EXECUTIVE SUMMARY

The Senate Select Committee on COVID-19 has broad terms of reference to investigate ‘the Australian Government's response to the COVID-19 pandemic; and any related matters.’ This submission to the Senate Select Committee on COVID-19 focuses upon intellectual property, access to essential medicines, and the coronavirus. It considers the Australian Government’s response to legal issues in respect of the COVID-19 pandemic relating to intellectual property, public health, and international trade. This submission considers the challenges and obstacles presented by vaccine nationalism and commercial profiteering during the COVID-19 crisis. It explores the call by civil society, developing countries, and international institutions for a ’People’s Vaccine’. In a wide-ranging survey, the submission examines a number of mechanisms designed to improve access to essential medicines. This report explores the operation of institutions, such as ACT-Accelerator, the Medicines Patent Pool, and C-TAP, which are designed to facilitate the sharing of vaccines, treatments, diagnostics, and health-equipment. Drawing upon past precedents in the biomedical sphere, this study considers the role of patent flexibilities – such as compulsory licensing, crown use, and government acquisition. It also examines the scope for public sector licensing – particularly where there has been public sector funding of COVID-19 related technologies. This submission also investigates the Open COVID Pledge, the role of open licensing, and the development of open innovation models. This report finally looks at Australia’s equivocal position in the debate over the TRIPS Waiver. This submission contends that an endorsement of the TRIPS Waiver by the Australian Government will help boost domestic biomanufacturing of vaccines, treatments, diagnostics, and health-equipment, as well as assist our near neighbours in the Asia-Pacific. Moreover, Australia will show international leadership through its support of a TRIPS Waiver, and hasten the resolution of the current global public health coronavirus crisis.

Recommendation 1

The Parliament of Australia – and the Government of Australia – should endorse the campaign for a People’s Vaccine in order to hasten the rollout of COVID-19 vaccines in Australia, and boost the production and distribution of vaccines in the Asia-Pacific, and the wider world.

Recommendation 2

As part of its humanitarian commitment to reinforce global public health, Australia should provide further support for the ACT Accelerator and its four pillars dealing with diagnostics, therapeutics, vaccines, and the strengthening of the health system.

Recommendation 3

There is a need to ensure a democratic, inclusive representation of civil society in the ACT Accelerator and its four pillars dealing with diagnostics, therapeutics, vaccines, and the strengthening of the health system.

Recommendation 4

The ACT Accelerator and its four pillars dealing with diagnostics, therapeutics, vaccines, and the strengthening of the health system will benefit from greater transparency and accountability.

Recommendation 5

The ACT Accelerator and its four pillars dealing with diagnostics, therapeutics, vaccines, and the strengthening of the health system need to be assessed in terms of their performance in providing for access to essential medicines. 

Recommendation 6

Australia should reinforce the work of the Medicines Patent Pool in the distribution of COVID-19 related technologies. Public sector research organisations, philanthropic entities, and private companies should contribute to the Medicines Patent Pool.

Recommendation 7

Australia should also invest in the C-TAP – the Coronavirus Technology Access Pool – established by Costa Rica and the World Health Organization. Public sector research organisations, philanthropic entities, and private companies should contribute to C-TAP.

Recommendation 8

The Australian Government should encourage intellectual property holders to participate in patent pools – such as the Medicines Patent Pool and C-TAP.

Recommendation 9

The Australian Government should make use of domestic compulsory licensing flexibilities under patent law in order to ensure fair competition, boost public health, and enable technology transfer. 

Recommendation 10

Recalling the scheme established by the Coalition Government, Australia should enable the use of compulsory licensing for the purposes of the export of essential medicines – particularly to developing countries and least developed countries in the Asia-Pacific.

Recommendation 11

The Australian Government should deploy Crown Use provisions and government acquisition powers in the case of market failure in the production and distribution of COVID-19 technologies – such as vaccines, treatments, diagnostics, and other health equipment (such as personal protection equipment).

Recommendation 12

The Australian Government should ensure that publicly-funded vaccines, treatments, diagnostics, and health-equipment are made available to public – and, at the very least, are subject to non-exclusive, flexible, humanitarian licensing.

Recommendation 13

The Australian Government should establish public pharmaceutical entities to ensure that it has the sovereignty capacity to engage in local vaccine production in the future.

Recommendation 14

Australian public research organisations, philanthropic institutions, commercial entities, and governments should consider the use of the Open COVID Pledge – where appropriate.

Recommendation 15

Australia should also adopt models of open licensing in respect of open data, open access, and open publishing to help accelerate scientific collaboration and co-operation during the coronavirus crisis.

Recommendation 16

Australia should also establish scientific infrastructure for open models of innovation in the fields of biomedicine.

Recommendation 17

The Australian Government should end its hesitation and equivocation in respect of the TRIPS Waiver. The Australian Government should instead become a co-sponsor of the TRIPS Waiver in order to boost local production and distribution of vaccines, diagnostics, treatments, and health-equipment – as well as ensure the supply of such essential medicines to the Asia-Pacific region, and the wider world. The Australian Government should support a broad version of the TRIPS Waiver, which includes all forms of intellectual property, and deals with vaccines, treatments, diagnostics, and health equipment required to address the coronavirus pandemic.

Recommendation 18

The Australian Government should establish Australian biomanufacturing centres to boost its sovereign capacity to manufacture vaccines – both during the current coronavirus crisis, and thinking ahead to the prospect and threat of future public health epidemics.