House debates

Monday, 24 June 2013


Intellectual Property Laws Amendment Bill 2013; Second Reading

6:33 pm

Photo of Sophie MirabellaSophie Mirabella (Indi, Liberal Party, Shadow Minister for Innovation, Industry and Science) Share this | | Hansard source

In a number of respects I am disappointed that it is necessary to rise to speak on the Intellectual Property Laws Amendment Bill 2013. It should have been quite clear by now to the people in the Labor Party who are responsible for this bill that it is simply not ready for introduction into the parliament. I am sure this is of no concern to some on the other side of the House who seem to cling to the view that the success of this parliament is marked and should be judged exclusively by how many pieces of legislation have been introduced during its life. To put it mildly, this bill represents another example among many of poorly conceived legislation and poor drafting from the government. When I watch yet another attempt being made to ram a bill through the House in disregard of various third party criticisms of its content, I find it hard to believe that this can really be the final sitting fortnight of two terms of a Labor government. You would think after nearly six years of practice it surely should have learned some lessons about sensible legislative process by now. Obviously it has not.

Sadly, what makes all of this worse is that the basic intent of the bill is fine. Obviously the coalition is not philosophically opposed at all to sensibly amending the Patents Act to increase the efficiency and effectiveness of Australia's intellectual property system, as stated as the intent of the legislation in the explanatory memorandum, but there is nothing wrong in principle with pursuing changes that, for example, create better arrangements under which Australians can export pharmaceuticals to developing countries in order to help them address public health problems. So it should not have been a hard task to bring the parliament together in support of a well-drafted bill that advanced that kind of aim. It is very clear that the preparation of this bill has been both rushed and botched and the coalition cannot in all good conscience simply let this go through in its current form. This is especially so when individuals such as Luigi Palombi and groups such as AIPP Australia and the Intellectual Property Committee of the Law Council of Australia have made it clear to us that there are a number of significant problems with this bill and that its passage should not be expedited.

That is before we get to the problem, a very familiar recurring one with this government, that clearly many affected stakeholders had not been adequately consulted. In fact, in some cases they were not aware of the existence of the bill until we sought comment from them about it. Among many potential problems with the bill there are clearly at least two sets of inconsistencies between the content of clause 160A and the content of the Australia-US FTA. Article 17.9.7 of the FTA allows for Crown use of an invention without authorisation by the patentee only in the case of public non-commercial use or national emergency. But this legislation takes it much further. This legislation now proposes to allow application of Crown use of an invention to a much wider set of contexts. Under this bill, the Crown could use inventions without authorisation in any situation in which such use is considered necessary for the proper provision of services, where those services are primarily funded by the Commonwealth or a state. If it is passed, it seems to us that the bill would also override the conditions of article 17.10.4(a) of the FTA which require that, in respect of regulated goods such as pharmaceuticals, a product cannot be marketed where the product is claimed in a patent, at least without the clear consent of the patent owner.

There are some further serious questions around whether the passage of this legislation would place Australia in breach of a number of its obligations under the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights Protocol, or TRIPS as it is commonly known. Firstly, the bill's wording defies the 2003 decision made by the WTO General Counsel that a country can grant a compulsory licence to produce and export pharmaceutical products to what is termed 'an eligible importing member', where that eligible importing country is a member of the WTO. Instead, the legislation clearly says that such a country does not have to be a WTO member at all. I might also stress that one of the reasons for the General Counsel's decision to limit waivers under article 31(f) of TRIPS in such a way to member countries was that it provided a clear incentive for nonmembers to join the organisation. To add to that, any sensible reading of the WTO's decision would suggest that to be classed as an eligible importing member, that member would need to have registered its intention to import. But in stark contrast to that principle, this bill allows any person at all to apply for a licence and therefore to do so in an ad hoc way. To compound the issue, the WTO requires an eligible importing member to have made a prescribed notification to the council for TRIPS as a precondition for the requirements of article 31(f) to be waived. But that requirement clearly cannot be practically enforced if the conditions relating to registration are so significantly watered down in the first place.

