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Michael Kirby's Challenge: Intellectual Property, HIV/AIDS, and Human Rights
Medium (2014)
  • Matthew Rimmer, Australian National University College of Law
In July 2014, Melbourne hosted the 20th International AIDS Conference. The event opened, paying tribute to the late Dutch HIV/AIDS researcher Professor Joep Lange, with his image projected onto a screen, with the accompanying quotation: ‘If we can bring a bottle of Coke to every corner of Africa, we should be able to also deliver antiretroviral drugs.’
Fire in the Blood, Trailer, Documentary In the Jonathan Mann memorial lecture, Michael Kirby — a champion of HIV/AIDS law reform, and a former Justice of the High Court of Australia — emphasized the need to reform intellectual property laws in order to tackle the scourge of HIV/AIDS. He has a longstanding interest in the topic. As he wrote in a foreword to a book on Intellectual Property and Biotechnology, battles over patents in respect of HIV/AIDS research have been waged since the 1980's. Michael Kirby commented in his Melbourne speech:
Without changing the global laws on intellectual property, people will die needlessly. It is as simple as that. Someone must tell those who will not act, the practical facts of life in our world. They cannot expect taxpayers in other countries to shell out, indefinitely, huge funds for antiretroviral drugs if they simply refuse to reform their own laws and policies to help their own citizens.
Michael Kirby stressed that there was a need to value the human right to life-saving medicines. He called upon his friend, the Australian Prime Minister, Tony Abbott, to show leadership on law reform: ‘As a conviction politician and an unabashed conservative, Tony Abbott may be able to help us in this world to reach out to those political leaders, at the coming G20 Summit in Brisbane and in the meetings of the Commonwealth of Nations, to break the deadly logjam of inaction or wrong actions.’
Thus far, despite good intentions, Australia has been slow to implement its international obligations in respect of access to essential medicines. The Doha Declaration 2001 and the WTO General Council Decision 2003 were designed to enable countries to make use of flexibilities under the TRIPS Agreement 1994 to address public health concerns — such as access to essential medicines in respect of HIV/AIDS, tuberculosis, and malaria. In 2013, the House of Representatives in the Australian Parliament passed a bill to enable to export of essential medicines to developing countries and least developed countries. However, before the Senate could debate the bill, Kevin Rudd won a leadership ballot against Julia Gillard, and Parliament was prorogued. As a result, the bill lapsed. The Coalition of the Liberal Party and the National Party won the ensuing election.
In 2014, the Coalition Government introduced a new bill, the Intellectual Property Laws Amendment Bill 2014 (Cth). To his credit, Bob Baldwin, the Parliamentary Secretary to the Minister for Industry, has shown a good understanding of the need for legislative action in respect of patent law and access to essential medicines. Baldwin emphasized in his second reading speech:
Schedules 1 and 2 to the Bill amend the Patents Act to implement the Protocol amending the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights, also known as the TRIPS Protocol. The Howard government accepted the TRIPS Protocol in 2007 and its implementation in Australia is well overdue. The TRIPS Protocol helps developing countries that are suffering health crises such as malaria, HIV/AIDS and tuberculosis to obtain essential medicines from other countries at affordable prices. Millions of people die from such diseases every year. At present, elements of our patent system can make it harder for Australian businesses to provide assistance to such countries.
Baldwin noted: ‘To address this, the Bill will enable Australian pharmaceutical manufacturers to obtain a licence from the Federal Court to make generic versions of patented medicines and to export these medicines to countries with a demonstrated need.’ The Parliamentary Secretary stressed: ‘The scheme will ensure that patents can only be used under strict conditions and that patent owners are fairly compensated.’ Baldwin emphasized: ‘The scheme is also designed to be as easy to use as possible, while ensuring appropriate safeguards are in place and consistency with Australia’s broader international obligations.’
  • Patent,
  • Law,
  • HIV,
  • AIDS,
  • drugs,
  • essential medicines.
Publication Date
July 22, 2014
Citation Information
Matthew Rimmer. "Michael Kirby's Challenge: Intellectual Property, HIV/AIDS, and Human Rights" Medium (2014)
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