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Wednesday, 4 December 2002
Page: 7193


Senator STOTT DESPOJA (6:08 PM) —First of all, it is possible to agree with comments that have been made by both those in favour of and those against the amendment. I say that because I begin by acknowledging the complexity of the Patents Act. I think it was really interesting that, in response to Senator Murphy's question, Senator Minchin provided reference to the section of the Patents Act—the section that Senator Harradine was involved in—that refers to human beings and the biological processes for their generation as not being patentable inventions. I wonder, therefore, whether there is a legal interpretation that suggests that what Senator Collins is attempting to do might actually already be covered. I suspect that it would be a very grey area. As senators would know—and certainly Senator Harradine would know— that section of the act does not exclude the patenting of genes and gene sequences.

I do not think the Patents Act is sufficient; I think it needs to be changed. I welcome the Prime Minister's announcement that there will be an inquiry—essentially a recommendation in my second reading amendment. I also echo, though, the concerns raised by Senator Collins in relation to the time frame. I think we need more specifics on this one. Certainly, people who have been debating the Patents Act since 1990—including some of us who have been debating it since 1995—want better assurances. It is a good win; it is a good announcement by the government—I do not mean to detract from that. But I also know that the ALRC and AHEC have full plates. I know that they are in the midst of the genetic privacy inquiry, which has taken a long period of time—mind you, it has been comprehensive and far-reaching, and I hope it will result in not only valuable recommendations but also legislation. That inquiry is perhaps the best example of how long these processes can take—yes, because they are complex but also, on the other hand, because they require political will.

Absent from a debate about Patents Act reform has been political will. No matter how many times people stand up in this place and acknowledge that we all have sympathy, we all have concerns, we all have ethical debates—and it has been from people who have voted time and time again against changes to the Patents Act; I do not mean to detract from the complexity of the debate, I do respect the deeply held views of everyone in this chamber and I am not impugning anyone—the voting record shows that previous attempts to change the Patents Act to stop the patenting of things that occur naturally, such as biological materials and parts of a human—and I talk specifically about genes, gene materials, genetically engineered organisms, genetic engineering, genomes, altered organisms, progeny of genetically engineered organisms et cetera—have been stymied.

This debate says three important things to me today: yes, we are ready for a debate about patents; yes, we are ready for a long overdue inquiry into the Patents Act; and, yes, there is finally the political will to change it. In the same way that Senator Collins is calling me on this one—I acknowledge that; Senator Collins knows my views and knows that I support her amendment—and now that I have heard other people's views, I am going to call her and them right back. In 1986, 1984, 1990—September 1990 was one of the attempts to change the Patents Act—


Senator Jacinta Collins —Do you want me to argue for another conscience vote?


Senator STOTT DESPOJA —Indeed. I do not want a conscience vote; I want the political parties to adopt these changes. I say that through the temporary chairman to Senator Boswell. Senator, in 1990 you voted against changes to get rid of the patenting of genes and gene sequences, but I can tell that that was not your view. I know that from personal discussions with you, and I want you to convince your caucus to that effect. I want the National Party and the coalition out there ready to make these changes. Maybe political parties will be, after this inquiry.

I acknowledge the difficulties, but I also wish to acknowledge a point that I think Senator Evans made well to the people in the chamber—that is, when we talk about the horse bolting, we have to acknowledge that research is taking place now. Just because we have just got around to dealing with some of the jurisdictional or regulatory issues in Australia in relation to, firstly, prohibiting human cloning and, secondly, dealing with research involving human embryos does not mean that this is not already going on. I understand that it has implications for our scientists and our researchers. I understand that it has implications in terms of intellectual property and whether or not there is the same incentive for people to get involved in the research. But it works in other ways, too; it works from the opposite perspective. I asked back in 1996:

Will the patenting of genes and gene sequences—

you can insert Senator Collins's references to unmodified stem cells in here as well—

inhibit the free flow of information on which science and the advance of science ultimately depends?

