iTnews asks: Can a caretaker Government sign ACTA?

Comment: The powerful nations leading Anti-Counterfeiting Trade Agreement (ACTA) discussions might not be able to count on Australia as a signatory to the treaty if the nation remains in caretaker mode well into September.

The Anti-Counterfeiting Trade Agreement is a treaty that aims to harmonise intellectual property protection and enforcement across the jurisdictions of 27 nations including the U.S., the EU, Canada, Japan, Australia and New Zealand. Civil liberties and internet groups fear certain passages of the treaty - regularly leaked by participants - could have significant implications for both internet service providers and those users that choose to share copyright-protected content.

After several years of negotiations, participants in ACTA discussions have reportedly scheduled an 11th round of talks in Japan in September, which are to be the "final round of negotiations."

Representatives from the United States Trade Representatives' office told Reuters that the U.S. wished to resolve all remaining issues at these September talks. The exact date and location for these talks has not been released to the public, nor was a draft of the agreement after the last round of talks in Switzerland.

Political uncertainty in Australia may hamper its role in approving a final ACTA draft, as the nation awaits negotiations between the two major parties and independents to determine whether the ALP or the Coalition will form government.

In the meantime, Australia's ACTA representatives from the Department of Foreign Affairs and Trade, the Attorney General's Department and IP Australia are governed by strict 'caretaker conventions' that limit the passing of new laws or signing of treaties until a government is formed.

Specifically, the caretaker conventions [PDF] note that a lack of political certainty "gives rise to particular issues" when it comes to international negotiations.

"The government ordinarily seeks to defer such negotiations or adopts observer status until the end of the caretaker period," the conventions note.

"If deferring involvement or adopting observer status is not feasible, the Government could limit its role to providing information on its past position, without committing the incoming government to that position."

DFAT was unable to comment on its current status in ACTA talks but told iTnews it would adhere to the caretaker conventions.

In terms of past positions, DFAT has insisted that Australia intends not to change domestic law to suit the treaty, but instead wants only to play a part in helping convince nations with looser intellectual property protections to catch up to Australian standards.

With that in mind, adopting "observer status" would quite possibly be a preferable position for Australian negotiators.

But should the other parties (nations) to ACTA insist on a speedy conclusion to discussions for commitments to be put to paper, a leaderless Australia will present a problem.

The only way Australia could still sign ACTA whilst in caretaker mode would be if both major parties took a view to sign it.

"If it is necessary for the Government to participate fully in the negotiations, it should advise the other parties to the negotiations that any outcomes will need to be authorised by the incoming government, or it could seek the Opposition's agreement to negotiating positions," the caretaker conventions state.

Concerned Australian lobby groups and academics have thus far contacted the Greens and now plan to contact other Independent Senators responsible for shaping the next Australian Government to outline their concerns over the treaty.