of Free Trade Agreements: The New Zealand/Australia Experience

This makes it all the more imperative to understand the limited cooperation actually achieved on intellectual property matters as a result of the Australian/New Zealand CER Agreement [now known as the single economic market (SEM)]. A simple explanation is that the Agreement itself predates the TRIPS Agreement and was concluded before intellectual property protection was seen as a matter of significance to trade. However, this explanation does not apply to the 2000 Memorandum of Understanding on Business Law Coordination (MOU),¹⁷ which post-dated the TRIPS Agreement but made no provision for harmonization of intellectual property standards, providing merely for exploring potential for coordination on ‘the granting and recognition of registered intellectual property rights’.¹⁸ In the 2006 version of the MOU this has become slightly more specifically a commitment to ‘[d]evelopment of a seamless processing regime for the granting of patents and the registration of trade marks, plant variety (or breeders’) rights and patent attorneys’.¹⁹

Since then New Zealand has enacted the Madrid Protocol in relation to trade mark registration and politicians on both sides of the House have cited a reason for the change as being to align New Zealand’s trade mark system more closely with Australia’s.²⁰ The Minister then in charge of intellectual property policy stated that joining the Madrid Protocol ‘represents a further step towards the Government’s objective of creating a single economic market with Australia – an important objective which I know my predecessor shared the same level of enthusiasm for advancing’.²¹ However, we wonder how much influence Australia really had on New Zealand’s decisions to take the Madrid Protocol path, given that there are many other countries in the world today which are party to this international convention. As far as patent law reform is concerned, the two countries still seem intent on taking their own paths in many respects. New Zealand is mooting a world-wide prior art standard for novelty and inventive step (rather than its current domestic one),²² while Australia is currently contemplating a further internationalization of its own standards with a change from its still partly Australian focussed common general knowledge threshold for assessing inventiveness to one that is international.²³ However, in the Australian case (where the reform is only tentatively being considered at this stage as part of an IP Australia initiated process of consultation on law reform), the recommended change is not on the basis of New Zealand reforms but rather because the current Australian approach ‘restricts common general knowledge in a way that it is not restricted in our major trading partners and under the PCT (Patent Cooperation Treaty), where when in assessing inventive step, common general knowledge anywhere in the world can be taken into account’.²⁴

At the same time there are many areas of difference in the two countries’ intellectual property laws, so it cannot be said that a high degree of harmonization is already present. For instance, Australia and New Zealand currently have different terms of copyright,²⁵ different ownership rules in copyright,²⁶ different defences to infringement of copyright,²⁷ different ways of treating parallel imports of copyright material,²⁸ different innovation thresholds in patent law,²⁹ different treatment of medical uses under patent law, different approaches to functional designs,³⁰ and different categories of trade mark registration.³¹

In New Zealand, consultation is required with a Māori advisory committee on registration of culturally offensive trade marks in the New Zealand Trade Marks Act³² and inventions utilizing traditional knowledge in the current Patents Bill,³³ but there is no equivalent to this in Australia (nor is it contemplated). And New Zealand’s Toi Iho label of authenticity was established with relative ease and is working smoothly, while in Australia the efforts to establish and then maintain a similar label were fraught with difficulties played out on the public stage, with the governing body eventually disbanded.³⁴ While some important steps towards reconciling Indigenous³⁵ and non-Indigenous attitudes to innovation may have been taken as a matter of common law in Australia, these are modest by comparison with the legislative reforms in New Zealand. For instance, in Australia where there is no treaty with the Indigenous population, von Doussa J in Bulun Bulun v. R&T Textiles Pty Ltd ³⁶ recognized that traditional artists may owe (western-style) fiduciary obligations to their communities as a result of the knowledge and skills that have been passed on through generations and used with appropriate permission (in this instance of the Ganalbingu people whose rituals and knowledge the artwork in question embodied) but without going as far as to recognize communal ownership. By contrast, in New Zealand the Treaty of Waitangi acknowledges the community nature of Māori culture³⁷ and the scope of this was debated in the ‘Wai 262’ claim,³⁸ brought by six Māori tribes before the Waitangi Tribunal.³⁹

At very least the latter reveals some fundamental and intractable social divergences between the two countries. Thus, as New Zealand delegate, Captain William Russell—who readily accepted that any union with Australia would have to be on Australian terms—presciently observed at the Australasian Federation Conference of 1890:

[O]ne of the important questions in New Zealand politics for many years to come must be that of native administration, and were we to hand over that question to a Federal Parliament — to an elective body, mostly Australians, that cares nothing and knows nothing about native administration, and the members of which have dealt with native races in a much more summary fashion than we have ventured to deal with ours in New Zealand — the … advance of civilisation would be enormously delayed.⁴⁰

In our experience, such ways of thinking are still strongly adhered to on the part of New Zealand, with a continuing lack of appreciation or understanding of the sensitivity of the issues on the part of Australia. Thus there would likely be a storm of public protest on both sides of the Tasman if either country sought to change its intellectual property laws to meet the other’s standards on traditional culture and knowledge.