If you have free access and availability, there is an argument that you encourage research. I do not want scientists and researchers to not be compensated for the work that they do, and that is where the debate comes in about whether you own the particular biological substance, the organism, the cell, the gene or whatever, as opposed to the processes involved in coming up with the products, inventions or what have you. There is a distinction which I think has been recognised in the past that says, `Yes, intellectual property rights are important, and so is compensation.' So in that respect I do acknowledge the argument that scientists could go offshore. I do not want that to happen, hence my support for this legislation.

I am probably in a difficult position. Senator Evans made reference to those people who do not support this legislation but who may be supporting this amendment— not as to their motive, I acknowledge. There may be people who do not support the legislation but who support the amendment, but I am one of the people who are passionate about having some legislation in place and so having a regulatory environment. At the same time I am in favour of embryonic stem cell research and adult stem cell research going ahead. That is on record. That, hopefully, is well known by now. But at the same time I cannot resile from the fact that there is one thing I believe strongly—that is, you do not patent those biological processes, those aspects of humanity. There are reasons for that. They may be inspired among us by religious or spiritual beliefs. They may be personal reasons. It may be simply the abhorrence that human life should be owned in any way. It may be because commercial exploitation of humans is something that we strongly oppose. It may be because of those research implications and the fact that the free flow of information is potentially inhibited by commercial interests or people owning these substances.

It is not so much with mixed feelings that I support Senator Collins's amendment, because I support the intent of it, but I make it very clear too that this has been a long time coming and I will be moving very soon to see that we have a general business debate on the Patents Amendment Bill 1996, moved by me in this place on behalf of the Democrats. If we are going to do this properly, then let us talk about real patents reform that better reflects the ethics and the spirit not only of this debate but of our nation. Then we will be in line with the Inter-Parliamentary Union meeting in Madrid in 1995—I think it involved 114 national parliaments—which called for the prohibition of the patenting of human genes. The resolution underlined the `urgent need to ban the patenting of human genes' and `prohibit all financial gain from the human body or parts thereof, subject to exceptions provided for by law'. Obviously there are going to be arguments for exception, and I am sure that debate will happen through the ALRC-AHEC inquiry.

I acknowledge the Prime Minister's letter—I have seen a copy of that, and when it is tabled I am sure there will be more debate—and I appreciate the Prime Minister and the government taking on board those concerns in the ideas for the terms of reference outlined in the second reading amendment. I recognise all the other qualifications and arguments from all sides in this debate, because I do think Senator Evans and Senator Patterson made a good point about ad hoc reform. But, when there is an issue such as this and there is a core philosophical debate, I will support that debate.

I hope that the legislation is successful and I hope that, with the opportunities over the next two years as we review this legislation, and certainly in the short term, when we will have the broader AHEC-ALRC inquiry, we will come up with better ways of addressing patent reform issues. But for now I am called on this amendment: it is an issue— as I have said repeatedly ad nauseam, I have no doubt—that I have been more passionate about than just about anything in this place, so I welcome the opportunity to perhaps get that into law for the first time.

But this is only the beginning, and again I put on notice those other senators who have expressed their concern about patents. When the gene sequences bill or the next patents amendment bill comes up and I move amendments on behalf of the Australian Democrats, I will be looking for support, particularly from Senator Boswell on behalf of the Nationals. Senator Harradine's support has been there on this issue for a long time, so I know where he will be voting. Senator Murphy, your view is quite evident from your amendment. I think your amendment is quite broad ranging. I think its implications for not only the processes involved in research but also obviously the results of that research are quite far ranging. I am not sympathetic to having such a change to patents law unless we talk about it in the context of other changes to the Patents Act. It is not the same philosophical, easy, `vote for me' response, inasmuch as any of these debates is easy. Having said that, I hope in no way to hold up this legislation but I do see this as an opportunity to make a significant philosophical change to Australian law.