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Thursday, 30 June 1994
Page: 2427


Senator MARGETTS (1.10 p.m.) —There are a number of very real problems associated with the Plant Breeder's Rights Bill. Senator Chamarette will address some of the problems relating to the environment, biodiversity, conservation and issues of conflict with native title and indigenous rights. I will concentrate my comments on some of the commercial implications.

  We are presented with a Plant Breeder's Rights Bill which is actually a considerable extension of the Plant Variety Rights Act it replaces. The older PVR Act was passed only a few years ago and only after extensive consideration of the implications over a number of years. This bill, by contrast, has been pushed through with undue haste and a minimum of consideration of understanding of the implications involved. It is important to understand the context of this bill. It is being pushed through as part of the general free-for-all caused by the development of the biotechnology industry and the attempt to claim and commercially or economically tie up all of living creation in chains of proprietary law.

  For years, organisations have tried to juxtapose ethics and justice with valid claims to the fruits of intellectual labour and claims on natural things. This area of the proprietary in ideas and in relation to plants was dealt with by various national patent offices, by copyright legislation and by plant variety rights. Biotechnology changed the nature of the claims. Suddenly, knowledge has virtually become a product. Knowledge of life is seen to be the basis for a claim over that life, not only the plants or other species as things but claims over the intrinsic nature of life and its components. Control over species and genes has immense implications in a variety of directions, not only for life but for our view of our position in the web of life and our actions in relation to other life forms. It also has immense implications for commerce and science of control over resources and the entire notion that there are common resources to which we have a responsibility and from which we should all expect to benefit.

  We have a sudden flood of legislation, conventions and legal frameworks setting up claims to life forms, genes, germ plasm and so on. Many of these frameworks are in conflict. The trade-related intellectual property regime that the Multilateral Trade Organisation is pursuing is different from that considered appropriate under the biodiversity convention or by the United Nations Council on Trade and Development's Intellectual Property Committee. Strong arguments are put forward by the non-aligned nations that there need to be international conventions to protect the interests of the south in relation to biological resources, particularly agricultural resources, and to give recognition to the generations of work done by cultures and societies generally dismissed under the phrase `traditional use of knowledge'.

   Initially, many of the biotechnology patents were granted as inventions and patent legislation was stretched into entirely new forms. In 1980 the first living creature, a bacteria, was patented in the United States of America on the basis that it was an invention. Modified genes and genetic technology were patented on the basis that they were new. The first higher life form, the onco-mouse, was patented in 1987. More recently, the barrier between modified and unmodified life forms was broken down with the patenting of naturally occurring bacteria and fungi.

  Not all nations feel the same way about patents, particularly in relation to biotechnology. Some nations refuse to patent some life forms or parts derived from life forms. The United States Patent Office, for example, has shown itself willing to go far beyond other nations by patenting basic monoclonal antibody technology—directly attributable to publications in major science journals and clearly meant to be free scientific information—while giving no credit to the scientist who made the discovery. It was the first nation to issue a patent on life, the first to patent unmodified life on the basis of specific search, and the first to patent the unmodified genes of a human being.

  The US patent office has been willing to issue patents of the cell lines of entire tribes of indigenous people in Central America and elsewhere. But even the United States patent office has some limits, and recently refused to issue a patent to the National Institute of Health, which applied to patent over 3,000 DNA sequences. That is about five per cent of the entire human genome.

  Europe has still not allowed the patenting of life forms, and there are strong restrictions against patenting most forms of life in Japan. Further, many new biotech developments are running foul of basic patent considerations. A number of patents have recently been refused in Europe on the basis that they are obvious, and have no innovative steps, given the state of biotechnological science and our knowledge of genetics. Some pharmaceutical developments run foul of restrictions of proprietary benefits based on the public interest in access to medicine and medical technology.

  In other words, the situation regarding patents in biotech is far from clear, and becoming murkier and less certain. Certain areas such as the patenting on unmodified higher plants have always been difficult, or impossible. The lack of clarity in regard to patents has resulted in increased pressure to use other ways of claiming proprietary interest in life and living resources. This is the basis of the push in plant rights and the rights over natural resources under biodiversity. As such, it is an area to change or propose legislation only after careful consideration, especially given the pressure to use the power of the Multilateral Trade Organisation to back up corporate proprietary claims.

  New laws framed under biodiversity, plant variety or breeders' rights, or laws such as the WA CALM Act of 1993, extend proprietary claims, and grant exclusive rights in a variety of new ways. The WA CALM Act is so poorly thought out that it gives the director of CALM the right to grant exclusive right to flora, including all intrinsic biochemical and genetic aspects of that flora, to companies. This could include granting of exclusive rights to whole genera or the flora of whole areas. The PBR Bill is simply another piece of thoughtless legislation being rammed through without sufficient consideration.

