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Friday, 15 November 2002
Page: 6537

Senator O'BRIEN (2:52 PM) —I take it that the running sheet dated 21 October is still current for this bill. I have some comments that I seek to make prior to the packages of amendments being moved in the order that they appear on the running sheet. Firstly, I request that the first package of amendments not include Democrat amendment (3) and that that amendment be dealt with after all of the amendments—in other words, after the opposition amendments. The reason for that is that Democrat amendment (3) inserts a definition of `indigenous' into section 3 of the act and this definition is consequential to a number of Democrat amendments and a later opposition amendment in relation to the Plant Breeders Rights Advisory Committee. I ask that it be placed there so that if it is not required after all of the other amendments are dealt with then obviously there would be no point in supporting it. That is the first request I make.

I have some other comments. Firstly, I have a comment about item (8), which omits the words `by which the variety will also be known and sold in Australia' from section 27(2)(b) of the act, which I understand is consequential to the amendments to subsection 3(1). A member of the farming community familiar with the government's proposals expressed some concern to me that the amendment will present an opportunity for one synonym to be presented at the time of application for a grant of PBR and an entirely different one used at the time of commercial sale. However, I have raised the matter with the office of the Minister for Agriculture, Fisheries and Forestry and am advised that this provision is entirely consistent with other legislation of this type. That is to say that legislation does not usually proscribe that products or services can be marketed under particular names. I am advised that the synonym provisions of the act do no more than recognise that some breeders may want to use different names for their new plant variety for cultural, marketing or other reasons. We remain prepared to support that amendment.

With regard to item (17), which is consequential to item (6) but goes directly to the issue of access to confidential information in a PBR application, similar sources have put to me that new seeds will be presented to growers with a glossy name designed to boost sales rather than provide complete product information. I am advised—and I have to say that I am not entirely surprised— that sometimes the claims in these glossy plant brochures are not always realised when people, particularly farmers, put the seeds in the ground. I have addressed this issue in part in relation to item (8), but it has been put to me that if a particular farmer knows the parents of a new plant variety she has a better chance of knowing if it will live up to the claims on the front of the seed packet. It has been suggested to me that this knowledge would give farmers some warning of potential problems, which might be problems they may have experienced with the source variety and problems that may be controlled with appropriate agronomic practice.

I sought advice from the minister again on whether farmers should be entitled to access the details of the parent of a new cultivar, and I understand the answer is no and that commercial confidentiality is the reason given. It is asserted that mandated public access to all information contained in applications for plant breeders rights would act as a disincentive to innovation and allow other breeders to use the same source varieties to breed similar varieties to those subject to the PBR claim. Commercial confidentiality is an often unsatisfactory argument, but I recognise it has an appropriate place in an intellectual property scheme. Accordingly, we will also support that amendment.

Item (33) of the bill substitutes the words `may be begun in the court' with the words `may be begun in the court only by the grantee'. The effect of that is to restrict the ability of those other than PBR grantees to commence action for infringement. I do not have any advice on that and I would appreciate advice from the Parliamentary Secretary to the Minister for Agriculture, Fisheries and Forestry in the course of the debate during the committee stage on the rationale for this amendment.

The TEMPORARY CHAIRMAN (Senator Brandis)—Senator Cherry, are you agreeable to Senator O'Brien's request that Democrat amendment (3) be taken after all other amendments have been dealt with?

Senator Cherry —Yes, I am.

The TEMPORARY CHAIRMAN — Please continue.