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Wednesday, 25 February 1987
Page: 586

Senator MASON(12.11) —by leave-I move:

(1) Page 20, paragraph 35 (1) (a), line 8, leave out ``or''.

(2) Page 20, paragraph 35 (1) (b), line 11, leave out ``payable.'', insert ``payable; or''.

(3) Page 20, subclause 35 (1), at end of subclause, add the following new paragraph:

``(c) within 2 years after the grant of plant variety rights in respect of a plant variety, the grantee has failed to comply with subsection 39 (2) in relation to that variety.''.

My three amendments are quite simple. The first two are consequential to the third; they are mere drafting amendments. The third, in effect, inserts a new sub-clause (c), which gives the Secretary to the Department of Primary Industry the right of revocation of plant variety rights in respect of a plant variety if, within two years after the grant of plant variety rights in respect of a plant variety, the grantee has failed to comply with proposed sub-section 39 (2) in relation to that variety. Proposed sub-section 39 (2) reads:

The grantee of plant variety rights shall . . . take all reasonable steps to ensure that the reasonable requirements of the public with respect to that plant variety are satisfied.

It is notorious, in public perception and in reality, that things which are patented are not always brought to the market. It is known throughout the world. The suggestion came up in conversation during the last division that there are somewhere stockings that never ladder, light bulbs that never burn out and refrigerators that work very cheaply and that these things have been patented and then locked away by people. I think there is a burden of truth behind this perception. If that is an inadequacy in patent legislation-as indeed it is in many places-it is no reason why it should be a fault in this legislation also. There are very cogent reasons why this legislation, even more than any other legislation, ought to have a provision whereby once something is patented-presumably its research and development stages are absolutely complete by that time-it should be brought to the market if there is a demand for it. This bears very much on the whole background of our spirited opposition to the Plant Variety Rights Bill.

Diet habits in communities, especially the Australian community, are changing extensively. Many people eat more fruits and vegetables than previously. Large numbers eat very little else. They are opposed to eating any kind of processed foods on principle and because they do not know what is in them. This makes it important that if a variety which is of value comes up it should be mandatory for the patentee to bring it to the market within two years if there is a demonstrated demand. I think two years is quite a reasonable time to allow. This amendment becomes all the more important because our proposed amendments to clause 32 and clause 34 have not been accepted by the Government and have not been passed by this chamber. Clause 34 has been left in its totally unsatisfactory state.

As the Minister for Finance (Senator Walsh), who is in charge of this Bill, is in the chamber, I repeat that the Minister said, in one of his rare utterances in reply to a question of mine in the Committee stage earlier, that the main purpose of this legislation was commercial, to provide farmers with the means of making money. If this Minister were the Minister for Primary Industry and responsible for the administration of this legislation, under clause 34 no doubt he would agree to the withholding of a useful variety if it did not meet commercial considerations. To do the Minister justice, perhaps it was a hasty statement by him; maybe some Minister of a future government that he does not even know of would do that. The situation is being left far too open for our liking. The Australian Democrats believe that the public-any reasonable person-would like to have this point underlined. There is every reason in the world why it should be underlined. After all, I hope we are looking at the positive side of the legislation.

If anything of value comes up, I hope it will be something which, after patenting, will not be withheld. Without that we have an almost open situation where the owner of a variety which is doing very well commercially, who feels that there may be some threat to that variety because there are obvious varietal possibilities around it, patents everything around it. That would not be too difficult an exercise. In these days of bio-chemistry it would be quite possible for the owner of, say, a wheat variety to go right around that as far as he could and pick up everything which he thought might be a modification of it, take out patents on them and sit on them. Some of those varieties might indeed turn out to be very good-we would never know in that case-perhaps disease resistant and higher producing, of enormous value to the human race and even commercially, but if narrow commercial interests were allowed to be brought to bear on them, they would never see the light of day.

The Government will probably argue in the Committee stage-and I would expect the Minister to say this-that there are safeguards. He may take me back to clause 34 which states that when the Minister considers it necessary he can do various things and impose conditions. But that is far too vague for this legislation. I suggest to honourable senators that this is too important a point, to be left just at that. This is something which should have been in the legislation right from the start. I think any reasonable person would agree to that. If something useful is patented and its research and development finished and there is a requirement to put it on the market, then it should be put on the market. If it is not put on the market within two years, the patent should be revoked. It would then revert to the public domain so that it could in fact be put to use by all people concerned. I have moved these amendments on that basis and I ask honourable senators to consider them seriously and carefully.