PRIME MINISTER:
Well Mark Vaile will join me shortly, he's been called into a division. But since my earlier press conference, seeing we're into TV alluding I've done a CSI on this, a very detailed CSI, and there's nothing out there about our concerns, they are fair dinkum concerns. But the starting point is this, I have always recognised and understood that because the minor parties are opposed to the Free Trade Agreement we need the support of the Labor Party to get it through. And that in the end they can insist on anything as a hold out, knowing that our desire to get the Agreement through will mean that we'll think very hard about knocking back any of their amendments. Now that's a given, you all understand the reality of that. And I've always said that this Free Trade Agreement is more important than any transient political victory for me or for Mr Latham.
Now the basis of our concern is that the amendment in the form that will be accepted by the Senate, and by the Government, might contravene two provisions of the Free Trade Agreement and therefore violate the principle, well understood in international law, that when parties enter into a treaty it's a given that they won't change their domestic laws so as to defeat the objectives of the treaty. And the two provisions that I'm concerned about are provisions 17 and 18 under provisional measures on page 1724 of the Free Trade Agreement. One of them relates to changes which might unreasonably deter recourse to procedures by patent holders to protect their rights. And the other which provides specifically that each party shall stipulate that there is a rebuttable presumption that a patent is valid. Now I know this is, you know, mind numbing and technical but these things are mind numbing and technical and our concern is that the ALP amendment in relation to the first because of the size of the additional penalties and the nature of their construction could represent an unreasonable deterrence to recourse to such procedures. And secondly, and very specifically, that the amendment dealing with what a patent holder must establish says that he's got to establish things in addition to the mere fact that he holds a patent. And there's a concern that that might run foul of the requirement that the starting point is a rebuttable presumption.
Now they're our concerns. Now those concerns were put to the Opposition. We gave them a piece of paper which I'm not going to make public for the very good reason it refers to legal advice and bear in mind legal advice to the Government is different from legal advice to the Opposition, it could well be pleaded in aid in some future dispute, even by an American company, and I don't want that to happen. So I can't make that kind of legal advice available and I don't intend to and Mr Latham should understand there is a national interest in that sort of thing not being made available. Now what we put to them was a series of amendments that would have altered the construction of the penalties and therefore reduce the possibility of an unreasonable deterrence referred to in clause 17. And also a change in relation to clause 18. Now we put those proposals to them in the first part of the discussion and they said no, we then scaled back our changes in the hope of getting some improvement and provided a set of specific amendments embracing that scale back proposal, and I have had copies made available and I'll make those specific amendments available. Now they were not our preferred set of changes but they would in our view have improved the situation.
Now that is it, I know it's complicated but there's nothing out there about it, it's quite significant. Now I could be totally wrong and my fears could be completely groundless and I hope they are. However they're not based on some kind of secret understanding with the Americans, they're based on a bona fide concern about the impact of the changes that have been put forward. Now as far as the communications with the Americans are concerned, I had a message communicated to me this morning from Mr Zoellick in which he said this, and let me quote from part of it, he stressed that US STR has no official position on the ALP amendment, and reserved its position until seeing the final law. He fully expected the Australian Government to comply with its FTA and TRIPS obligations. He said he understood there were many facets to the debate in Australia but he reserved the right to see if the amendment was consistent with the FTA once it was enacted. Now they are the exact words of the communication that I received from our acting ambassador after a discussion that he had with Mr Zoellick.
Now that is an entirely correct American position, they are not going to solve our political problem for us, they're not, and it's unreasonable to expect the Americans to solve our political problem and they're not going to do it. And can I just simply make the point that if I thought the Americans have changed their domestic law to frustrate a deal I'd made with them, I'd be angry and I therefore, and the Labor Party should be in proper intellectual honesty accept that if they've come to the view that we're changing our domestic law to frustrate in some way a deal they've made with us they are entitled to have reservations. Now that is the sum of it. I'm not saying it's going to happen, I'm not saying it's going to fall over, I didn't say that and nobody on my behalf said that in the discussions and I've always accepted that at the end of the day we needed the Labor Party to get the Free Trade Agreement through, I've always accepted that, because I understand the reality of the numbers in the Senate and I want this Free Trade Agreement. And despite my concerns and my reservations I'm going to accept the ALP amendment, but I have tried very hard in good faith to get some changes that will reduce the possibility that there is a problem.
Now I think that is the right thing to do and this has got nothing to do with who wins or who loses. It's got to do with trying to serve the national interest. Now I hope I'm wrong. And people will argue that I'm wrong. They often do. And all I want is this free trade legislation to go through and there to be no problems, and once it goes through, I will be out there batting for Australia on behalf of the legislation that has come out of the Senate, but I would have been failing in my duty and Mr Vaile would have been, if we hadn't have tried along the way to change the amendments... the amendment from the Labor Party. And the changes we had in mind did not alter the fundamental thrust of what they had in mind. And also bear in mind our starting point, and that is that the PBS is safe under the Free Trade Agreement. All of these amendments from the Labor Party have just been political window dressing.
JOURNALIST:
Mr Howard, wouldn't Mr Zoellick have given the same response even if the Labor Party had accepted your changes?
PRIME MINISTER:
I don't know what response he would have given in another situation. I can only tell you what response he gave me.
JOURNALIST:
(inaudible) concern, what you've read to us hasn't really backed up what you said this morning.
