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Tuesday, 7 December 2004
Page: 97


Senator CONROY (7:34 PM) —Mr Acting Deputy President, you would recall the debate we had in this chamber back in August for the passage of the Australia-United States free trade agreement. During that debate Labor amended the FTA bills. Those amendments were necessary to ensure the FTA did not undermine our Pharmaceutical Benefits Scheme and to protect local Australian content on television. There was great controversy at the time about Labor's amendments in regard to the PBS. The Prime Minister said they would be unworkable, they were a mistake, they were not consistent with the spirit of the agreement and they would cause us great problems with the Americans; Labor was trying to sink the FTA. That was what the Prime Minister was suggesting. If the FTA failed to come to fruition because of Labor's amendments it would be Labor's fault.

We are debating this Copyright Legislation Amendment Bill 2004 today not because of any mistake on the part of the Labor Party, not because Labor's PBS amendments have threatened to prevent the US FTA being implemented—no, not at all. Rather, this bill is necessary to address this government's incompetence. This bill is required to address all of the mistakes that the government made in its US FTA implementation bill, although it also appears to go further than that. It was not Labor's amendments that threatened the US FTA. It was the government's incompetence, the government's mistakes, the government`s failure to correctly amend Australian law to ensure that we complied with our obligations under the US free trade agreement. Accordingly, in light of the government's failure, I move the following amendment to the motion for the second reading of this bill:

At the end of the motion, add:

“but the Senate:

(a) notes:

(i) with concern, the failure of the Government to previously correctly implement its obligations under the United States Free Trade Agreement Implementation (USFTAI) Act;

(ii) with concern, that this Bill has the potential to enable persons other than copyright owners or exclusive licencees to force an internet service provider to take down allegedly infringing copyright material from their system and that this potential new ground for ISP liability is not contained in the USFTAI Act;

(iii) that this Bill was sent to the Legal and Constitutional Committee which heard evidence that the Bill may disrupt the balance of interests between copyright owners, users and internet service providers;

(iv) that the Government intends to respond to these concerns through Regulations that will flesh out legislative safe harbour provisions and will consult with stakeholders in the preparation of these provisions;

(v) the commitment by the Government to keep implementation of the safe harbour scheme under close review and, as necessary, consult with stakeholders on any issues that may arise, including appropriate responses;

(vi) that Labor's amendments to the Australia-US FTA are not contrary to the terms of the FTA, our international obligations under WTO TRIPs and are not referred to in this Bill;

(vii) with concern, that the diplomatic note of exchange from the US refers to Labor's amendments and the Senate therefore calls on the Government not to weaken in response to US pressure and to reaffirm its commitment to Labor's amendments to protect the pharmaceutical benefits scheme and local Australian content for television; and

(b) calls on the Government to restate its view that Australia has a different approach to the US on the criminalisation of pirated satellite signals in the home and to therefore give an explanation of its commitment to the US to undertake a review of Australia's domestic policy relating to criminalisation of all forms of satellite signal piracy, including unauthorised distribution or receipt of signals by commercial establishments and within the home, that shall conclude no later than 1 July 2005”.

The government says that this bill is necessary to make various minor and clarifying amendments to the Copyright Act and the US FTA Implementation Act. These amendments are not minor and clarifying. Indeed, items 11 and 13 of the bill that address the copyright obligations of Internet service providers have, we understand, appeared without consultation with the Internet industry and come as a complete surprise. The text of the FTA commits Australia to a scheme for determining ISP liability based on the safe harbour concept—that is, if they meet certain conditions, ISPs will not be liable for breaches of copyright that may occur on their network by users. The text of the FTA is broad. ISPs may be liable if:

... they fail to act expeditiously to remove or disable access to the copyright material once they become aware that the material/s infringing, or become `aware of facts or circumstances from which the infringement was apparent'.

The government's FTA implementing legislation apparently did not adequately reflect this requirement. This bill therefore sets out further conditions that ISPs will have to meet to access the safe harbour. The bill raises complex issues affecting the balance of rights between copyright owners, copyright users and ISPs.

The Australian Digital Alliance and the Internet Industry of Australia have expressed considerable concern about the potential impact of these amendments. It was for these reasons that Labor sent this bill to the Senate Legal and Constitution Affairs Legislation Committee for examination. Just as Labor had to establish a Senate Select Committee on the US FTA to give the public the opportunity to have their say on the FTA, Labor was required to refer this bill for examination by committee.

At the hearing of the committee held last night, the Australian Film Industry Coalition advised that the arrangements in the bill do ensure a fair balance between owners and users. These arrangements are essential, they suggested, to ensure artists, performers and owners of copyright are adequately rewarded for their efforts. These are very valid points. However, it was also suggested that there are major problems with the bill. In particular, it will undermine the FTA safe harbour scheme, removing immunity for ISPs who act in good faith under the new arrangement and remove important protections for ISPs' customers. Internet users may no longer be able to prevent their legitimate material from being taken down.

