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Wednesday, 27 June 2012
Page: 4718


Senator LUDLAM (Western Australia) (17:41): I would just like to add a few comments to those of the deputy chair of the committee on behalf of the Australian Greens.

I suppose I will lead off with where Senator Birmingham left off. I suspect that his view is that his glass is half full on the eventual ratification of ACTA; I can assure the chamber that mine is half empty. I do not believe that this is a document that should come into force, and I am extremely pleased that the Joint Standing Committee on Treaties has done something quite unusual; it is unusual that the committee would have produced such a strongly worded document with so many conditions attached to the treaty being ratified by the Australian government. This is one instance where in the interests of a unanimous report—and this is a committee that is very collegial and that does try to bring all views to a consensus—I eventually elected simply to work with the recommendations that we had, and I am very pleased with them.

It is an agreement that attempts to create a global standard for intellectual property rights. It kicked off in 2007 with a discussion draft that was distributed in complete secrecy to lobbyists in the IP industry. In May 2008 that document was leaked through the wikileaks website, and the general public got its first look at it. So it is an agreement that was born effectively in secrecy and has remained there until not that long ago. It is called the anticounterfeiting agreement, but you might be surprised to know that it has got nothing whatsoever to do with currency fraud. It is in fact a proposal for an extremely strict global intellectual property rights enforcement regime.

The Australian government has signed this agreement and, almost alone in the world, still believes that it should be ratified without delay. The Joint Standing Committee on Treaties unanimously and strongly disagrees with this view. The committee took evidence from some of Australia's best minds on copyright counterfeiting and patient law and has today presented a unanimous report that distils many of the compelling reasons why I believe ACTA should not come into force.

DFAT, on the other hand—the department; the negotiators who spoke to the committee and who were quite generous with their time and came back for a second helping after the committee was unsatisfied with their first presentation—are optimistic that ACTA will come into force some day. In fact, the two occasions the department gave evidence to the committee were characterised by a kind of surreal, gritted teeth sort of optimism. The committee has thoroughly examined the text, the arguments and the positions taken by other governments, and we see the writing on the wall. I quote:

… there appears a very real possibility that ACTA will not be ratified by sufficient countries in order to come into existence.

Australia risks being out there, effectively completely alone in its support for this flawed instrument. Our recommendations revolve around a strong set of preconditions that would need to be met in order for the committee to consider or reconsider whether or not the agreement should be passed. I draw the chamber's attention specifically to recommendation 8: 'That the Anti-Counterfeiting Trade Agreement not be ratified by Australia until'—and there are three serious preconditions there. Firstly, the treaties committee has requested and would propose to then consider an 'independent and transparent assessment of the economic and social benefits and costs of the Agreement referred to in Recommendation 2'. That is the first thing. Somebody needs to go back and do some homework. At no stage was the committee able to be provided with information sector by sector as to the economic and social winners and losers of signing up to an instrument such as this. The work had not been done, and on a number of occasions we were told that it probably could not be. For something such as this, it is not enough to simply proceed on some kind of blind ideological faith that all forms of trade agreement are uniformly good for all people in all countries, and that was the proposition that seemed to be advanced to JSCOT, with nothing to back it by way of formal or quantitative evidence.

The second part of recommendation 8 goes to the review into copyright that is currently being undertaken by the Australian Law Reform Commission. That is an issue that is quite central to the way that this instrument would operate if it did come into force. We believe that the committee, before it opens up the question of whether ACTA actually should be ratified again, should have in its possession that important piece of work by the ALRC. Thirdly, we propose that the Australian government issue notices of clarification in relation to the terms of agreement as recommended in other parts of the report. So we have put together quite a comprehensive list of things that the government and its trade negotiators, if they are insisting on proceeding with this instrument, should come back and clarify and provide. They should just be upfront and let the Australian public know—in this instance through the committee—what exactly it is and who exactly it is who will be benefiting from this treaty should it pass.

We heard a great deal of evidence about the fact that no reforms to Australian laws would need to be made in order for this agreement to come in force, and therefore it is appropriate for us to wave it through. Setting aside the arguments that were put by several witnesses that actually this is about imposing quite an onerous and flawed IP regime of other countries that would be effectively setting the standard, what the committee found is that in fact we would need to move several amendments to acts through the Australian parliament because of severe problems that would be thrown up if this agreement came into force. For example, the parliament would need to legislate to formally exclude patents from the appli­cation of civil enforcement and border measures components of the act or agreement. This is, I think, something that we just were not able to get through to those who represented the government in the committee hearings. Secondly, the parliament would need to legislate to ensure that products produced in Australia as a result of the invalidation of a patent or part of a patent in Australia are not subject to the counterfeiting prohibition in ACTA. This is a treaty so breathtaking in its vagueness and ambiguity that the people that we took evidence from simply were not able to settle the question as to whether ACTA would apply or influence patent law at all. The negotiators believe it does not, but it is nowhere in the document. Thirdly, the parliament would need to legislate to ensure that the expression 'counterfeit' in ACTA—which is a curious choice of words, as I am sure you agree—is not applied to generic medicines entered or eligible for entry on the Australian Register of Therapeutic Goods. We had the generic medicine producers give quite compelling evidence to us that in fact this agreement trespasses all over the kind of work that they do to bring inexpensive medicines into Australia.

Senator Birmingham was quite right when he noted the experience of other countries overseas in their interpretations of ACTA, where it is quite severely on the way out. It is one of the reasons that we believe Australia should not ratify this agreement at all, because at the present time, if we did so, we would find ourselves the only country in the world that did so. Some governments, on the other hand, do appear to be listening to their populations. Europe and the United States have seen large and persistent demon­strations. In Germany there were demon­strations in 40 towns in June, and 100,000 people came out across Europe in February, 25,000 or so of them in Munich. People are organising around the world to block this treaty. The European Parliament's chief investigator into ACTA recommended against it coming into force because the intended benefits do not outweigh the potential threats to civil liberties, and there were resignations: the first rapporteur, Kader Arif, resigned in protest when the EU signed ACTA. This is an agreement that is seen as being extremely problematic around the world.

We have not in the committee gone very much into detail and did not directly address the Trans-Pacific Partnership Agreement, which many are aware is coming down the pipeline directly behind ACTA, but I think this is the first domino being pushed over into the TPPA, and I think it heralds some very significant flaws there as well. There is a great deal wrong with this treaty, and I urge members of the public to read the JSCOT report. It is very interesting reading, largely thanks to the work of the chair, the deputy chair and the cross-party MPs who came to the meetings and the hearings. I would particularly like to thank the staff of that committee, who are exceptionally diligent in the work. Lastly I thank the witnesses. There was very, very high-quality testimony provided to the committee from some of the best minds in the country. On ACTA we learned a great deal from Dr Matthew Rimmer, Dr Hazel Moir and Dr Palombi from the ANU. I would like to mention Dr Kimberlee Weatherall and Anna George from the University of Sydney, who provided us with real insights from the perspective of former diplomats at the WTO. Lastly, I acknowledge Ellen Broad from the Australian Digital Alliance, who have done a great deal of work in drawing together common-sense arguments from around the world. I thank the chamber for the opportunity to comment, and I thank the other members and the chair of the committee for putting this document together. I seek leave to continue my remarks later.

Leave granted; debate adjourned.