16 December 2002

The Hon Mark Vaile
Minister for Trade
The House of Representatives
Parliament House Canberra ACT 2600

Via Facsimile: 6273 4128

Dear Minister,

I write on behalf of the Australian Consumers’ Association to express our grave concern at the evolution of the negotiations in Geneva on access to medicines.

Apart from the substantive issue involving the welfare of millions, the negotiations seem to be proceeding to an outcome that may seriously affect the consumer movement’s trust in the entire WTO negotiation process. I say this on behalf of an organisation that supported the Uruguay Round despite our reservations about the TRIPS agreement at the time.

If the outcome of the current discussions on paragraph 6 of the Doha declaration on TRIPS and Public Health does not keep faith with the original TRIPS agreement and with the DOHA Declaration, why should consumers then trust any agreement that might be reached in the current global negotiations?

While hard information is difficult to come by, we are concerned about the following possible (and, according to some sources, more or less likely) outcomes:

• A limitation of the agreement to certain diseases such as HIV/AIDS, TB and malaria.
• The exclusion of vaccines and certain medical devices from the scope of the agreement.
• The placing of unreasonable restrictions on the production and export of essential medicines including, but not confined to, a requirement of prior notification and /or approval on a case by basis.
• The potential involvement of the WTO secretariat in the micro-management of trade rules involving issues of public health.
• A limitation on exports from manufacturers in developing countries to any developed country that invokes the compulsory licensing provisions of the TRIPS agreement.
• Demanding commitments from developing countries not to avail fully of the provisions of Par 7 of the DOHA declaration.

These outcomes would not keep faith with the original TRIPS agreement. They would be in flat contradiction of the DOHA Declaration. They would give priority to the political and economic pressures of the pharmaceutical industry over the lives and well-being of millions of people.

These outcomes would also deal a heavy blow to any possibility of gaining strong public support for the current global round of trade negotiations.

The ACA, and Consumers International at the global level, have been concerned about TRIPS and how this agreement might be used for some time. Among other worries we feared that it would place a heavy burden on developing countries and might be used to force them to give priority to enforcing patent rights when they could not provide the most basic needs of shelter, sustenance and security to their people. We have been repeatedly assured that there was sufficient room for manoeuvre in the TRIPS agreement for developing countries to tackle public health needs.

Whatever its original intention or meaning, the TRIPS agreement was (mis)used and (mis)applied in the interests of rich countries and powerful political and economic forces. The US government and the US pharmaceutical industry were the most active in this context but Australia’s record at the moment is not an exemplary one.

The current Australian negotiating position in Geneva would not fulfill the promise of the DOHA declaration. It seeks to place so many restrictions and conditions on access to medicines as to jeopardise the exercise of the rights it purports to promote.

Whatever international agreements may say, powerful economic and political interests can in very large measure determine how they are interpreted, implemented and applied afterwards in practice. To mitigate this factor, the current negotiations should give developing countries clear, unambiguous and ample freedom of manoeuvre to access the medicines that are needed (among many other things) to save the lives of millions. They were supposed to have been able to do that under the original TRIPS agreement and they were promised they could do it under the DOHA Declaration.

Even at this late stage we urge Australia to join the developing countries to press for a much wider, simpler and clearer implementation of the DOHA declaration. The issue of access to medicine is the substantive and important issue here. A bad outcome to the current negotiations could well jeopardise public support for the entire multilateral global trade negotiation process.

Yours sincerely,

Louise Sylvan
Chief Executive
Australian Consumers’ Association

CC The Hon John Howard, Prime Minister (02) 6273 4100
Senator the Hon Kay Patterson (02) 6273 4146
The Hon Ian Campbell, Minister responsible for Consumer Affairs Fax: (02) 6277 3958