We are also dubious about whether there is genuine consistency between the WTO approach, on one hand, and the provisions that appear in this bill, on the other, that allow for orders for ancillary compulsory licences and cross-licences. That begins with the changes in the bill that seem to permit compulsory licences to be granted for blocking patents yet do not appear to be consistent with the obligations outlined in article 31(f). More to the point, the provisions in the bill relating to ancillary compulsory licences and cross-licences give rise to what are surely a series of unintended consequences. In fact, it has been put to the coalition by a number of parties that the provisions of clause 136F are so odious that they should be removed from the bill altogether. They have the domino effect of making other clauses, like clauses 136H, 136J, 136L and 136M, unworkable as well. Moreover, the drafting work that has been undertaken on the bill in the explanatory memorandum seems to have taken next to no account of the findings of the Productivity Commission report on compulsory licences that was publicly released at the end of May, only a few weeks ago.

That report contained a very specific recommendation that the government should seek to remove altogether section 136 of the Patents Act. And yet the government has not only failed to do that but has significantly extended the reach and force of section 136 instead. It also seems to be a strange piece of timing, to say the least, that this bill is being introduced not only straight after the Productivity Commission report has been completed, but also when the government continues to delay publicly releasing the report of the committee that has conducted its pharmaceutical patents review. That critical work was completed in May, but no-one seems to be clear on when the findings of the panel will be released let alone be met with a response from the government.

The introduction of this legislation clearly should have been part of a coordinated and holistic approach to remedying existing problems in the patent system. But in many respects the decision to do the reverse has been a metaphor—a metaphor for Labor's erratic actions in the development of this bill more generally. It is symptomatic again of Labor's muddle-headed approach to so many of its decisions and actions in the innovation, industry and science portfolio and its unwillingness to take responsibility and to be accountable for its litany of mistakes.

Among many other examples, I am reminded of the criticisms made by the government's own hand-picked expert adviser on innovation, Terry Cutler, who continues to make pointed critiques of the government's incapacity to understand, let alone implement, almost anything that he has advised on or told the government to do, especially in relation to the strangling of the R&D tax incentive and activity in Australia, such a crucial plank of our future economic success. I am also reminded of the government's stubborn unwillingness to bring the CSIRO to account for a series of inaccurate and misleading statements that have been made to the Senate estimates committees, including the recent incomprehensible answer to question AL156 which says that no CSIRO employee provided false evidence under oath during cross-examination in the AAT case involving Martin Williams, when an analysis of the transcript of that case suggests that there are at least 100, and more precisely around 128, separate instances of CSIRO officers providing false evidence in the case.

All of this takes me back to these sweet-sounding words that Labor shouted from the rooftops upon the release of its so-called New Car Plan, only for its car industry policies to subsequently completely unravel with tens of thousands of jobs lost, Mitsubishi's local manufacturing gone, Ford's local manufacturing sector end and now Holden anxious about its future. It is particularly disappointing that false promises and undertakings have now been made yet again, with the presentation to the parliament of legislation that plainly does not honour its stated intent and that simply should not be passed. The minister should have appreciated the very constructive efforts of the shadow parliamentary secretary, Senator Colbeck, to identify the succession of flaws and to improve this legislation before us. He should have shelved the bill at least in its current form, gone back to the drawing board and started again, not to mention that in such circumstances the time, or more specifically, the lack of it, that has been provided to the Standing Committee on Social Policy and Legal Affairs to consider and report on the legislation has been utterly inadequate. Indeed, my colleague and one of the members of that committee, the member for Pearce, provided the House with a clear insight into those problems last Wednesday morning. In essence, the inquiry was, extraordinarily, only allocated one hour of hearings and there was no call for submissions. Coalition members were also unable to attend the committee meeting where the report was discussed because there were problems and inflexibility in finding a time from a very limited range of options that was mutually suitable.

It is also my understanding that in addition to what the member for Pearce told the House, coalition members of the committee were not even able to write a dissenting report because the process was so rushed that they were not even given a copy of the draft committee report until shortly before she was required to address the House. This is a disgraceful precedent to set. We have processes in this place to ensure adequate scrutiny and discussion of intended legislation. There is an utter and arrogant disregard for that process which could end up having extraordinary implications and unintended consequences. But again, there is a nil-care factor from this government.

In characteristic fashion, Minister Combet has neither welcomed nor listened to sensible and well-meaning advice and he has presided over a process that has been appallingly and poorly handled. I would urge those members who are in any doubt about whether to pass this bill, not to do so. There will be many problems to which it is likely to give rise and the best course at this stage for the government is to start rewriting the legislation and, as part of that process, drafting some sensible, practical wording that will allow such damage to be avoided.

