ACTA in trouble in Australia
As it turns out, the Joint Standing Committee on Treaties has unanimously recommended that Australia should not ratify ACTA at this time. Recommendation 8 states:
That the Anti-Counterfeiting Trade Agreement not be ratified by Australia until the:
- Joint Standing Committee on Treaties has received and considered the independent and transparent assessment of the economic and social benefits and costs of the Agreement referred to in Recommendation 2;
- Australian Law Reform Commission has reported on its Inquiry into Copyright and the Digital Economy; and
- the Australian Government has issued notices of clarification in relation to the terms of the Agreement as recommended in the other recommendations of this report.
Recommendation 9 goes on to exhort any future Committee on Treaties to take into account what is happening with ACTA in other jurisdictions including the EU and the USA.
Recommendations 3 to 7 relate to more specific matters such as, for example, a need to clarify the meanings of ‘aiding and abetting’ and ‘commercial scale’.
Apart from specific matters of particular detail, the Joint Standing Committee seems to have had two main concerns about ratification:
First, the Treaty was tabled in Parliament with a National Interest Assessment (NIA). However, the NIA did not include an analysis of the economic impact that ratifying ACTA would have on Australia.
One reason why there was no economic analysis feeds into the Joint Standing Committee’s second major concern: the NIA stated that ACTA would not require any changes to existing Australian law. The benefit of ratifying ACTA (early) was that it would give Australia influence:
2.13 The NIA encourages the early ratification of ACTA, so as to enable Australia to play an influential role in the ACTA Committee, which will consider, inter alia, rules and procedures for reviewing the implementation and operations of ACTA.
In the absence of an economic assessment, however, the Joint Standing Committee noted there was an absence of reliable evidence that there is a “problem” that needs to be addressed. See [3.6] and reference to the concerns expressed, amongst others, by the US Government Accountability Office.
Secondly, the Joint Standing Committee received a number of submissions which challenged the view that no changes would be required to Australian law. For example, what does “aid and abet” or “commercial scale” mean? To what extent, if at all, are patents caught up in what is counterfeit?
How valid those concerns are may require further investigation but, as As. Prof. Weatherall pointed out, the ACTA Committee will have a role in developing more detailed enforcement mechanisms. The Joint Standing Committee also noted in several places that ACTA does not include the defences or exceptions expressed in TRIPS.
So far as I can work out (it is a long time since I studied constitutional law so let me know if you know better), the Joint Standing Committee has not in fact “struck down” ACTA or Australia ratifying it. The Committee’s recommendations do not constitute a resolution of a House of Parliament and ACTA is not a legislative instrument subject to disallowance on such a resolution.
As a treaty, ACTA would become part of our domestic law only if Parliament passed a statute to implement it. The Government could still ratify ACTA but the Joint Standing Committee’s recommendations are the unanimous recommendations of a cross-party committee so they plainly reflect a level of disquiet with ACTA within Parliament at a high level: a level of disquiet which appears to be felt even within the EU (one of the IP-exporting parts of the world one might think likely to support such a regime).
Download copies of the Committee’s report from here (pdf).