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Wednesday, 8 June 1994
Page: 1452

Senator BROWNHILL (Deputy Leader of the National Party of Australia) (10.00 a.m.) —In speaking to Senator Coulter's motion I have to disagree with the premise on which he based it. He asserts that in the legal advice provided to the Senate Standing Committee on Rural and Regional Affairs a conflict is indicated between the Plant Breeder's Rights Bill and the Native Title Act. The rural and regional affairs committee is the committee that hears these matters fairly and squarely, and, if there are doubts, it gets other information. The committee took evidence on this aspect. One witness, a Mr Baird, suggested to the committee that there was a conflict. We heard the matters well, and we heard them for quite some time.

  I would like to draw the attention of the Senate to the report of the committee on the bill, and in particular to clause 3.24. In our deliberations we said:

DPIE provided the Committee with advice from the Attorney-General's Department responding to the propositions raised by Mr Baird. The advice concludes that it seems that the Bill will not affect native title rights contrary to the Native Title Act 1993. The advice also indicates that the Bill does not conflict with the international Conventions identified in Mr Baird's submission to the Committee.

A letter from the Attorney-General, signed by Anna Funder, counsel on behalf of the Attorney-General's Department, regarding the Native Title Act 1993 said:

The submission argues that the Bill has the potential to extinguish or affect native title rights contrary to the NTA (see S11). On a preliminary analysis, we do not agree with that argument for the following reasons.

It goes on to say:

The NTA provides that, generally, future acts (which by definition affect native title) must be `permissible' to be validly done.

First, it seems unlikely that rights to genetic plant material would arise from customary indigenous laws.

Secondly, the NTA only protects the native title rights defined—that is native title rights in relation to land or waters. They include hunting, fishing and gathering, and native title rights would include usage of the resources of the land or waters. The resources would include plants, and the gathering of plants could be a native title right. Native title rights protected by the NTA might also extend to ownership of such plants. However—

the Attorney-General goes on—

it is doubtful whether they would include rights to the plant's genetic material.

That is what we are talking about here—the plants' genetic material:

The NTA does not deal with other aspects of customary indigenous laws. If there are indeed any rights to genetic plant material arising from such laws, they are very unlikely to be native title rights protected by the NTA.

Thirdly, assuming indigenous rights to genetic plant material exist and are covered by the NTA, the development of registration of a new plant variety—

a new plant variety, please note—

from genetic material owned by native title holders, would not be an act affecting native title and would therefore not be regulated by the NTA. This is because any native title rights would be to the original plant material and, even though native title rights are not frozen in time, they are very unlikely to extend to the new plant variety.

On behalf of the Attorney-General, it went on to say:

The result is that it seems the Bill will not affect native title rights contrary to the NTA.

  At the end of every session this chamber is accused of dragging the chain, of allowing the program timetable to fall behind. Our last-minute rush to complete legislation is legend in this place. We have devised new sitting times in an attempt to overcome all those problems yet, despite that, we are already slipping down the program here. This reference would merely serve to put us further behind in regard to a bill that is wanted by the majority of the plant breeding world. I think it behoves us to get along and do the job properly.

  Let me make it clear that I have no intention of stopping bills being referred to committees when such a reference is warranted, but this matter has been well heard already by the committee. The referral of bills is a key strength of this Senate system, and it is one I strongly support.

  This reference is merely a sop to those vested interest groups who seek the support of the Democrats. I believe that that is all this is about. The Democrats have been against this bill from the start. All they want to do is block it or cause problems with it the whole way. I believe that they had their turn to express all of their concerns to the Senate rural and regional affairs committee. The committee gave everyone a fair opportunity to have a go and come before us, and the report of the committee indicates that. It would now be merely a waste of time for this chamber to refer the bill to yet another committee for a further round of public hearings and then report again. I commend the report of the rural and regional affairs committee to the Senate. I totally oppose Senate Coulter's motion and I urge the Senate to reject it as well.