The operation of the compulsory licensing provisions of the Patents Act 1990 need to take into consideration Australia's international treaty obligations. Section 136 of the Patents Act 1990 requires that a court must not make a compulsory licence order that is "inconsistent with a treaty between the Commonwealth and a foreign country".
In its 2013 review of compulsory licensing, the Productivity Commission (PC) considered s 136 problematic, because it reduces the transparency and scrutiny of the legislative process, and can also be a source of uncertainty for the parties. The PC favoured repealing s 136 and incorporating any current and future treaty obligations directly into the Patents Act or its subordinate legislation.
The proposed amendment seeks to improve transparency and certainty for the parties.