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Wednesday, 8 June 1994
Page: 1450

Senator COULTER (9.48 a.m.) —I move:

  That the Senate—

  (a)noting the legal advice provided to the Scrutiny of Bills Committee that there may be a conflict between the Plant Breeder's Rights Bill 1994 on the one hand and the Native Title Act 1993 and Australia's international obligations under the Convention on Biological Diversity on the other; and

  (b)refers the Plant Breeder's Rights Bill 1994 to the Standing Committee on Legal and Constitutional Affairs for inquiry and report on this potential conflict.

This motion, standing in my name, relates to the need to refer the Plant Breeder's Rights Bill 1994 to the Standing Committee on Legal and Constitutional Affairs. The motion arises from evidence which was given before a Senate committee inquiry into this bill, which raised the possibility that the legislation which the Senate is about to consider could well be in conflict with either or both the Native Title Bill or the International Convention on Biodiversity.

  In view of that possibility—this is the reason I bring this matter before the Senate—I, and the Australian Democrats, believe that this bill should be referred to the legal and constitutional affairs committee for resolution of that potential conflict rather than pass legislation which may indeed be in conflict with legislation recently passed and, therefore, leaving one hell of a mess for law courts to sort out. That is not to gainsay in any way the possibility that it might seriously damage the rights which native people might have under the Native Title Bill.

  The cause of the conflict arises from the fact that the Plant Breeder's Rights Bill flows from, in part, the twin events that occurred after the negotiation of the international convention for the protection of new varieties of plants, which concluded in March 1991. These events were the decision in relation to the Native Title Bill, the Mabo decision, and also the acquiescence to the international agreement on biodiversity.

  Under section 10 of the Native Title Act, native title is recognised and protected. But the problem arises because native title, while it is not able to be extinguished contrary to the Native Title Act, nonetheless does not fully define the extent of native title, and that is where the conflict may well arise. The definition of native title can be found in section 208(1). The subsection states:

The expression "native title" or "native title rights and interests" means the communal, group or individual rights and interests of Aboriginal people or Torres Strait Islanders in relation to land or waters, where:

  (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and

  (b) the Aboriginal peoples or Torres Strait Islanders by those laws and customs, have a connection with the land or waters; and

  (c) the rights and interests are recognised by the common law of Australia.

It protects also hunting and gathering. Subsection (3) of this section, which deals with rights and interests, states:

If native title rights and interests as defined by subsection (1) are—

or have been at any time in the past—

compulsorily converted into, or replaced by, statutory rights and interests in relation to the same land or waters that are held by or on behalf of Aboriginal peoples or Torres Strait Islanders, those statutory rights and interests are also covered by the expression "native title" or "native title rights and interests".

  It is not clear from that definition whether the native title rights which are granted to indigenous people, both Aboriginal and Torres Strait Islanders, extend to the protection of plant species. It has been argued that the conflict arises because over many tens of thousands of years the Aboriginal people have managed the natural environment. They have used fire and a number of other techniques so that the extant species of plants are, in a sense, the result of their plant breeding. If that argument is accepted then those native peoples have some rights over those species, and the Plant Breeder's Rights Bill seeks to extinguish that.

  As I said earlier, the Native Title Bill says quite explicitly that native title can be extinguished only under the native title legislation. It cannot be extinguished by some other legislation. For instance, section 3 of the Plant Variety Rights Act of 1987 contains the following definition:

"new plant variety" means a plant variety that—

  (a) was originated by a person;

  (c) is stable; and

  (d) is distinguishable by one or more important morphological, physiological or other characteristics from all other plant varieties whose existence was a matter of public knowledge at the time when the application in respect of the variety was made;

There is no reference as to time in terms of when the modifications must have been made, only that they must be distinguishable. It is at least arguable that many of these extant species of plants which are distinguishable are the result of that long period of Aboriginal occupation during which the Aboriginal people actually managed the environment, and culturally and collectively are responsible for those species, and therefore, under the Native Title Bill would have some claim to ownership of those species.

  It has only recently become a matter of public knowledge that Aboriginal people performed these complex traditional management techniques—in particular, as I mentioned, fire management and resource management. This, it was argued before the previous Senate committee, can lead to a strong argument that these management techniques led to a maintenance of particular biota over others in a way which could be called plant breeding. Furthermore, it could be argued that the maintenance of biodiversity within areas in accordance with those traditional customs and practices gives rise to native title rights and interests. These interests, therefore, can be extinguished only in accordance with the Native Title Act.

  In a similar way, potential conflicts are arising between the passage of this bill and the international convention on biodiversity. The point about seeking the reference of this matter to the legal and constitutional affairs committee is to ensure as far as is possible that any conflicts are sorted out and resolved before this legislation passes into law. I am not going to suggest that that resolution should lead in any way to a diminution in native title and any rights which Aboriginal or Torres Strait Islander people should have and do have over species of plants. I believe that, if there is to be a resolution of any conflict between these two pieces of legislation, the resolution should fully respect and accept the rights which indigenous people have in relation to native species. Anticipating that there will be a conflict, I suggest to those who might seek to resolve the conflict that that is the way the conflict should be resolved—in favour of native title.

  The matter was considered by the Standing Committee on the Scrutiny of Bills. The scrutiny of bills committee, in its consideration, found that the argument which had been put forward has the potential to extinguish or affect native title rights contrary to the Native Title Act. The Attorney-General's Department's advice, however, suggests the following:

It is doubtful—

not certain; doubtful—

that native title rights protected by the NTA would extend to the ownership of the genetic material in plants.

It concludes:

It seems—

I stress `it seems'; it is again not certain—

that the bill will not affect native title rights contrary to the Native Title Act.

The scrutiny of bills committee went on to seek its own legal advice which, among other things, says:

The legal adviser has pursued the submission which raised this matter and considers that he puts forward an arguable case.

In other words, there is some substance at least to this argument which I have now put before the Senate. The legal adviser goes on to state:

The committee may therefore be prepared to suggest the Plant Breeder's Rights Bill 1994 trespasses unduly on the rights recognised and protected by the Native Title Act 1993.

Again, here is a situation in which we have—not surprisingly; it happens quite often—conflict between several sources of legal advice. But at least the scrutiny of bills committee and its legal adviser suggest that there is indeed substance in this argument and that, therefore, the bill which the Senate is about to consider may well trespass unduly on rights which are already established under law, although they are not well defined.

  It is for that reason that I urge the Senate most strongly that it accept this motion that that matter should be sorted out before the bill on plant breeders' rights is further considered by this Senate. I think that is the only proper course. It would be quite irresponsible of the Senate to pass legislation when it perceives that there are potential conflicts between an act and a bill which will shortly be passed and become an act. In those circumstances, it is the responsibility of the Senate as far as is possible to sort out those potential difficulties before they arise. I therefore commend this motion to the Senate.