21 March 2012

‘Raising the Bar’ Moves Another Step Closer to Law

Parliament House Hot on the heels of a ‘second reading’ on Monday 19 March 2012, the Intellectual Property Amendment (Raising the Bar) Bill 2011 was read a third time, and agreed to (i.e. passed), by the Australian House of Representatives on 20 March 2012.

The Bill will now pass to the Governor General to receive the Royal Assent, i.e. to be signed into law.  While we have been unable to identify a timetable for this step, it seems likely that the Bill will become law within the coming days.

At the second reading, members of both sides of parliament, along with the Australian Greens’ Member for Melbourne, Adam Bandt, spoke generally in support of the Bill, although there continue to be reservations expressed by members of the opposition on issues such as the patenting of genes, and the impact of patents on the cost and availability of healthcare (neither of which are specifically addressed by the legislation).

As anticipated (see Major Australian Patent Reform Passes in Senate), despite the customary use of the ‘debate’ by each side of politics to score a few political points against the other, the Bill was largely uncontentious and it was ordered that the Bill be reported to the House without amendment.


Speakers at the second reading were (names link to Hansard of speeches):
  1. Mark Dreyfuss, Labor Member for Isaacs and Parliamentary Secretary for Industry and Innovation and Parliamentary Secretary for Climate Change and Energy Efficiency;
  2. Sophie Mirabella, Liberal Member for Indi;
  3. Tony Zappia, Labor Member for Makin;
  4. Jill Hall, Labor Member for Shortland and Government Whip;
  5. Melissa Parke, Labor Member for Fremantle;
  6. Adam Bandt, Australian Greens Member for Melbourne; and
  7. Mark Dreyfuss again, concluding debate and ordering that the Bill be reported to the House without amendment.
Unsurprisingly, the Labor government members all spoke strongly in support of the Bill, lavishing the expected praise on those responsible for bringing it to fruition.

Mrs Mirabella (her preferred title) generally echoed the views of her Senate colleagues – particularly Senator Colbeck – in acknowledging a high degree of community and industry support for reforms in the Bill, noting that many of the people the opposition has consulted have indicated that they want to see the legislation passed.  However, they also made it clear that the opposition does not consider the Bill to address all areas of concern, and sees it more as a 'good start', rather than the final word on Australian IP law reform.

Mrs Mirabella also accused the government of a lack of consultation during the development of the legislation.  This is in some ways a fair criticism, considering that consultation was conducted primarily by IP Australia, and occasionally lacked the level of openness and transparency the public might have expected from a process driven by elected representatives (see, for example, Patent Reform–IP Australia’s Underexposed Exposure Draft – a situation that was only belated rectified: IP Australia's Exposure Draft Exposed!).

More surprising, perhaps, was the strong support of Greens Member Adam Brandt, who expressed no reservations in relation to the patenting of genetic technology, the impact of patents on research freedom, or the effect of patents on the cost and accessibility of healthcare.  This appears to have been in no small part due to the fact that a number of major research institutions are located within his Melbourne electorate – including the University of Melbourne and, as Mr Bandt put it:

…one of the world-leading health and medical research institutes [and] one of Australia's largest, Walter and Eliza Hall Institute. Professor Doug Hilton, the director of the institute, said that the raising of the bar bill would raise industry standards on patenting without jeopardising human health and the developments for new treatments for disease.

This leaves us wishing that more politicians would consult with experts in their electorates, rather than playing to the court of popularity and public opinion.  Although we are not holding our breath.


The date the Bill is signed into law will be the start of the 12-month period prior to commencement of the bulk of its provisions.  The implementation of a number of these reforms will rely upon the drafting of new and amended regulations by IP Australia.  Naturally, we will continue to follow this process.


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