6:47 pm

Photo of Melissa ParkeMelissa Parke (Fremantle, Australian Labor Party, Parliamentary Secretary for Mental Health, Homelessness and Social Housing) Share this | | Hansard source

I welcome the Intellectual Property Laws Amendment Bill 2013 and thank the Minister for Industry and Innovation, Greg Combet, and Parliamentary Secretary Yvette D'Ath for bringing forward these reforms which represent an important step towards improving the current patent system.

Some of the flaws in the system were highlighted a number of years ago through the unacceptable behaviour of a patent holder. In July 2008 an Australian company, Genetic Technologies, which had acquired the exclusive patent rights to a number of Australian patents granted by IP Australia to Myriad Genetics of the breast and ovarian cancer genes, or BRCA genes, wrote to all of Australia's publicly funded clinical laboratories demanding that they immediately cease providing Australian women with BRCA genetic testing or they would be sued for patent infringement. No government at the state or federal level or the regulator, IP Australia, stepped in to challenge the conduct of this patent holder. It was only a public outcry that forced Genetic Technologies to back down on its threats.

Crown use is an important safeguard in the Patents Act that allows governments to access patented inventions without the consent of the patent owner. However, despite the fact that Crown use provisions have been in the Patents Act since 1903, they have rarely been used in this country. The Productivity Commission, in its recent report into compulsory licensing of patents, found there was uncertainty around the scope of the Crown use provisions. This bill seeks to clarify the operation of the Crown use provisions so that governments are not impeded by patents which are in effect Crown grants, from acting in the public interest.

Crown use can be exercised when a government has the primary responsibility for providing or funding the provision of the service. This means that governments can intervene to address unreasonable patent holder conduct that could result in patients being denied reasonable access to health care, such as occurred with Genetic Technologies unreasonably refusing to allow Australian laboratories to test for breast cancer.

I hope that it would also deal with a situation that was highlighted in the Senate Community Affairs References Committee inquiry into gene patents. During that inquiry the Peter MacCallum Cancer Centre gave evidence that its research into breast and ovarian cancer had been delayed by two years and ended up costing three times as much because gene or patent holders Myriad and Genetic Technologies refused to grant it permission to use the genes in its research. To the extent that there may have been uncertainty in the operation and scope of the Crown use provisions in the Patents Act, with this amendment there will now be no impediment to governments in Australia, state and federal, taking action in the public interest to prevent despicable behaviour by corporations like Genetic Technologies and Myriad that have demonstrated repeatedly that they are motivated only by greed and self-interest.

Another aspect of the bill will be very important in assisting developing countries to access vital medicines. Much of the world's population is suffering from treatable diseases including HIV AIDS, tuberculosis and malaria and yet developing countries are often unable to make essential medicines themselves and cannot afford to buy them at normal market prices. A 2010 study commissioned by the World Health Organisation and Health Action International shows that the continuing high price of medicines is having catastrophic effects on the world's poorest people. The WHO has stated that the availability of generic products is a major contributor to reducing the cost of medicines. Of course we have seen that here in Australia with the cost to the PBS being dramatically reduced whenever drugs come off patent and are able to be produced generically.

The TRIPS protocol—that is, the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights Protocol, agreed by the General Council for TRIPS in 2005 and accepted by Australia in 2007—enables pharmaceuticals to be exported under compulsory licence. As noted in the bill's explanatory memorandum, the aim of the protocol is to encourage patent owners to either practise price differentiation and provide medicines to least-developed and developing countries in need 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, then the protocol provides a mechanism to force the patent owner to issue a compulsory licence. This bill will implement the TRIPS protocol in Australia by amending the Patents Act to enable the Federal Court to grant compulsory licences to generic pharmaceutical manufacturers to make an export a patented pharmaceutical product. Patent holders will receive adequate compensation for the use of their patent.

Another welcome aspect of the bill is the amendment of the Plant Breeder's Rights Act to extend the jurisdiction of the Federal Circuit Court to include plant breeders' rights, thereby avoiding the need for expensive actions to be commenced in the Federal Court. In addition, the bill allows for a single trans-Tasman patent attorney regime and examination process for Australia and New Zealand, which has been agreed as part of the trans-Tasman single economic market agenda and which will reduce duplication and costs.

