The Politics Of Window Dressing

The ALP has played an interesting card in the FTA debate. Yesterday the Labor caucus voted overwhelmingly to support the FTA. The FTA is of course a deal or no deal affair. Either it’s accepted or it’s not.

Having done that, Labor then introduced two amendments to the enabling legislation necessary to pass the FTA. The first – which the government accepted – looks to have the effect of making local media content compliance monitoring the responsibility of Parliament rather than the ABA. It doesn’t in any way affect the FTA provisions in this area.

The second – which the government currently rejects – seeks to introduce specific legal provision aimed at stopping pharmaceutical drug patent “evergreening.” Evergreening is hitherto unknown in Australia but it’s a not uncommon practice in the US when highly profitable drugs are about to go off patent. Potential generic applicants line up to do cheaper “knock-offs” while the patent holder deploys an array of blocking manoeuvres in order to extend it’s price and market share control. These can include setting up bogus generic front companies, launching pre-emptive lawsuits etc. The FTA requires that anyone seeking to register an application for an existing expiring pharmaceutical patent with the drug regulatory agency must be identified to the existing patent-holder. Many people – including me – see this as a potential open door to evergreening. Labor’s initiative can be read in one sense as a means of providing enhanced overview and control in this area. Our existing trade practices environment should, one assumes, be capable of responding to shonky practices in this area but would it?

Whatever, Labor’s aim here is primarily political rather than policy-driven and it’s an interesting strategy. A quick dip into the Fairfax online fora reveals that most posters seem to be under the impression that Latham has moved to amend the FTA to make it “fairer.” He hasn’t. The FTA is untouched. Others see it as a nitpicking delaying tactic.

Does Howard resist the remaining amendment and thus make the FTA the campaign centrepiece? Why block an amendment aimed at containing the potential for a practice that Howard himself seems to be saying, should be discouraged? His line seems to be that we don’t need a law because there’s sufficient legal scope to deal with such matters under existing legislation; which isn’t an interplanetary journey away from the (lack of) substantive rationale for the amendment he’s already accepted.

I don’t see this playing out for long, but it will be interesting to see which way it goes.