Why the Australian government has so far failed to support a patent waiver for vaccine equity

Academics have told SBS News they fear the influence from pharmaceutical companies is holding the Australian government back from publicly supporting the waivers for COVID-19 vaccines.

The 'vaccination on wheels' bus initiative was launched by the Kolkata Municipal Corporation on June 3, 2021.

The 'vaccination on wheels' bus initiative was launched by the Kolkata Municipal Corporation on June 3, 2021. Source: AAP

The Australian government is under increasing pressure to follow the lead of the United States and New Zealand in publicly supporting moves to temporarily waive patents on COVID-19 vaccines.  

A group of 150 Australian lawyers and legal scholars have signed an open letter urging Prime Minister Scott Morrison to back the waivers, while 50,000 have signed a similar petition presented to the Department of Foreign Affairs and Trade. 


The open letter and petition ask the federal government to support a proposal by India and South Africa to promote vaccine equity through changes to WTO trade rules. 

The legal scholars and lawyers said the temporary waiver of patents on COVID-19 vaccines under WTO trade rules would "promote access to medicines for all" and level the playing field for developing countries as they individually negotiate with pharmaceutical companies to secure vaccine supply. 

"Critically, the longer it takes to vaccinate the world, the more likely it is that new variants will develop that could potentially render current vaccines ineffective. Already multiple SAR-CoV-2 variants are circulating globally," the open letter reads.

"...We therefore call on the Australian government to publicly support the TRIPS waiver, not just for vaccines, but for all medical tools necessary to prevent, contain and treat COVID-19."

Legal academic Julia Dehm from La Trobe University co-ordinated the open letter. She said she was motivated to organise it after reflecting on the personal impact of the pandemic. 

"My daughter - who is now 10 months old - was born at the peak of Victoria's second wave last year and she is yet to meet her paternal grandparents who are in India. Thankfully, they have been vaccinated.

"But we watched the news about the unfolding COVID-19 disaster in India with horror. And it really struck me as something really important that we could do here in Australia, that would have an impact around the world."

'People before profits'

The waiver proposal was put forward by India and South Africa in October 2020 to allow the WTO rules on intellectual property rights for COVID-19 vaccines to be suspended for several years to help accelerate production and distribution of vaccines. 

Amnesty International Australia and other civil society groups helped collect signatures for the petition, which was personally delivered to DFAT's Sydney office on Monday.  

The New South Wales and Midwives Association, the Australian Fair Trade and Investment Network and Australian India diaspora group, The Humanism Project, also supported the petition. 

Tim O'Connor from Amnesty International said the petition urges the Australian delegation at this week's WTO meeting to take a leadership role and openly support the proposal on the patent waiver. 

"Under international human rights law, countries have obligation to work together to respond to this pandemic.

"Wealthier countries like Australia, we're one of the top 10 richest countries in the OECD, we have a special responsibility to assist states that have fewer resources.

European Council President Charles Michel with Director-General of the World Trade Organization Ngozi Okonjo-Iweala in Brussels on 19 May 2021
European Council President Charles Michel with Director-General of the World Trade Organization Ngozi Okonjo-Iweala in Brussels on 19 May 2021 Source: AFP

"We need to get away from this me first approach and we need to think about getting everyone vaccinated because until we do, none of us will be safe."

Michael Whaites from the New South Wales Nurses and Midwives Association, said members supported the petition because they have seen the effects of the slow pace of vaccination first hand. 

"For us, this is a really important issue. We know that healthcare workers around the world are on the frontline trying to fight the COVID pandemic. And we know that 17,000 healthcare workers have died so far at last count.

"We can't understand why our government is hesitating. We're devastated to know that our Prime Minister may not be sharing those values of people over profit."

Dr Haroon Kasim from The Humanism Project said the pandemic has had a devastating impact on members of India's diaspora community in Australia and that has strengthened the calls for the waiver on patents proposal. 

"Many of us dread opening our phones to see calls or WhatsApp messages because almost every day people have loved ones who are suffering from COVID-19 crisis, who are not finding beds, and who are dying every day."

Federal government says millions allocated to vaccine access in Asia Pacific

In Senate Estimates on Friday, Foreign Minister Marise Payne confirmed the federal government had yet to take a position to publicly support the patent proposal by India and South Africa - which is now backed by more than 100 countries out of 164 WTO member nations. 