Finally, I would note that the amendments in the bill are a welcome first step along the path of greater and long overdue reforms of a flawed patent system. The patent system is a notable exception to the principle of competition that is supposed to underpin the Australian economy. Patents are monopolies sanctioned by law as a way of encouraging inventive contributions.

The government principle on which the patent system is based is that there must be an invention; however, currently, the Australian patent system allows the patenting of things that no-one invented: things that are natural, things that make us who and what we are—our genes. The practice of IP Australia over the past more than two decades has been to grant patents over human genes where such genes have been isolated from the human body and to grant patents over diagnostic tests that consist only of mere comparisons of genetic sequences. Therefore corporations can patent genetic materials that they did not invent and, by patenting simple genetic tests, they can exclude pathologists from looking at patients' DNA sequences to assess the risk for disease. In these ways, corporations gain legal monopolies over genetic materials to the exclusion of scientific and health researchers and practitioners. This is not some theoretical issue but has very real ramifications for scientific and health research as well as clinical practice and, ultimately, is detrimental to patients.

I referred earlier to the example of Genetic Technologies ordering public laboratories not to test for breast cancer and to their denying the Peter MacCallum Cancer Centre permission to use the breast cancer genes in their research into breast cancer. Another example was provided in the ABC Four Corners program Body Corporate in September 2010. That program highlighted the fact that doctors at Westmead Hospital were sending children's DNA samples to Scotland for epilepsy testing rather than paying the fees and royalties demand by Genetic Technologies, which holds the patent right for the epilepsy gene and genetic test. This company holds these rights, despite the fact that most of the research to identify the epilepsy gene and to develop the genetic test for epilepsy was publicly funded.

I am happy to say that a significant development has recently occurred that will change the way that companies like Myriad and Genetic Technologies are able to operate in the future. Just over a week ago on 13 June, the US Supreme Court delivered a 9-0 unanimous decision finding that isolated genes are not patentable in the Myriad case. During the hearing of the case, Justice Sotomayor noted that she could bake a chocolate chip cookie from natural ingredients—salt, flour, eggs, butter—and that, if she combusted those ingredients in a totally new way, she could get a patent on that. But she could not imagine getting a patent on the basic items of salt, flour and eggs simply because she had created a new use or a new product from those ingredients.

Similarly, there is no objection to patents being granted over actual inventions such as medicines, vaccines, therapies and new methods for diagnosis that use genetic materials in them. The objection is to the patenting of the underlying genetic materials themselves, because (a) no-one invented those materials—they are products of nature; and (b) the patents prevent others accessing fundamental genetic information needed to diagnose disease and develop new health treatments.

This decision that isolated genes are not patentable is consistent with the previous unanimous 9-0 decision of the US Supreme Court in Prometheus v Mayo on 20 March 2012 where the court held that laws of nature, natural phenomena and abstract ideas are not patentable. It noted:

This Court has repeatedly emphasized a concern that patent law not inhibit future discovery by … tying up the use of laws of nature and the like.

The court made the further point that 'monopolization of natural phenomena through the grant of a patent might tend to impede innovation more than it would tend to promote it.' The US Supreme Court decision in the Myriad case regarding the nonpatentability of human genes will be strongly influential and will have serious implications for IP practice here in Australia.

The full Federal Court of Australia constituted by five judges, not the usual three, will hear the appeal of the decision of Justice Nicholas in the Myriad case in Sydney in August. This case too will be the subject of intense local and international scrutiny. It is certainly extremely unusual to have a situation where the same legal principle is being determined at almost the same time by appellate courts in both the US and Australia. In my view, this important issue should have been dealt with administratively or legislatively a long time ago and should not have been left to make its slow and expensive way through the court system here and in the US.

This action is only happening in a court system, one that is stacked in favour of corporations with deep pockets, because of the goodwill and persistence of organisations, including the American Council of Civil Liberties in the US and Cancer Voices Australia here in Australia; the assistance of dedicated lawyers acting pro bono in the public interest; and the courage of many cancer patients such as Yvonne D'Arcy here in Australia and their advocates, including the Cancer Council of Australia, the National Breast Cancer Foundation, Civil Liberties Australia, the Royal College of Pathologists, the Royal College of Surgeons, lawyers like Professor Luigi Palombi, David Catterns, Peter Cashman, Maurice Blackburn law firm and many others to stand up to big pharma.

