In the wake of the Doha Declaration on the TRIPS Agreement and Public Health 2001 and the WTO General Council Decision 2003, there is a need for industrialised nations to implement legislation to enable the export of pharmaceutical drugs to address public health concerns.

I would argue that the Patents Act 1990 (Cth) should make provision for the grant of a compulsory licence over a patented invention in circumstances of ‘a national emergency or other circumstances of extreme urgency, or in cases of public non-commercial use’. Such a measure is necessary to deal with the possibility of public health epidemics that may take place in Australia – for instance, to deal with a future outbreak of the SARS virus or avian influenza.

The Australian Patents Act 1990 (Cth) should also be amended to allow for the export of pharmaceutical drugs to developing countries, as allowed under Paragraph 6 of the Doha Declaration on Public Health and the TRIPS Agreement 2001. There is a need for a regime for access to medicines, which overcomes the limitations of existing models, such as the Jean Chrétien Pledge To Africa Act 2004 (Can). There should be a flexible mechanism to allow for the export of pharmaceutical drugs in an efficient and timely fashion. There is no need, though, for drugs manufacturers to have a first right of refusal. The definition of pharmaceutical drugs, vaccines and diagnostics should be broad. The definition of a national emergency and public health epidemic should be left to individual nations to determine. Furthermore, the legislation should include WTO members, as well as non-WTO members, such as East Timor.

I would urge the Australian Government to play a leadership role in respect of the international debate in respect of patent law and access to essential medicines. Being a passive bystander in this important policy debate does our international reputation no credit. Australia’s support for the Hong Kong Amendment to encode the WTO General Council Decision 2003 in the TRIPS Agreement 1994 will be nothing more than an empty, symbolic gesture, unless it establishes an effective domestic mechanism for the export of pharmaceutical drugs. The Federal Government should lobby for the inclusion of a more effective mechanism than the cumbersome WTO General Council Decision 2003 in the TRIPS Agreement 1994.

I would note that the Australian Government is currently seeking to negotiate a number of bilateral and regional free trade agreements with our trading partners. Such agreements will, of course, feature Intellectual Property Chapters. Already, scholars, such as Dr Charles Lawson, have suggested that the Australian trade negotiators have a ‘cargo-cult’ mentality to bilateral agreements over intellectual property. The Australian Government will gain much credibility and legitimacy in such negotiations, if it can demonstrate a willingness to implement its multilateral obligations under the TRIPS Agreement 1994, with respect to access to essential medicines. Otherwise, the Australian Government will be left vulnerable to the accusation that it has little commitment to a development agenda in respect of international intellectual property.

Furthermore, I would argue that the development of a mechanism for the export of patented pharmaceutical drugs would complement Australia’s humanitarian aid policy in respect of combating infectious diseases, particularly in the region of South-East Asia. There is a need for the Australian Federal Government to reform its intellectual property laws in order to deal with public health epidemics, such as HIV/AIDS, malaria, tuberculosis, the SARS virus, and avian influenza. The provision for a mechanism within the Patents Act 1990 (Cth) to allow for the export of pharmaceutical drugs to tackle such public health epidemics would be a further sign of this serious commitment.