Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Hansard source

I indicate to the chamber that in most respects the Intellectual Property Laws Amendment Bill 2014 closely resembles a bill the Labor Party introduced when we were in office but which lapsed with the commencement of the present parliament. The main purpose of the bill is to implement the World Trade Organization's TRIPS protocol. The Trade-Related Aspects of Intellectual Property is an agreement stipulating minimum intellectual property protections for WTO members. Australia has been a signatory to the TRIPS protocol since 2007 but has yet to implement it in legislation.

TRIPS allows for manufacturers of generic pharmaceuticals to apply to the Federal Court for a compulsory licence to produce patented pharmaceuticals and export them to developing countries that are experiencing health crises. It is clearly desirable for Australia to help developing countries in this way. For that reason and because the bill contains other important changes that are long overdue, Labor will be supporting it.

We note, however, a crucial difference exists between the previous government's bill and the present one. The Labor bill would have amended the Patents Act to clarify the operations of Crown use—but this provision has been withdrawn. Crown use is an important, although rarely applied, safeguard that allows governments to use a patented invention for the benefit of the community, without first negotiating a licence. Labor's bill made it clear that Crown use can be exercised when an Australian state or territory government has the primary responsibility for providing or funding a service. The bill sought to clarify the circumstances in which governments could intervene in response to unreasonable conduct by the patent holder that could result in patients not having access to appropriate health care. The measure was included in the bill in response to community concerns about gene patents and their consequences for the provision of health care. Those concerns remain, and we call on the government to monitor closely the conduct of the gene patent holders.

I am reassured by the advice that the present bill does not dilute Crown use provisions already included in the Patents Act. The act allows patent holders to be compelled to licence their inventions to others in a limited range of circumstances. In evidence given in Senate estimates in October 2014, the Director General of IP Australia, the government agency that administers IP rights and legislation, informed me that the Crown use provisions in the previous bill had been dropped from the present bill because of stakeholder concerns. The provisions had been removed so that IP Australia could consult further with stakeholders. What I do like about it is the speed at which all of these things move, given that we signed these undertakings in 2007. The Deputy Director General said:

I can clarify and make the point that currently the Patents Act does have Crown use provisions in it. The components that were removed from the amendment bill were proposed changes to the existing provisions. I do not want you to interpret that there are no Crown use provisions in the legislation at present.

Here I quote Ms Kelly, the Director General:

The bill … has no impact on the current Crown use provisions.

Given the complexity of the IP system and the wide-ranging ramifications of changes in this important area of law, I am pleased to hear that IP Australia continues to consult on the matter.

Labor supports the bill because, as well as implementing Australia's commitment to TRIPS protocol, it will also reduce the cost of litigation for plant breeders, it will pave the way for a single trans-Tasman patent regime for Australia and New Zealand and it will repeal outdated provisions of various acts and correct minor drafting oversights.

According to the World Health Organization, 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 causing 3.8 million deaths. The WTO has tried to address this situation through the TRIPS agreement, which enables a country that is experiencing a serious epidemic to access patented drugs. Under the TRIPS protocol drafted in 2005, member countries with limited or no manufacturing capacity can access patented pharmaceuticals made under a compulsory licence in another WTO country

The TRIPS protocol aims to encourage patent owners to either provide medicines to the least developed countries at affordable prices or to issue voluntary licences to generic manufacturers to provide medicines at affordable prices. If the patent owner is unwilling to do this, the protocol provides a mechanism to force the patent owner to issue a compulsory licence.

This bill, like Labor's 2013 bill, will enable manufacturers of generic pharmaceuticals to apply to the federal government for a compulsory licence to make and access a patented pharmaceutical product to address health crises in developing countries, delivering upon Australia's commitment to the WTO's TRIPS protocol. As I have said previously, Australia became a signatory to the TRIPS protocol in 2007, and legislation to enact that commitment to this important international agreement is long overdue. Even without the Crown use provisions, Labor sought to introduce the previous bill. It is important that we implement a proper mechanism to ensure access to essential medicines for countries in need, and that is why Labor will be supporting the bill.

I have got a few minutes here tonight, so perhaps I should cast some reflections upon some observations that others in the coalition have sought to make on this matter. I am particularly interested in the views of the member for Tangney, Dr Dennis Jensen, who of course presents himself as an alternative minister for science and has expressed strong views on these matters. In 2013, when we sought to process this legislation, Dr Jensen was concerned about the non-WTO member countries being beneficiaries of trips protocol's. He stated that 'the Gillard government is actually rushing into treason'. He said:

I wish to remind all in this place that breaking an international treaty is no small matter. It is not a trifling matter. The Commonwealth exposes itself to the full weight of the sanctions of the WTO. How reckless and irresponsible a measure to endanger the economic sustainability of the nation and the livelihoods of millions. To entrench the budgetary emergency borders on treason. Forgive my incredulity, but the Gillard government is actually rushing to this treason.

I note that, despite his protestations, the current bill was introduced by a government of which I understand he remains a member—and one assumes he has made some allowances for the change in political circumstances, even though there is such a dreadful situation where he is not the minister for science in that government. So it is in line with the approach taken by several other WTO countries—Canada, Norway and Switzerland—and it is consistent with the humanitarian principles of the TRIPS protocol. Of course, to not undertake these measures would be to deny access to countries that need it most, such as Timor-Leste, a point explicitly made in the current bill's explanatory memorandum. So I trust that the member for Tangney is able to continue his education in the process of his acclimatisation to the realities of international medicine and international best practice when it comes to Australia fulfilling its humanitarian obligations, despite his previous objections to this bill when it was a Labor bill.

The key to our intellectual property system is about striking a balance between encouraging innovation and ensuring people have access to new technologies. The patent system is typically important for encouraging innovation in the biotech and pharmaceutical sectors. The high costs and the risks associated with developing new medicines mean that, without the right patent protections, many new products would never make it through the development and commercialisation phase and would therefore never reach consumers. A well-balanced IP system advances the interests of Australian innovators by lowering business costs and by making it easy to access export markets. This bill goes a considerable way towards achieving that aim and, therefore, Labor will support it.