to pass the parliament so that the benefits it provides to the operations of IP can be taken advantage of. Some work does need to be done to follow up on the other issues that, I have no doubt, will be raised as this debate proceeds. The coalition will be supporting this legislation, despite some concerns that we continue to have.