The patenting of human genes is fundamentally flawed, because knowledge about human genes should not be private property but rather should belong to everyone. This is why when the human genome was decoded 13 years ago, US President Clinton and British Prime Minister Blair issued a joint statement which said:

To realize the full promise of this research, raw fundamental data on the human genome, including the human DNA sequence and its variations, should be made freely available to scientists everywhere. Unencumbered access to this information will promote discoveries that will reduce the burden of disease, improve health around the world, and enhance the quality of life for all humankind.

A couple of weeks ago, here in Parliament House, I attended the 65 Roses event for Cystic Fibrosis Australia where it was noted that the identification of the cystic fibrosis gene was the genesis of the human genome project which has enabled the flourishing of genetics research and the development of personalised medicine.

Medicines are now being tailored to suit particular genetic profiles, thereby ensuring people get the exact treatment for their condition and preventing wasteful ineffective treatments. However, this transformative development in the health field will become more and more difficult, the more that knowledge about genes is privatised and the more that genes become the subject of private property rights in the form of patents, thus preventing scientists and health researchers from getting free access to genes.

I have long advocated for changes to the Australian patents system, in particular to prohibit the patenting of human genes. This bill does not do that but it does implement a number of measures that will improve the system in other ways. I welcome that. I also welcome the government's recent announcement that it would undertake a number of measures to further clarify the patents system and strengthen mechanisms for oversight, including appointing a patent audit committee to advise on patent policy settings and undertake audits of patent approvals for certain technology groups. Commencing consultations on a new objects clause for the Patents Act, and consulting on excluding certain inventions that would be offensive to the public.

This is a public policy debate that will continue until the imbalances and injustices of the present system are overcome. There are many members in this place and the other place of different political stripes who will ensure that this is so.

7:00 pm

Photo of Dennis JensenDennis Jensen (Tangney, Liberal Party) Share this | | Hansard source

The coalition does not support this bill, the Intellectual Property Laws Amendment Bill 2013, and I say so clearly and deliberately so that there is no misunderstanding. The community of IP lawyers and judicious practitioners take issue with the contents of this bill. I put it to the House that it is incumbent on the government to assuage the fears of the community, not for the community to assent to governmental whims. For how else is it to be viewed but as a whim if due process is not put in place? If the most rigorous checks and balances are not insisted upon, what is it but a whim?

If this bill were anything other than a whim, there would be no need to rush it through this ultimate week of this parliament—rushing and rush. Take for example the fact that the Productivity Commission report on the issue is 300 pages long, the explanatory memorandum is 100 pages long, and the bill itself is 60 pages; yet only one day was given to digest and discern this critically important information. This is completely unreasonable, and that is why I am calling for more time to be given to this debate. I beseech the reasonableness of the government to put this bill through the scrutiny that is customary and expected of all other pieces of legislation. This is especially relevant and important given the complex and technical nature of this bill. However, if one is to look at the sorry saga that has become this bill, rushing and haste is one consistent theme.

Again, a standard meeting running for three hours somehow becomes one. Just one day was given to consider the above, and with only two coalition members on the committee. The member for Pearce was unable to attend the final meeting when the opportunity for dissent was available due to a longstanding commitment. This is an egregious affront to decency and common sense. The member for Pearce had signalled her absence well in advance, and the said member is critical of this tale as she has taken it upon herself to independently seek out expert opinion and counsel, such as obtained from many learned and practised IP lawyers. Their concerns were real then and they are real now. Facts and problems do not change just because the leaves do.

The problem of unintended consequences attached to this bill are huge and frightening. Take for example just one aspect relating to the TRIPS protocol. Under the TRIPS protocol signatories to the protocol must be full WTO members, with all the attendant obligations, commitments and constraints. A TRIP, which is the framework under which generics can be issued in times of emergency, when amended, as in the case in this bill, is a noble thing. However, I have questions and concerns.

Is the government giving due weight to the geographic reality of Australia? Many of our neighbours in the region are in the process of getting WTO membership, but are not there yet—and that is the key. If this bill is passed and this amendment to an amendment becomes our standard then, much like a copy of a copy, we get poor results—not only poor results but potentially costly too. If under the TRIPS amended provision the Commonwealth were to provide generic drugs in the event of a pandemic in, say, East Timor—noting here that East Timor is not a WTO member—there is nothing to stop East Timor, or any other non-WTO member, from acting unscrupulously and selling on to generic and occasioning profit contrary to the humanitarian intent.

