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Thursday, 12 December 2002
Page: 10592


Mr SIDEBOTTOM (11:06 AM) —The purpose of the amendments contained in the Plant Breeder's Rights Amendment Bill 2002 is to clarify the rights of plant breeders in certain circumstances where restrictions are imposed; enhance the access of breeders to the Plant Breeders Rights—PBR—Scheme; and to improve the administration of the PBR Scheme.

I note with interest that the Australian plant breeding industry has a turnover of something like $1.2 billion per year. I understand that Seed Industry Association members have an annual turnover themselves of $500 million. Employment in related areas of the plant breeding industry involves 10,000 jobs, including seed growers, plant breeders, seed processors and seed merchants, distributed throughout all states in Australia. The export value of the industry is about $200 million per year.

The Minister for Agriculture, Fisheries and Forestry referred to the fact that growth in the number of registrations under the PBRA since its enactment in 1994 has been impressive—more than 3,300 applications for registration have been received, with one new variety added each day. A figure of 317 new applications was recorded in 2000-01, which represents an increase of 21 per cent on the figure for 1998. Up to 100 new breeders enter the scheme every year. Approximately 60 per cent of all applications are from overseas. Most applications, I understand, are from the private sector and at least 20 new varieties in the major export crops category are being registered per annum, with 680 new varieties of field crops and pastures processed since the inception of the scheme.

What does the PBR Scheme do? It provides certain rights to breeders of new plant varieties in order to encourage plant breeding and innovation. A PBR right entitles the grantee to exclude others from doing certain acts in relation to the propagation of plant varieties for which a grant is held. The scheme does not prevent someone using a PBR variety to breed another variety. In fact, the PBR Scheme exists to encourage plant innovation. New varieties bred in this way must meet the standard PBR test—that is, the new plant variety must be distinct, uniform and stable. A PBR right is limited to 25 years for trees and vines and 20 years for all other plants. The act coexists with other legislation that may impact on the use of a registered variety, including prohibition on its growing or commercialisation. PBR rights holders are also subject to competition legislation, including the provisions of the Trade Practices Act 1974.

The amendments contained in this bill, as the minister pointed out earlier, are predominantly administrative and include a significant clarification to section 18 of the act. Section 11 of the act establishes the right of breeders to disallow certain acts of production and other activities in relation to a plant variety. Section 18 was designed to acknowledge public interest concerns regarding the limitations that breeders can place on the use of their propagating material. For example, it is not in the public interest to allow breeders to prevent the making of food staples such as bread from grain. However, the current section 18 has been interpreted such that it has denied plant breeders the right to deny any normal commercial activity in respect of their propagating material. This was not the intention of the legislation. Accordingly, the bill provides for a deletion of section 18 and the insertion of a new section that allows for certain defined public interest restrictions.

Sensibly, the new provisions provide that a breeder is able to exercise their right of authorisation of acts under section 11, except where the right is restricted by Commonwealth, state or territory legislation. Where such restrictions apply, equitable remuneration must be paid to the breeder—a provision that is consistent with Australia's obligations under the International Convention for the Protection of New Varieties of Plants 1991. The bill also clarifies the power of the minister under section 49 to impose conditions on existing and proposed breeders rights on public interest grounds.

The Plant Breeder's Rights Act 1994 is based on Australia's membership of the International Convention for the Protection of New Varieties of Plants 1991. This is a United Nations multilateral agreement establishing an internationally harmonised regime for exclusive intellectual property relating to new plant varieties. The act is a form of patent legislation that coexists with other laws. The evolution of this legislation commenced in the 1970s and has been the subject of public debate over many years. The Fraser government attempted to push a plant varieties scheme through the parliament in 1981. That scheme was considered deficient. It was left to the Senate to work through many of the unresolved issues—a situation which continues, I believe, under the current coalition government.

