Pat Conroy (Charlton, Australian Labor Party) Share this | Hansard source

It is rare, I agree, but I am glad to be able to throw you a bone. I will disagree with you a bit later, so do not get too excited. The bill proposes a single patent application and examination process and reduces duplication in the process of applying for patents in Australia and New Zealand. It changes various acts in relation to retention of documents so that IP Australia is only governed by the Archives Act, as well as making some technical corrections and rectifying some drafting oversights. These measures are all designed to improve efficiency and consistency in the area of IP—and, as the last speaker said, to reduce red tape.

This bill has been a long time coming.    The Labor government introduced a similar bill last year. However, this current version deserves some scrutiny—because it is in both its similarities to and its differences from the former bill that we can see the contrast in values between those on that side of the House and those on this side, particularly when it comes to support for science, innovation and emerging industries.

I will deal with the similarities between this bill and Labor's bill first. Despite their vocal—and in some cases ludicrous—objections to the former bill, the government have offered up an almost identical set of amendments relating to the WTO's TRIPS Protocol.    As I said earlier, these amendments have been a long time coming. It was 1995 when the TRIPS Agreement came into force, from which global minimum standards for intellectual property regulation with regard to pharmaceutical products were applied for the first time. Since the Doha Declaration in 2001, the scope of the TRIPS Protocol has been viewed from the perspective of the simple goal of 'promoting access to medicines for all'—because the right to be healthy is a fundamental one. It is a basic human right and medicines play a crucial role.

Patenting is important because it provides an incentive for innovation, particularly in the pharmaceutical sector, where there is a high level of expenditure on research and development, as well as on production technologies. Indeed, were it not for the patent process, many pharmaceuticals would simply not be developed and the opportunity for them to benefit society would not exist. But generic drugs also play an important role in ensuring the supply of medicine at affordable prices and there is an undeniable social benefit to the distribution of these products in developing countries, particularly in response to the outbreak of sudden health crises or the prolonged spread of disease.

This bill will enable manufacturers of generic medicines to apply to the Federal Court for a compulsory licence to make and export patented products to the least developed countries that are experiencing a health crisis of this kind. According to the World Health Organisation, there are over 100 countries currently experiencing one or more serious epidemics. In 2011, an estimated 262 million people were infected with malaria, HIV-AIDS or tuberculosis. This caused 3.8 million deaths. Most of these were in developing countries which do not have the capacity to manufacture or distribute the medicine which is needed to save people's lives.

Australia is a compassionate country and Australians would be rightly proud of their legislators for enabling this protocol within the framework of our IP laws.    It must be noted, however, that the course of this legislation in this place has not been smooth. I was astounded by the contribution of the member for Bowman. The first half of his speech was very well considered and, I think, a great contribution to the debate. The second half was a frolic into rewriting history in which he had the gall to condemn the Labor Party for not progressing this bill while we were in government! Why did we not progress this bill in government? It was because those on the other side opposed it. If you look at the Votes and Proceedings for 24 June 2013, it shows there were 68 members who voted against the second reading of the bill, including many on the other side now. There were some particularly vocal opponents, including the former member for Indi, Sophie Mirabella, and the member for Tangney, who remains in parliament today. They were concerned that, in the spirit of the humanitarian principles of the TRIPS protocol and in accordance with the exclusions within it, Australia was not prepared to refuse assistance to a country in need should it not be a member of the WTO.

In fact, Ms Mirabella in this place mused that not withholding life-saving medication to non-member countries would reduce the incentive for them to join the WTO—a perverse notion that effectively holds sick people and vulnerable people to ransom. Let me repeat: Ms Mirabella was arguing that this bill should be opposed because giving free or cheap medicine to developing countries to help them solve epidemics would reduce their incentive to join the WTO. What a heartless and sickening idea.