PRIME MINISTER:
No, I don't agree with that for a moment. I mean I pointed out where we believe there is a conflict.
JOURNALIST:
(inaudible) doesn't amount to concern. It's just setting out the process.
PRIME MINISTER:
No, no. He's reserving a position. Of course he's reserving a position. But what Mr Latham and Senator Conroy were trying to do this morning was to argue that they've spoken to people and they had no concerns, and that is not right. That is directly contrary to what I was told by Zoellick. I mean what Zoellick is saying look, I understand there is a political dispute in Australia and I'm not going to solve it, but you've got to understand that once the law is the law in Australia, I'll have a look at it, according to American interests, against the text of the Free Trade Agreement. And that is an entirely proper thing for him to do.
JOURNALIST:
He was answering a question, wasn't he? He was answering a question from someone here?
PRIME MINISTER:
Sorry?
JOURNALIST:
Prime Minister, you don't seriously expect the Australian people to believe that the trade deal could be in jeopardy because of these amendments Labor have put up?
PRIME MINISTER:
No, no, what I'm asking... what I'm asking the Australian people to understand is that we have sought in good faith to reduce the possibility of there being a problem, and we think the Labor Party is being unreasonable because of what it sees to be its own political interests, in not accepting that.
JOURNALIST:
Mr Latham said he had legal advice which suggested the amendments that you put forward, the amendments to their amendments, would actually weaken the FTA and possibly put it... possibly breach the FTA.
PRIME MINISTER:
Well I mean look...
JOURNALIST:
... conflicting legal advice.
PRIME MINISTER:
You know, this is... but this is part... I mean this is part of the debate. But bear in mind that the legal advice that I have received has come from not only the chief negotiator, but also the legal advisers that have been involved in the negotiations. And with great respect to the QC who gave the advice, and I'm not slagging him in any way, he's a good lawyer - it's also the case though that this is, like so many of these arcane areas, it's got its own nuances, and I think that legal advice was quite strong. But for the reason I outlined, I can't make my legal advice public, and he knows that, and it wouldn't be in Australia's interests for me to make that legal advice public because it might find itself in unfriendly hands.
JOURNALIST:
(inaudible) that you had indicated to him during your talks with Mr Latham that their amendments somehow were at odds with the, as you put it, atmospherics or the spirit.
PRIME MINISTER:
I could well have said that, but I also have indicated... there's nothing inconsistent with saying that and also pointing out what I've done this morning... this afternoon rather. I mean these... there's nothing spiritual or atmospheric about clauses 17 and 18. They're very precise. Nothing spiritual at all.
JOURNALIST:
(inaudible)
PRIME MINISTER:
I beg your pardon?
JOURNALIST:
(inaudible) between the spirit and the letter of the FTA?
PRIME MINISTER:
Well you can have a spirit as well as a letter. The point I'm making is that the real basis of our concern are 17 and 18. Now look...
JOURNALIST:
The suggestion is... he says, Mr Latham says...
PRIME MINISTER:
Well I mean he makes a lot of suggestions. I mean I'm... you know, I don't respond to every suggestion. I'm simply making the point that we were advised that there was a potential conflict between the ALP amendments and 17 and 18 for the reasons I've outlined. Now that was the advice we got, that was indicated to Mr Latham during the discussions. We sought changes to the amendments to reduce, in our view, the possibility of it being in conflict with 17 and 18, and the Labor Party has said no. Now that is the end of it because we need their numbers to get it through. But I want it on the public record, in case there is a problem in the future, that we tried to mitigate the possibility of that problem, and that if there is a difficulty, then it will be on the head of the Labor Party.
JOURNALIST:
Prime Minister, you said that it's a given that in these negotiations you don't change laws that may relate to the Agreement.
PRIME MINISTER:
No, you don't change them in a way that frustrates their objectives.
JOURNALIST:
Labor said they weren't aware of that element. Is that in the Agreement?
PRIME MINISTER:
Well that's very, very peculiar. I mean it's a longstanding... it's based on Article 18 of the Vienna Convention. It's not specific to... it's generic, to borrow a phrase, it's generic to international trade law. It's not... I mean I thought it would be a given that Senator Conroy would know that.
JOURNALIST:
Have you pointed it out to Labor though?
PRIME MINISTER:
Well I just assumed they understand that. I mean it's in the Vienna Convention. How could he not be versed in the Vienna Convention?
JOURNALIST:
As we all are.
PRIME MINISTER:
Of course you are. Well there you are. It's a given.
JOURNALIST:
(inaudible) Mr Howard...
PRIME MINISTER:
Well look I don't know. Look, I'd have to find that out Michelle.
JOURNALIST:
Do you have any other advice from the Americans, or is that all?
PRIME MINISTER:
Look, there are always communications between governments.
JOURNALIST:
Mr Howard, why has the Government prioritised the Marriage Bill over your anti-terrorism...
PRIME MINISTER:
I'm sorry. What's this?
JOURNALIST:
Why has the Government prioritised the Marriage Bill over the anti-terrorism amendments? Does your Government consider gay couples more of a threat to Australia than terrorists?
PRIME MINISTER:
Well we have very strong laws already on anti-terrorism, and look the question of the order of things in the Senate, you'd better ask the Senate leadership about that. I think... I'm getting cold. I don't know about you people.
JOURNALIST:
Could you summon the spirits and tell us when the election date will be?
PRIME MINISTER:
Ah, that's still out there. See you later.
[ends]