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Monday, 19 March 2012
Page: 3414


Mrs MIRABELLA (Indi) (17:13): In rising to speak on the Intellectual Property Law Amendments (Raising the Bar) Bill 2011 [2012] I want to begin by acknowledging that this is a highly complex but important area of policy. Often ways of comprehensively and effectively changing Australia's IP system for the better are not immediately obvious. In most respects the aims behind the changes in this legislation are right but, on the other side of the House, we are worried that there are potentially going to be some problems in practice, and that additional changes will therefore need to be made. To that end, the coalition will support the passage of the bill but we also want to flag our concerns in a number of areas.

As my colleague Senator Colbeck outlined in the second reading debate in the Senate, the coalition has consulted with a diversity of stakeholders about the bill and the issues contained within it. Generally, stakeholders do agree that various elements of the changes are positive, but many also believe several important issues remain unaddressed and there is still quite a degree of work to be done. More worryingly, in many cases they also feel the government is not listening to their concerns about the issues they consider to be unresolved but has drawn a line in the sand and is apparently refusing to take reasonable feedback on board.

The coalition's attention has been drawn to many instances where the government essentially appears to have made no effort to consult. The process leading to the introduction of this legislation into parliament has unfortunately provided yet another demonstration of the government's unwillingness to consult with or even listen to many people who happen to have a different point of view and also happen to have great expertise and practical experience in relevant areas. We can only hope that the recent changes in ministerial responsibilities may help resolve some of these problems in the innovation and industry and science and research portfolios in the future and may lead to at least a partial cleaning up of the dog's breakfast left behind by Senator Kim Carr. Although I am sorry to say that I very much doubt that this will happen, we can live in hope. I have absolute confidence it will happen at some future time—when a coalition government is elected we will continue that dialogue we have started with relevant stakeholders.

We need to look at some of the public statements that the new Minister for Industry and Innovation has made about the portfolio stakeholders. I was absolutely stunned when, in his first statement to industry, he said that they needed to lift their game; that they needed to start thinking about the national interest and not their own interest. He implied that they were not mature. These comments were made at the time of that very unseemly, ugly, internecine war within the Labor Party about leadership, but he was telling industry that they were not mature enough! It was not a particularly glorious start; not one draped in the glory of giving great comfort to industry. I hope this is not a sign of things to come, but it does at this time reveal some of the attitude and thought processes of key ministers in the current Gillard Labor government.

One of the many unfortunate consequences of the government's unwillingness to consult is that it has failed to genuinely address a number of concerns relating to the practicality of implementing some of the provisions embedded in the legislation. This includes concerns from a number of eminent members of the legal profession, as Senator Colbeck rather eloquently outlined in the Senate. It would be a significant problem if one of the legacies of this bill, and it seems quite conceivable, is that it increased rather than decreased confusion about the law and the demarcation of legal responsibility for the resolution of IP issues. There are also substantial concerns about the resourcing of Customs. Many stakeholders doubt that the agency is appropriately resourced and equipped to provide the required information to brand owners in respect of Customs seizures in particular. More to the point, they are worried that Customs does not currently possess the administrative and logistical wherewithal to appropriately deal with counterfeiting operations and practices. Nor is its capacity in this area likely to be suitably increased at any time in the short to medium term. The problems inherent in this bill mirror those in many other Customs related bills that have come before the parliament in recent months. Labor has also repeatedly cut Customs budget allocations and staff numbers and severely reduced aerial surveillance, passenger facilitation, cargo screening and air and sea cargo inspections. We have seen in all-too-graphic detail over recent weeks the disastrous, unravelling consequences of this neglect—especially, most recently, on the streets of Sydney. All of this naturally raises a quite ominous spectre about the ongoing capacity and effectiveness of Customs to police threats of to the integrity our IP system, especially at a time when the agency is under ever-increasing pressure because of the complete and utter disarray in which the government finds itself in relation to border protection.

Throughout our interaction with key stakeholders on this bill, we have been routinely advised that section 41 of the Trade Marks Act needs further refinement. We have also heard that there may be some increased pressures on agricultural chemical companies because of the increased capacity for springboarding being facilitated by the provisions of schedule 2 of the bill. I recognise that the intent of relevant changes in schedule 2 is to improve the arrangements relating to the lifespan of patent protection and that it will probably ultimately allow consumers access to a wider range of products, including generics. But the government needs to remain especially mindful of how this might in practice compromise the viability of other products.

There remain a range of views about the appropriateness of the proposed penalties and offences listed in schedule 5, and I am sure there will continue to be a range of further discussions on these penalties into the future. Overall, the coalition takes the view that the legislation should be passed, because some of the changes are beneficial and ultimately some improvements are better than none. But that does not absolve the government of the responsibility to listen to the sensible points of view that have been and will continue to be articulated by many stakeholders. Nor does it mean that the government should not be genuinely and seriously using the feedback to help drive improvements in a range of other areas in relation to IP issues.

Finding and pursuing ways in which governments can help to deliver a better IP regime in Australia, lift the level of encouragement for Australian inventors and innovators, and drive improved commercialisation outcomes are extremely important and worthwhile objectives. They have certainly been the core aims on which the coalition has focused throughout the discussions on this bill, and they are the aims for which we will continue to advocate. I hope that the bill will in some way progress them as well.