Page 1496 - Week 05 - Thursday, 7 May 2015
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The question has also been asked whether the right to protection of Aboriginal and Torres Strait Islander peoples’ knowledge will lead to the recognition of new types of intellectual property. The simple answer to this is no. As the government has outlined in its explanatory statement to this bill, acts such as the Plant Breeder’s Rights Act, the Copyright Act, the Designs Act and the Trade Marks Act provide mechanisms for the assertion of intellectual property rights. Michael Davis, in his research paper for the Australian Parliamentary Library, noted:
… all these intellectual property laws are available to Indigenous peoples, some, such as copyright and patent laws, are more potentially relevant or useful than others.
He continued:
The use by Aboriginal people over the past decades of the Copyright Act (and to a lesser extent other laws such as breach of confidence) and the judgements resulting from those actions, have extended the boundaries of the interpretation of intellectual property laws. They have also emphasised the conceptual gaps between the western notion of intellectual property and Aboriginal and Torres Strait Islander peoples’ perspectives …
Proposed section 27(2) requires that public authorities refrain from denying the rights of Aboriginal and Torres Strait Islander peoples to maintain, control, protect and develop their cultural heritage. Aboriginal and Torres Strait Islander peoples are not prevented from enforcing their rights within the scope and process of existing intellectual property law. The proposal in this bill is that public authorities must not impede enjoyment of those rights. Proposed section 27(2) does not require the ACT government to take positive action to introduce mechanisms for the recognition of those rights notwithstanding the limited scope, if any, of the territory to make such laws besides those that already exist in commonwealth law. Put simply, the recognition of cultural rights as drafted will not lead to the recognition of new types of intellectual property.
I have quoted extensively from my response to the scrutiny of bills committee report, and it is important that I do so to place on the record that the government has looked very closely and carefully at the issues arising from title and intellectual property. The government has, through its own processes, reached the conclusion that it can have a high level of confidence that the recognition of these rights does not expand into the areas raised by members of the opposition. Nevertheless, it is important that this bill is adopted with strong support across the Assembly as a whole. It would be regrettable if an amendment to our Human Rights Act that for the first time acknowledged the cultural links of Indigenous people in our community to land did not have strong support across this Assembly. Therefore, I have agreed that, should this bill be agreed to in principle today, the government will support a referral to committee for a timely inquiry so that these matters can be further ventilated and this bill can then be considered in the detail stage for resolution as an act of this place later this year.
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