So what does it mean for Australia? Some may like to see it is a small or trifling matter. In fact, that is the very line the government has tried to use to ram home this flawed piece of legislation. I wish to remind all in this place that breaking an international treaty is no small matter. It is no trifling matter. The Commonwealth exposes itself to the full weight of sanction 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. For the multifarious moments of unintended consequences that may arise upon assent of this bill, I am calling for more cool and more consideration.

Significant, complex law cannot be debated in one hour. Indeed, it would seem to me that because the legislation is significant and complex the minister just wishes it would go away. The minister is doing the 'William Wish Wellington'. Well, Australia deserves a minister less candied and more candid. I urge all to pass through the six schedules of this bill—six schedules affecting four acts. Ministerial insouciance is insanity. Sanguine is not a safe policy.

Looking at the schedules it is clear the minister of the day would be one to challenge the large industrial invested interest stakeholders; a challenge that the Commonwealth would be unlikely to win. This may in time be strategically used and exploited by the larger industrial corporate actors.

Going back to first principles—and as to why I am calling for more time for this bill and hence opposing it—this bill ultimately fails to achieve what it sets out to do. The raison d'etre of this bill was to clarify and improve the existing amendments to the legislation. I am at a loss as to how clarification and improvements can occur when so much rushing has occurred, when so little time has been given to study the reports of the Productivity Commission and when so little consultation with relevant industry stakeholders, such as the Law Council, has taken place.

It should not be the expectation that the onus falls to a member to actively seek out reports. Parliament should have by right and reason all number of relevant experts as a facility at the disposal of a member. I find a one-hour Senate inquiry hardly sufficient to achieve the sole purpose of this bill—that is, the improvement of clarity. I find that having no provision for the member for Pearce to her duty and honour a longstanding and flagged commitment is a disgrace and an insult not only to the member for Pearce but a shameful slur on the character of this government.

I submit that the public record on this debate has been and is bastardised. Think of the two-person committee; think of losing the experience and enterprise of the member for Pearce. Think of the nonsense that is rushing this bill through at five minutes to midnight. Nonsense is what the Gillard government does best. The only 'sense' they know is the 'cents' that come out of my pocket and your pocket, and the Australian people's pockets. More and more, Labor is addicted to spending. That is the nonsense that we are all living under; a nonsense economic model that is fundamentally broken because you cannot spend money you do not have and will not ever have.

I hope the public see why it is nonsense to believe the government on this bill; and why it is nonsense to trust them that everything will work out as IP Australia say it will; and that the small matter of breaking international treaties does not matter. 'Trust in Labor'. That is just unbelievable.

Like soap on a toothbrush or reds in a wash of whites, they always sneak in and they always leave a bad taste. That is what in essence we are being asked to do with this bill. Instead of doing the hard yakka and developing a brand spanking new act that would deliver real solutions, this tired and troubled Labor government has handed down a dirty patchwork of an amendment to an amendment based on irrational exuberance. That is not good enough. It is time to give more time to this bill.

It is time to set the record straight regarding the dissenting report and the many voices of concern that pour across our community. It is time to give mature and responsible government a go for once. The expression goes: 'It is never too late for a change'. If it is too late for Labor, do not let it be too late for Australia. Let clear heads rule on this debate. More time and more consultation makes more sense.

This bill provides no indication as to the process of negotiation; saying simply, 'compensation for the patent holder will be negotiated'. How can such a cavalier attitude be enshrined in the law of the land? Surely our parliament can do better. Better is the better way forward. And there is an obvious and easy way forward: the coalition.

The coalition's approach is to, as a matter of first principles, benchmark our legislative proposals against leading international practice. This is because the coalition appreciates that, with scientific reference to an area like IP, it is complex, detailed and fluid. For those reasons a clear articulation of a procedural framework is necessary. Churchill once said that 'empires of the future are empires of the mind'. The attitude of this Labor government epitomised in this bill is one of 'no matter, never mind'.

I would like to acknowledge the significant work done on this by the member for Pearce. She has done the due diligence that the government, with all of its resources, could have done and indeed should have done. It is shameful that the government chose not to do so and instead is attempting to rush through this ill-conceived legislation. We can do better. Better is a bill that develops hope, reward and opportunity. Better is the coalition.

