52. The representative of Australia was pleased that a number of the papers from delegations had emphasized flexibility and had ventured a number of ideas which were practical and realistic and could form part of a final package. In his opinion, it appeared that on certain key issues such as scope, safeguards, transparency and the need for an expeditious solution, there was considerable convergence in the thinking of the Council. Australia's focus was on a practical outcome to this problem, one that could be found in a way that maintains the integrity of the TRIPS Agreement. He highlighted two key elements that he considered the TRIPS Council should take into account in crafting the details of the solution: first, the scope should be to address the public health problems afflicting developing countries and particularly least-developed countries, especially those resulting from HIV/AIDS, tuberculosis, malaria and other epidemics and pandemics; second, while safeguards to prevent diversion were necessary for the credibility of the solution, they must be reasonable and effective. He highlighted existing TRIPS provisions, such as Article 44.1 on injunctions to prevent imports, as a fundamental element of these safeguards. Australia was attracted to this approach as it would impose no new burden on the third countries, often developing countries, to which low cost drugs could be diverted. Technology transfer had been raised by some delegations and that there was no doubt that further work needed to be done on this aspect and that Australia looked forward to the discussions, based on Article 66.2 of TRIPS, later in the week.
53. He said that his delegation was looking carefully at all the proposals on the table but was attracted to a solution based on Article 31(f). Australia also saw the benefits of a waiver or a similar approach, rather than an amendment, as this targeted the anomaly which gave rise to the problem, namely, the wording of Article 31(f). A waiver, or some form of flexible instrument like a waiver, would provide legal certainty and had the added advantage of being able to be put in place quickly. He added that it could also be adjusted quickly in light of experience with the new system. While consideration of the most effective legal mechanism was important, it would not be helpful to get bogged down in a detailed discussion of these finer legal points when the real focus of the discussion, at this time, should be on fleshing out the overall elements of a solution such as the scope of the problem and appropriate safeguards.
