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Wednesday, 25 February 1987
Page: 583


Senator POWELL(11.46) —I move:

(19) Page 20, sub-clause 35 (1), before paragraph (a), insert the following new paragraph:

``(aa) the Secretary becomes satisfied that the characteristics of plants of the variety have so altered that the plants no longer correspond to the description of a plant of that variety entered in the Register;''.

We believe this amendment is critical, given that we are to be faced with plant variety rights legislation in Australia. We need something further in this legislation by way of a safeguard. I remind the Senate that Senator Zakharov in her contribution in which she spoke basically against the legislation, attempted to convince us that there were safeguards in the legislation. A number of areas which have gaps have been exposed this morning, and this is yet another.

We are proposing in this amendment that the right granted under plant variety rights legislation may be withdrawn if the Secretary is satisfied that the characteristics of the plant variety have altered so that the plant no longer conforms with the description given when that plant variety was granted. This amendment was one which again was recommended to me by Mr Jack Sewell who is a member of the Industry Committee for Plant Breeders Rights. He provided me with information which demonstrated that overseas legislation of this type has requirements-in fact stricter requirements than the Democrats are proposing to be inserted in this legislation-which place the responsibility upon the owner of the right for the genetic purity of the variety which is being patented. We are attempting to at least ensure that the exclusive right to that variety is removed if the characteristic's of the variety move, in any way, away from the distinctiveness and uniqueness which is required before the right is granted. Article 12.10 of the Japanese plant breeders' rights legislation says:

The Minister of Agriculture, Forestry and Fisheries must cancel the registration of a variety in the cases listed as follows:

(1) When it has been found that the characteristics of the plant of the registered variety have become different from the characteristics of the plant at the time of registration of a variety;

This Australian Democrat amendment meets almost word for word the words in that legislation. I raise these examples because of the attitude of the Government and the Opposition, but mainly the Opposition, which earlier pleaded the case for the Government's legislation and has done so over its passage. The legislation from West Germany, under the heading `controls of maintenance of varieties', states:

Under the Variety Protection Act and the Seed Act varieties which are protected and/or registered in the variety list have to be controlled as to whether or not they remain unchanged. This requires systematic maintenance breeding by the breeder.

. . . .

In case the control test reveals that the variety in question no longer meets the registration requirements, it is deleted from the list.

I am entering this overseas legislation in the record as we are supposed to be accepting this legislation in Australia because of the wonder, joy and benefits brought overseas. We are choosing to forget what the European Parliament thinks about that at the moment. I am sure we will get to that before we get to lunch today. Since the Government and the Opposition are telling us that this is wonderful legislation perhaps the legislation should mirror more closely than it does the legislation from overseas. The Plant Varieties and Seed Act 1964 in the United Kingdom says:

Every holder of plant breeders' rights shall ensure that, throughout the period for which the rights are exercisable, he is in a position to produce to the Controller-

which I think is the equivalent of our Secretary-

reproductive material which is capable of producing the variety to which the rights relate with the morphological and physiological and other characteristics taken into account when the rights were granted in respect of the variety.

It goes on that the Controller may, if he thinks fit, at any time terminate the period for which the plant breeders rights are exercisable. Quite clearly, these are international examples of the very thing we want to introduce here. It is very interesting. I am assuming that this amendment will meet the same fate as previous amendments.

The exclusive right of ownership of seeds and plant materials, according to the Government and the Opposition, is to the benefit of the farmers and horticulturalists as they will have these wonderful new varieties which they cannot get now. We have challenged that with information we have from people who are growing the plants. They have told us that from their experience over the past decade it is-as plant variety rights legislation came closer-the threat of Australia having plant variety rights legislation, the anticipation of it, that has dried up the overseas sources which previously were not closed to us in any way. Of course, the opportunists and the profiteers overseas said: `We might make more money if we hold off. Let's squeeze them'. That is what has caused us to have this legislation before us.

One factor which is embodied in this legislation is that there must be a distinctiveness and uniqueness about the characteristics so that varieties can be granted a patent. This amendment tries to cement that in place, to ensure that that is the case, that our farmers and horticulturalists do not continue to be sold a variety for which they are paying extra, paying royalties. These may be varieties which have moved away from the distinctiveness and the uniqueness which caused it to be granted the right in the first place. This may happen over time for a range of reasons to do with their having been grown in the environment, on farms, in the orchards, and in the vegetable patches. I repeat, that sort of clause is in overseas legislation. It ensures at least that if a person is paying extra for a variety which is owned wholly and solely by someone else that person should be paying for something he believes he is paying for and not for something which, in some way, has moved away from the original characteristics.