7:13 pm

Photo of Yvette D'AthYvette D'Ath (Petrie, Australian Labor Party, Parliamentary Secretary for Climate Change and Energy Efficiency) Share this | | Hansard source

I thank my fellow members for their contributions to the debate. It is disappointing to hear those on the other side will be opposing this legislation but unfortunately we hear that all too often in this chamber. I would like to take a moment to thank all of the members of the community who contributed their thoughts and suggestions on this bill. Despite what we have heard from the two speakers on the other side, the proposed legislation covers a wide range of intellectual property issues and is the product of various consultations with stakeholders over a number of years. Finally, I extend my thanks to the New Zealand government for its contribution to the development of the Australia-New Zealand single economic market provisions.

Before summing up this debate, I would like to take the opportunity to note the recommendation made in relation to this bill by the House of Representatives Standing Committee on Social Policy and Legal Affairs and address some comments of the committee's deputy chair, the honourable member for Pearce.

On the issue of TRIPS protocol, provisions applying to developing countries that are not members of the WTO, I note that the TRIPS protocol is designed to help developing countries address public health problems. It does so by enabling access to vital medicines that these countries may otherwise not be able to obtain. Arguably, non-WTO members are the countries that need our help most. These provisions are consistent with the humanitarian principles of the TRIPS protocol, Australia's international obligations and the approach successfully taken by several other WTO members, including Canada, Norway and Switzerland.

The member for Pearce also queried definitions of 'exploit' and 'work' in the bill. The term 'work' has been used for various purposes in the Patents Act. Under the amended Crown use provisions, the Crown retains the right to fully exploit a patent. The term 'work' is used only in relation to prior negotiations with the patentee and does not limit the Crown's rights in relation to use of a patent.

I now turn to the key elements of the legislation. This bill introduces sensible and important amendments to Australia's intellectual property system. Through modifications to Crown use provisions this bill provides the Australian public with greater confidence in the patents system, particularly over access to the latest innovations in health care. Crown use is an important safeguard which, while rarely used, provides the government with the power to be able to make use of patented inventions to serve the interest of the community. The bill clarifies the scope of Crown use, adopting recommendations made by the Productivity Commission.

There has been public concern over patents over genetic material, particularly patents over the BRCA 1 and BRCA 2 gene sequences, which are linked to an increased risk of breast and other cancers. The validity of these patents is the subject of an appeal to be heard by the Federal Court later this year. While the government monitors the progress of these proceedings, this bill gives confidence to the community that the government can act if necessary. It clarifies that the government has the power to intervene in circumstances such as where a patent holder would deny patients reasonable access to healthcare services. On 13 June 2013 the United States Supreme Court found that patents over naturally occurring genetic material were invalid, including patents over the BRCA 1 and BRCA 2 gene sequences. The United States is one of our leading trading partners and we are party to international agreements with the United States that influence our intellectual property system. As a result we will be closely considering the implications of the US decision for Australia.

This bill also recognises the needs of developing countries facing health crisis. Implementation of the TRIPS protocol will allow Australian industry to help the most disadvantaged countries by providing them with vital medicines that would otherwise be beyond their means. In addition, the bill implements agreements between the government of New Zealand and Australia that will provide for a more streamlined business environment across the Tasman. It will also provide parties to disputes over plant breeders' rights with a faster, more cost-effective and less formal way to protect their registered rights from infringement.

Finally, the bill makes minor technical amendments to the Patents Act to ensure that the Raising the Bar Act operates as intended and reduces the costs involved in running our IP rights system by bringing storage requirements for applications into the modern age.

In conclusion, a strong and well balanced intellectual property system is essential to drive the innovation and research that benefits so many Australians. The previous amendments to the Patents Act passed in this House in 2012 did much to assist Australian inventors. This bill further strengthens our intellectual property system for innovators and the Australian public and allows Australian industry to give a hand to our neighbours when most needed. I commend the bill to the House.

Photo of Steve GeorganasSteve Georganas (Hindmarsh, Australian Labor Party) Share this | | Hansard source

The question is that the bill be now read a second time. I think the ayes have it.

An opposition member: The noes have it.

In accordance with standing order 133(b), the division is deferred until 8 pm. The debate on this item is therefore adjourned until that time.