Senator HUMPHRIES (5:26 PM) —Australia stands today on the threshold of a major step forward for the health of our economy and for the strength of our trading position in the world. That step forward comes about because of our intention to sign a landmark agreement with the United States which will open up the US market to access by Australian goods and services as well, of course, as allowing access for US goods and services to the Australian market. I say we are on the threshold because we have not yet crossed it. Why? Because we are involved in a diversion from the task of putting that extremely important US free trade agreement in place.

At a time when the national parliament, arguably, should be fully preoccupied with focusing on the national interest, we are instead focusing on the Labor Party's internal needs and factional game-playing. The Labor Party's 11th hour focus on an amendment concerning the Pharmaceutical Benefits Scheme is not about improving the free trade agreement. As Senator Brandis pointed out, their point on the Pharmaceutical Benefits Scheme is a tiny, narrow point. It is about the opposition leader appeasing his left wing and trade union critics. It is about saving face. It is also about trying to be all things to all people. The opposition leader supports the free trade agreement but also supports the critics of the free trade agreement. Just where does he stand?

Let us put a fact squarely on the table: the Australian Pharmaceutical Benefits Scheme is not under threat from the free trade agreement. Under the PBS, Australians determine which drugs will be listed, what subsidies listed drugs will enjoy and what price Australians will pay for the drugs on the PBS list. That will not change under the free trade agreement. So we know that prices of drugs will not increase as a result of the FTA. The legislation by which the listing and pricing of drugs is undertaken will not change, the Pharmaceutical Benefits Advisory Committee will continue as the gatekeeper for which drugs are listed and which drugs are not, and the PBAC will continue to use cost-effectiveness as the criterion for judging which drugs are listed and which are not.

But the opposition leader thinks he has found a problem with the free trade agreement. He believes it will open the door for drug companies to lodge dodgy patent claims to stymie cheaper, generic drugs from entering the market and being sold to Australian customers. He wants to create barriers to those companies lodging unmeritorious patent claims and he wants to penalise them if they even try to do it, apparently. Of course, he is painting himself as the man who is in favour of cheaper drugs for Australians.

Senator Marshall —That is exactly right.

Senator HUMPHRIES —That might work, Senator, for the six-second sound bite, but is it good policy? In this latest policy position adopted by Mark Latham we are seeing the very recognisable hallmarks of the `shoot first, ask questions later' approach that so typifies your leader. What we are seeing here is an amendment which at best is unnecessary and at worst is unworkable. It will damage the integrity of the patent system.

Senator Marshall —How?

Senator HUMPHRIES —I will tell you if you care to listen. First of all, it is already possible under Australian law to block unmeritorious patent applications or extensions of applications. It is already clearly the case in Australian law. The practice of evergreening, which as we have heard is certainly a practice carried out by pharmaceutical companies in the United States, is not a problem in Australia and has not been a problem in Australia. If it is potentially an issue in this country, the terms of the free trade agreement and the legislation before the house today make that much less likely, if not impossible, to occur in the future. We do not see any basis for the claim that it is going to happen in this country, and certainly under the terms of this agreement it will not happen.

The second problem is that it is, frankly, an unworkable set of amendments. In the media today, a partner with Freehills who specialises in this area, Mr Paul Jones, said that deciding whether a claimed patent was of substance was a matter that already came before Australian courts. He said, `I would consider any attempts to codify patents as spurious or dodgy as completely impractical.' He was quoted as saying that it was hard to see how a court might impose penalties on a company for defending an approved patent. Indeed, it is hard to see how that is going to work, and I have no doubt that people in the back rooms of the Labor Party offices are scratching their heads trying to work out how these propositions put forward by the opposition leader are going to work in practice. Let us just see what sort of half-baked proposition comes forward from the opposition leader.

The fact is that we in this chamber have got a very little basis for trusting the Labor Party on the question of the PBS. This same party told us for 25 months that there was no way they were going to approve any increase in copayments costs to Australian consumers under the PBS. Then a couple of months ago, having worked out that they could not afford the suite of promises already made on the table to the Australian community for the next election, they decided they were going to backflip on the question of Pharmaceutical Benefits Scheme copayments and support the government legislation. On the FTA, we have heard: `If there's no sugar, there's no deal,' and then, `We're onboard,' and then, `There are some of us who do not support the deal,' and now, `We're in favour of it but we won't pass it unless we get our conditions met.' We cannot trust the Labor Party on the FTA. (Time expired)