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Thursday, 12 August 2004
Page: 26417


Senator RIDGEWAY (9:40 PM) —What a weak response from the opposition. Quite frankly, it ought to be supporting these sorts of changes. Whilst Senator Lundy talks about what the Labor Party will do if it gets into office, the question that needs to be asked, given this massive cave-in to support the free trade agreement, is: what will it do if it does not get elected to office? That is what stakeholders out there want to know. Although the free trade agreement specifically allows certain things to happen, the reality here is that, if you want to talk about drawing a line in the sand, we ought to keep reminding ourselves that the free trade agreement makes the Australian national interest subordinate to whatever it is that is written into the text, including the way that we develop everything from environmental policy, social policy, health policy and cultural policy to intellectual property policy. That is the reality of what we are faced with here.

A Senate select committee somewhere down the road will be dealing with issues in the context of the cement that is already set. That wet cement is over there in the free trade agreement. You guys have decided to support it because you think it is a great idea. You have not considered all of the issues that have come up here before the parliament and, most of all, we still do not get to debate the free trade agreement. We are just dealing with the enabling legislation, which is why I raise the issue about the most significant chapter in the entire free trade agreement: chapter 17, dealing with intellectual property. It is the longest; it is the most significant. There has been no public consultation out there with the stakeholders and the broader community. What do we get? A response from the opposition: `When we get into office, we will have a Senate select committee. We will get out there and inquire about intellectual property.' The reality is that it is much more than just saying what we will do later; it is about what we can do now. The free trade agreement is fundamentally flawed on 42 grounds. You named them; you have just named the third one, which possibly should have been part of the package of a sweet deal with the Prime Minister that perhaps the White House could have signed off on and said, `Yes, we can live with that.' But we know that that was not going to happen. Why? Because the whole issue about intellectual property and the changes of copyright law have come about because of the strong influences, if you like, of US corporations which have a vested interest in making sure that their ownership of copyright and the way that that is policed across the world is done through these types of preferential trade agreements.

We have aided and abetted the United States in making sure that they can do exactly the same under other trade agreements with other countries. The opposition come in here and say, `We're going to deal with it later on if we get into office.' But, after having this massive cave-in, the question ought to be: What will you do when you're still in opposition?

I ask the minister a specific question in relation to the extension of civil liability under the free trade agreement. As he would know, the free trade agreement specifically allows Australia to limit civil and criminal liability to public institutions, such as nonprofit libraries or archives, educational institutions and public non-commercial broadcasting entities where they were not aware and had no reason to believe that their acts were unlawful. This bill does not make that exemption regarding the civil liability. I ask the minister: why has this limitation not been legislated? Was there something that the negotiators had in mind? Is there a problem that they anticipated and therefore they have not looked at this particular question?

I also want to ask the minister, with reference to the extension of civil liability, whether he is prepared to answer the question for the Hansard record, just to highlight the flaw in the free trade agreement, of how many ministers in the Howard government have copied CDs for personal use—or, given their age, I might ask how many have copied vinyl onto tape. The reality is that it is being put out there that, as ridiculous as it may sound, we have allowed US laws to be extended into this country such that acts of that sort can now be dealt with as a matter of civil liability.

I ask the minister whether or not he agrees that these provisions clear the way for a ridiculous amount of civil litigation, which has not been tested yet but is sure to arise given the way these cases are dealt with in the United States. I am sure that all of us think about these things from time to time—we put in a video to record the television or we program it when we go out for the night so that we can have a look later. How are the laws going to apply in those particular circumstances? Can the minister give an answer on that? That is the question here. What is the effect of the free trade agreement, even in relation to something as simple as that, which Australians do every night of the week, every day of the year?

You should be changing the law to make sure that there is a fair use provision available so that Australians do not end up being prosecuted for a civil offence—or perhaps, in some cases, even a criminal offence. I ask again: how many ministers have copied CDs or vinyls? Won't this provision under the free trade agreement lead to civil liability claims? It fundamentally highlights some of the flaws in the intellectual property chapter of the free trade agreement, which is another reason why it ought to not be supported.