The issue of plant breeders rights was then the subject of an exhaustive inquiry by the then Senate Standing Committee on Natural Resources, the committee handing down its report in May 1984. It recommended that a plant varieties rights scheme be established and that legislation be drafted to conform with the 1978 UN convention relating to new varieties of plants. The committee also recommended that the then Department of Primary Industries closely examine all the evidence that was critical of the original bill. The end result of that proper and exhaustive process was the enactment of the Plant Variety Rights Act 1987. That act enabled plant breeders to apply for and receive proprietary rights for new varieties of plants they developed. It was designed to stimulate plant breeding in Australia for both our domestic industries and for export.

Despite the exhaustive consultation that preceded the passage of this legislation through the parliament, significant uncertainty about the impact of the scheme remains in some sections of the community. Concerns remain about the impact on the developing world, management of worldwide plant genetic resources, the ownership of essential food resources, market structures and basic consumer interests. Proprietary rights are designed to provide plant breeders, both public and private, with a means of recouping some of the development costs incurred in the breeding of new plant varieties. Plant breeders rights are exclusive commercial rights to a registered variety of seed and are a form of intellectual property similar to patents and copyright. The Plant Breeders Rights Scheme seeks to encourage innovation and gives innovators legal protection from commercial exploitation of their products by other parties. It is therefore an essential protection for an industry that drives domestic industry development and generates, as I mentioned before, export income of some $200 million per year.

Ongoing innovation in the seed industry, driving the development and commercialisation of new seed varieties is the key to sustaining our major rural industries. The recently formed Australian Seeds Authority is a nonprofit organisation established to manage seed certification and accreditation in Australia. The establishment of this authority is an important step in the evolution of the Australian seed industry and will underpin development of this emerging rural industry. In addition to seed certification, the Australian Seeds Authority is responsible for matters relating to international seed trade and the development and implementation of an industry-wide quality assurance system.

The Labor Party has some questions relating to the impact of Australia's international treaty obligations on the Australian seed industry—questions that go to the heart of the regime managed by the Plant Breeder's Rights Act as amended by this bill. The questions concern the decision taken by the Minister for Agriculture, Fisheries and Forestry, Mr Truss, to sign the International Treaty on Plant Genetic Resources for Food and Agriculture at the UN Food and Agricultural Organisation summit on world hunger in Rome this year. Does this treaty, for example, require Australian farmers to pay the United Nations a share of profits from crops grown from seeds stored in a global seed bank? Does the treaty, for example, establish a worldwide seed saver network designed to protect biodiversity and give developing countries access to new seed varieties?

As this government refused to sign this treaty between 1996 and 2001, what was the basis of Minister Truss's change of mind in June this year? According to an article in the Australian on 10 June this year, the minister had a number of concerns about the transfer of genetic assets under the treaty, but decided it was better to be involved to protect Australia's interests. The Labor Party and the plant breeders industry need to know the details of these concerns. The same press article reported that the United States and Japan have refused to become parties to the treaty. Did the minister make himself aware of the positions of the United States and Japan and, if so, what is the position of these major seed technology innovators? It appears that decisions will be made by the United States and Japan about a range of seed technology issues outside the architecture of the treaty. Clearly, Australia's involvement in the consideration of these issues by the United States and Japan will be limited. What are the decision making processes under the treaty and the opportunities for signatories to have input into these processes?

The opposition is interested in the treaty's royalty program. We believe that at the time of the signing of the treaty the royalty details were not established. Have the details of the royalties and how they will be distributed yet been determined? If so, what are the details? Minister Truss is reported as saying that Australian plant breeders will profit from the new system because they can access foreign crops from the seed bank. The opposition assumes that they will have to pay for that access and we seek advice on how that access will work. I trust that the minister will assist the opposition in better understanding the operation of Australia's seed technology regime by seeking answers to the questions raised in the Senate by the shadow minister for primary industries and resources, and here today. However, the Labor Party is pleased to indicate its support for improvements to the Plant Breeder's Rights Act that will clarify breeders' rights, enhance access to the Plant Breeder's Rights scheme and improve its administration.