She said vaccine access is being facilitated by the government's bilateral agreements with countries like Papua New Guinea and contributions to the UN COVAX initiative.

"The government really contends that a $623 million contribution to our region, in addition to our $130 million contribution to the COVAX, our contributions to CEPI, to Gavi - are significant contributions by the Australian government to address vaccine access and health security particularly in our region."

A spokesperson for the Department of Foreign Affairs and Trade said Australia is continuing its negotiations with WTO members on the idea of waiver on COVID-19 vaccines. 

"Australia strongly supports equitable access to safe and effective COVID-19 vaccines as a key means of ending the acute phase of the pandemic, in our region and globally," the spokesperson told SBS News. 

"Australia is working closely with WTO members, including the United States and India, to further support equitable access to safe and effective COVID-19 vaccines and find a positive and consensus-driven solution. This includes on proposals for a waiver of intellectual property rules and a transition to text-based negotiations."

The US last month said it now supports a temporary waiver on COVID-19 vaccines.

"The administration believes strongly in intellectual property protections, but in service of ending this pandemic, supports the waiver of those protections for COVID-19 vaccines," said United States Trade Representative Katherine Tai.

"We will actively participate in text-based negotiations at the World Trade Organization (WTO) needed to make that happen."

Trade Minister Dan Tehan in March said there are concerns about the impact of patent waiver on protections for the "millions of dollars that has gone into the research to create these vaccines".

New Zealand's trade minister, Damien O'Connor, said the barriers blocking timely vaccine access need to be addressed.

"Having looked at all those challenges, if it is intellectual property that is holding us back, I think that there will be consensus reached at the WTO. And I think as APEC economies, we certainly are going to ask for that to be considered seriously," he said.

Australia 8,000 doses of its COVID-19 vaccine supply to Papua New Guinea in March this year.
Australia 8,000 doses of its COVID-19 vaccine supply to Papua New Guinea in March this year. Source: AAP

Dr Dehm said the WTO laws were created at a time when a scenario of a global pandemic like COVID-19 had not been envisioned - and now there is a need to reform the rules with this temporary waiver proposal, but also longer-term change. 

"The global trade agreement does anticipate for the necessity of public health for there to be exceptions to the IP protections, but that is generally for a much more localised epidemic or other supply issues, rather than these exception circumstances.

"Because of the complexity in a lot of this area, the current measures like compulsory licensing just aren't adequate to deal with the scale of the COVID-crisis that the world is facing."

Dr Patricia Ranald from the Australian Fair Trade and Investment Network said there is a concern that the influence of pharmaceutical companies may be the reason why the Australian government has not come out in support of India's proposal on a patent waiver. 

"I think it [the lack of public support from the Australian government for the patent waiver] is because they are being lobbied by the pharmaceutical companies. That is my only possible explanation.

"The speeches from the government have been to say that they will contribute to COVAX and other aid-based efforts which is welcome, but it is not going to be enough [to vaccinate populations in developing nations like PNG and India].

"These efforts do need to be stepped up. But also to tackle the scale of the problem you do need the waiver."

Opponents of the waiver said they do not think it is necessary to resolve delays in vaccine supply. 

The European Union on Friday put forward a counter proposal to the patent waiver, saying the existing rules would suffice, and instead advocating for measures such as encouraging vaccine makers to enter licencing and manufacturing partnerships in developing countries.

Ms Ranald says the pandemic has shown the need also for longer-term reforms to deal with the possibility of future pandemics.

"Those rules themselves are very clumsy and slow [developed in 1995] and they still require the government to apply to the particular pharmaceutical company in a process that can take years.

"When you think about it is strange that the World Trade Organisation, which is meant to be about free trade and competition and eventually lower prices through free trade and competition - some of the rules are being used to protect monopolies in the context of the pandemic."

The World Health Organization in March called for countries to work towards "a new international treaty for pandemic preparedness and response".

"This includes greatly enhancing international cooperation to improve, for example, alert systems, data-sharing, research, and local, regional and global production and distribution of medical and public health counter measures, such as vaccines, medicines, diagnostics and personal protective equipment."

9 min read
Published 8 June 2021 at 11:54am
By Biwa Kwan
Source: SBS