SENATOR BIRMINGAM: (South Australia) (17:31): On behalf of the Chair of Joint Standing Committee on Treaties I present the 126th report on Treaty relating to the Anti-Counterfeiting Trade Agreement tabled on 21 November 2011.

In taking note of this report on the Anti-Counterfeiting Trade Agreement-or ACTA, as it has become known-which was tabled in the Australian parliament on 21 November 2011, I highlight that this is a particularly noteworthy report of the Joint Standing Committee on Treaties. It is noteworthy because it deals firstly with just one treaty, the ACTA treaty or agreement. Secondly, most significantly, it is noteworthy because it does not recommend ratification at this time but instead takes the unusual step for JSCOT in outlining a range of steps that the treaties committee believed should be taken prior to further consideration regarding potential ratification of the treaty.

This is unusual. It is a positive step from JSCOT in taking a treaty seriously and giving it the type of consideration necessary for these serious agreements. It is also positive in that it recommends a pathway forward and provides recommendations not just for the ACTA agreement but also for Australia’s treaty, made in the process, that hopefully will encourage greater scrutiny and consideration of future agreements.

ACTA is an agreement designed to strengthen intellectual property standards around the world. It focuses, in particular, on trademark and copyright enforcement and establishes a legal framework for intellectual property enforcement. These are important issues and ones which I and the coalition have strong views about. We support such objectives: the protection of the intellectual property basis for many parts of our economy and for many individuals who are the developers and holders of such intellectual property.

ACTA has received strong support from Australia’s performing arts community. All members of the community strongly support the need to protect the rights of the performing arts sector. It is certainly not ACTA’s intent that the committee has expressed concern about. I think I can speak on behalf of all members of the committee in saying that there is a genuine belief in wanting to see IP enforcement enhanced to the best available standard.

The committee, however, is concerned that the text of ACTA potentially has a number of flaws and the committee is not yet convinced that the agreement in its current form would definitively be in Australia’s national interest. Therefore the committee, in this report, asks for further analysis and clarification. In particular, the committee has noted the existing Australian Law Reform Commission inquiry into copyright and the digital economy, which is due to report in the not too distant future, and hopes that the ALRC inquiry will inform future consideration of ACTA.

The committee has expressed its concern about the lack of clarity in some places regarding the text and also about certain exclusion provisions to protect the rights of individuals and ACTA’s potential to shift the balance in the interpretation of copyright, intellectual property and patent law. The committee has made nine recommendations in this report, the most important being that this treaty should not be ratified by Australia until: the treaties committee has received and considered independent and transparent assessment of ACTA’s economic and social benefits and costs; the ALRC report has reported on its inquiry into copyright and the digital economy; and the Australian government has provided clarification of some of the terms used in the treaty.

I note that this is a unanimous report that entails some give and take on all sides. Some members of the committee are perhaps more hopeful that we will see a conclusion of ACTA than others. I certainly fall into the category of those who hope we will ultimately see something that provides a greater global strengthening of our copyright and IP laws, which can be done in harmony with other countries and provide greater protection for those who develop and should rightly have some ownership of their IP into the future. But I do commend the treaty secretariat as well as all of my fellow members and senators on JSCOT for the spirit in which they approached this task.

The treaties committee has also made some recommendations to provide for some particular exclusions in the event that an ACTA is eventually ratified by the government. These exclusions relate to how patents are treated in the application of civil enforcement and border measures as well as ensuring that products produced in Australia as a result of the invalidation of a patent or a part of a patent in Australia are not subject to the counterfeiting prohibition enactor. Finally, the exclusions ensure that the expression ‘counterfeit enactor’ is not applied to generic medicines entered or eligible for entry on the Australian Register of Therapeutic Goods.

I note on that last point that specific evidence was heard during the JSCOT hearings, and particular submissions were made regarding the treatment of generic medicines. I think that is an important area that I hope that the information provided by the government on this agreement in the future-and I hope it will be provided-covers some more specific consideration of its impact on the sector. I do particularly thank those in the generic medicine sector who provided particular evidence to the committee on those issues.

As I indicated, the committee has also taken an eye to the future and suggested that there are some lessons to be learned in the treatment of future agreements. It has suggested and recommended that future natural interest analyses of treaties, where the treaties clearly intend to have an economic impact, should actually include some assessment of the economic benefits and costs of the treaty. If not, and no assessment has been undertaken, at the least there should be a statement explaining why it was not undertaken or was unable to be undertaken. This has been an important factor in the committee’s deliberations on this, with some members of the committee particularly concerned to have clearer evidence of the economic implications of this agreement.

There has also been some serious consideration given to the international reaction to ACTA, and indeed there is much international dispute about this agreement. Australia is not the only place where the agreement has been knocked back. Indeed, it comes from countries numerous in number, and many countries whose approaches you would expect Australia to take note of. Accordingly, the committee has recommended that in any future agreement or any future consideration of the agreement Australia should also have regard to the ratification status of the ACTA agreement, particularly in the EU and also in the United States. I do note that a range of European countries, including Germany, Switzerland, Poland, the Czech Republic, the Slovak Republic and Holland have taken positions of suspending consideration of ACTA, or indeed are doing similar things and seeking further information.

In closing, as I indicated this is a significant report of the treaties committee. I think it shows that the treaties committee is keen to ensure that its work in this parliament is work that enhances Australia’s treaty-making process and that ensures appropriate scrutiny is applied to treaties that Australia enters into. I hope that the recommendations provided will be taken seriously. I hope that the recommendations will also be acted upon swiftly, because I do think that at its heart the intentions of ACTA are important and I would hope that the government, working if need be with others who have developed this treaty, can bring something back to the treaties committee to recommend ratification in the not-too-distant future once the various recommendations have been acted upon and taken into consideration. I commend the report to the Senate.