Dr Jensen, the member for Tangney, took the idea even further. He accused the former Gillard government of embarking on treason by allowing this provision. When questioned on this matter, Dr Philip Noonan, the then Director General of IP Australia, said:

It is certainly possible to say that maybe the TRIPS agreement should not extend to countries like East Timor, but the bill very clearly, in the explanatory memorandum, adopts the policy position that it should extend to every country, because if a country were to come to us and say, 'We have a health emergency; you're the only one that can help us,' then it would just be an unreasonable position to say, 'No, you don't belong to a particular club; we can't help you.'

What a wise contribution by Dr Noonan. Those on the other side, led by Ms Mirabella, argued that we should let these people die, because not doing so reduces their incentive to join the WTO. Dr Jensen, as I said, suggested that it was a treasonous act by the Labor government. By his logic, the Abbott government is now pursuing a treasonous course of action by including in this legislation provisions that make it very clear that we will provide these medicines to non-WTO countries.

I am pleased to see that the Liberal government has come to the realisation that we were right, and that it is extending the scheme to non-WTO members—as Canada, Norway and Switzerland have already done. This will be particularly important in our region, as it includes countries, like Timor Leste, who have not joined the WTO. So I am very glad to see that the Abbott government is rejecting the flawed, cynical and, quite frankly, perverse policy position of Ms Mirabella and the member for Tangney.

This bill differs from last year's version significantly through its omission of Crown use provisions, which allow the government to use a patented invention without the owner's authorisation or first negotiating a licence for the services of the Commonwealth or state. These amendments would have delivered certainty to the government and the community that the patent system would not prevent us acting in the public interest, should the need arise, in one of the most fundamental services the people of Australia expect us to provide—health care. This is particularly relevant to the area of gene patents, where there has been growing debate over recent years with regard to their use in health care.

As I have already said, there is a need to balance the known safeguards that patents provide with the right for patients to access treatments in a timely and affordable way. There is also a need to ensure that progress is not stifled and that policy settings are right to give scientists the confidence to pursue their research, with the prospect of a return on their investment. Labor's amendments to the Patents Act would have done that. They would have ensured that our policy settings were keeping pace with technological advancements and that the public's right to access health care was preserved, whilst supporting our world-leading medical research sector, which is so valuable.

Labor's bill was developed in response to a string of research on this issue, including the 2004 Australian Law Reform Commission report on genes, the 2010 Senate committee report on gene patents, the 2011 Senate Legal and Constitutional Affairs Legislation Committee report on the Patent Amendment (Human Genes and Biological Materials) Bill 2010, and the 2013 Productivity Commission report into the compulsory licensing of patents, which made a very clear recommendation that the bill would have implemented. It also built on the former Labor government's legislation which allowed researchers to carry out their research without being blocked by patents.

The government's removal of the Crown use provisions is symbolic of this government's lack of support for innovation and science in this country. This is a government that has no science minister. For the first time in over 60 years, we do not have a science minister. This is a government that has cut the CSIRO budget by $114 million. This is a government that builds on the Howard government's disgraceful legacy of slashing the R&D tax concession when they came to power in 1996. This is a government that, so far, has rejected the $350 million venture capital fund put forward by Labor that would support innovative small businesses. This is a government that, so far, has rejected the $500 million precincts measure that would really drive innovation in this country.

This bill contains some very laudable measures, which I applaud, but it omits significant provisions that would advance research in this country and provide certainty for government and the community. It builds on the appalling legacy of those opposite in rejecting science, rejecting funding for science, rejecting innovation and rejecting funding for innovation. Nevertheless, Labor will support the current bill because it contains a number of important measures that we agree with and that will provide a better regulatory framework within which technologies can develop and new industries can emerge. Perhaps most importantly, it can help save the lives of those most in need.

We remain concerned about the removal of Crown use provisions and expect that the government will continue to review this and introduce separate legislation to ultimately amend the Patents Act. We will not, as those opposite did when they were presented with the same opportunity, oppose these measures simply for opposition's sake. We will not, as some of those opposite did, make vehement statements against what is essentially a compassionate and humanitarian act. Rather, we will support the government and commend it for finally upholding Australia's commitment to the World Health Organization and for including the TRIPS protocol in our IP laws.

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