The committee heard evidence that these new provisions go further than Australia's obligations required by the FTA. If we are to encourage the development of a knowledge based economy in Australia, this is not the way to do it. If we are to encourage an open and free flow of information across the Internet, this is not the way to do it. Officials from the Attorney-General's Department advised the committee that many of the concerns raised by ISPs would be addressed in accompanying regulations. However, these regulations have not yet been made available. The Senate is not in a position to scrutinise them.

We are, once again, put in a position of assessing legislation without the accompanying regulations that will affect the operation and impact of the legislation. Notwithstanding the inadequacy of this arrangement, Labor accept an assurance received today from Minister Vaile that the concerns of ISPs and copyright users will be resolved through regulations. The government has made it quite clear that these regulations will flesh out the legislative safe harbour provisions and the rights and obligations of copyright owners, users and ISPs. Labor also take assurance from Minister Vaile's commitment that:

... the Government will keep implementation of the scheme under close review and, as necessary will consult with stakeholders on any issues that may arise, including appropriate responses.

Mr Acting Deputy President, I seek leave to table the letter that the shadow trade minister received today from Minister Vaile, as it is the intention of the shadow minister to table the letter in the other place.

Leave granted.


Senator CONROY —The exchange of diplomatic notes between Australia and the US on 17 November was the final step between our two countries to bring the FTA into force on 1 January 2005. The content of those letters was very instructive for the references that have been made to key areas of Australian public policy. The government appears to have made further commitments to the US on key areas of public policy without adequate—indeed any—consultation with Australian stakeholders. Notwithstanding Labor's rock solid legal advice that our amendments to the PBS are compliant with the text of the FTA and our obligations under the WTO TRIPs agreement, the US has expressed concern in their letter. Specifically, the US has said Labor's amendments:

... impose a potentially significant, unjustifiable, and discriminatory burden on the enjoyment of patent rights, specifically on owners of pharmaceutical patents.

The US goes on to:

... urge the Australian government to review this matter, particularly in light of Australia's international obligations.

Labor's amendments to protect the PBS, were developed on the basis of sound legal advice, released publicly, fully scrutinised and supported by the accompanying legal counsel advice. No such advice was released by the government to support their argument that Labor's amendments may have contravened the deal. Nor has the US released any advice to support its claims.

The government supported Labor's amendments. It is therefore the responsibility of the government to recommit to those amendments and to push back on any US attempts to challenge those amendments in the future. It is incumbent upon, and the responsibility of, the government to respond robustly if the US were to challenge Labor's amendments at some point in the future. Those amendments were based on sound legal advice. They were supported by the government and passed by the parliament. They were necessary to protect the PBS and must not be diminished in any way by any future action the US—or the government—may take.

The US has made it clear that the exchange of letters between Australia and the US enabling the FTA to come into force on 1 January was dependent upon this bill successfully passing through this parliament. This raises a very serious concern. Once again, we are confronted by this government's continuing arrogance and lack of respect for the authority of this parliament. The parliament is not here merely to rubber stamp decisions of the executive. Once again, the Senate is being presented with a bill as a fait accompli. The bill was developed in full consultation with the US to ensure that they were satisfied with the laws that this government intended to introduce. Minister Vaile attached a copy of this bill to his letter to Ambassador Zoellick. The government consulted the US—a stakeholder in the FTA, but another country. The government consulted with the US on the contents of key elements of this bill before consulting fully with its own citizens, its own stakeholders. We have again been presented with another signed and sealed deal with accompanying legislation that the parliament must rubber stamp.

For these reasons Labor is committed to introducing a new mechanism for parliamentary scrutiny of free trade agreements. Prior to commencing negotiations for bilateral or regional free trade agreements, a Labor government will table in both houses of parliament a document setting out its priorities and objectives. This will include an assessment of the costs and benefits of any proposals that may be negotiated. Once the negotiation is complete, the government will table in parliament a package including the proposed treaty, together with any legislation required to implement the treaty domestically. Labor is committed to giving the Australian public an effective democratic and transparent process to review any FTA being negotiated to ensure it is in Australia's national interest. Labor will not conduct FTA negotiations in the secret manner pursued by this government. This government's arrogance and contempt for the parliament is unacceptable and must not be allowed to continue.

Senator NETTLE (New South Wales) (7.46 p.m.)—I seek leave to incorporate Senator Ridgeway's contribution to the second reading debate on the Copyright Legislation Amendment Bill 2004.

Leave granted.