  It has been claimed that the plant breeders' rights legislation will allow rights to be granted so that the pressure to patent plants will be reduced. This is nonsense. Corporations are proceeding to patent everything they can, and it is only where patent claims fail, or are likely to fail, that lesser forms of ownership are sought. Thus PBR will only add to the options for ownership and will be used where patents fail.

  The plant breeders' rights legislation differs from plant variety rights laws precisely by coming closer to patents and allowing a broader claim and more exclusive control over plant resources. In allowing, under section 22(3), for the first time, the extension of proprietary claim beyond 20 or 25 years, the Plant Breeder's Rights Bill sets up the situation where effective ownership can be made effectively permanent.

  It is worth noting that today's biotechnology companies are usually closely linked or wholly owned by either agribusiness or pharmaceutical companies. Agribusiness has also been buying up the world's seed companies. Agricultural and textile plant patents and proprietary claims are the dominant claims on life forms. In this context, W.R. Grace subsidiary Agracetus has been granted a generic patent in the United States on all new cotton developments for the next 20 years, a patent which covers the technologies for developing new varieties of cotton. It has also been awarded a similar patent for soybeans and has one pending on rice, and is likely to apply, on a similar basis, for control of peanuts. We understand that the cotton industry is the first to apply for exception to public access parts of this bill under the proposed clause 17(2), which would effectively forbid farm saved seed.

  Farmers would know that control of the seed companies has been becoming more concentrated and has passed into the hands of agribusiness. Scientists would know that agribusiness corporations have been active in acquiring biotechnology companies, with the aim of modifying, patenting and controlling seed and crop production. This includes the development of `improved' plants whose major improvement is their ability to withstand high levels of herbicide. Monsanto has been vigorously working on herbicide resistant plants, which will allow plants to survive massive herbicide spraying to control weeds. Monsanto is also a major producer of herbicide. The green revolution was based on the production of crops that were short-stemmed and biologically able to use far more fertiliser than normal plants. They are largely poorer yielding if not given those massive doses of fertiliser, as well as requiring more than normal levels of pesticides and water.

  The companies that control agricultural inputs are often also the companies that buy crops. They will not only control seeds, and the research and development of seeds dependent on high levels of chemical inputs, but also control the markets for agricultural products. So they can work to determine what farmers can sell and therefore what farmers will grow.

  There are already commercial problems developing around the world in relation to the control of markets. The move of Chiquita, formally United Fruit and the original banana company from which `banana republic' was derived, into control of fruit wholesaling has resulted in the `Chiquita standard' banana becoming the dominant variety of banana on the market. Likewise, in the United States, we see varieties of genetically engineered or selectively bred tomatoes and other products becoming dominant through the buying practices of large chains and wholesalers, with a consequent impact on what varieties farmers can plant commercially.

  The extension of plant breeders' rights to fungi and algae are clearly inconsistent with the Union for Protection of New Variety Plants convention, or UPOV. Fungi and algae are hardly agricultural crops, and they are not frequently seen as decorative plants. Where they are used, they are generally used only in the unmodified form, such as kelp or nori, or the Agaricus brunnescence mushroom, which are traditionally used as foods. The primary interest in these classes or kingdoms of life is for industrial or pharmaceutical purposes.

  The clause would allow the ownership of yeast. It would allow the ownership of the fungi used in producing cheese varieties. It would allow ownership of algae used in the production of carrageenan, agar, or a whole range of algal products used in the food industry and other industrial applications. We therefore are introducing control of resources used not only in agriculture and horticulture but in a whole range of other industries important to Australia.

  I note with concern those people who are involved in the farming industry, including those people on the opposite benches, who rub their hands with glee thinking there are some benefits to be gained, without any real knowledge of some of the downsides of use that will be of particular disbenefit to Australia and its varieties of plants.

  The inclusion of algae and fungi under `plant' is of particular concern because of the definition in proposed section 5(1) of breeding as:

A reference in this Act to breeding, in relation to a new plant variety, includes a reference to the discovery of a plant together with its use in selective propagation . . .

It is of greater concern when coupled with the fact that `new' is not a defined term in the legislation. The demand for genuine newness in 26(2)(e)—

that the variety is distinct from other varieties of common knowledge. . .

sets the stage for granting rights to any unmodified variety of plant that has not yet been formally described. In the current state of biology, this is the case for nearly all algae and many varieties of fungi. It may also include many varieties of native Australian higher plants, particularly those with pharmaceutical potential.

  This bill represents a basic departure from the principle of the biodiversity convention, and the intention there to assure that nature itself is respected and protected, that any benefit from nature accrues to all people and that any traditional development and use of biotic resources is acknowledged and respected.

  As a consequence, companies can modify a plant slightly and then argue that anything like it is a dependant, or an essentially derived variety. No-one will argue for the common access plants that a variety is essentially derived or a dependent variety of a natural plant except, possibly, under section 35. Even there, the requirement in 35(1)(a) and 35(2)(a) that objection can only be on the basis of a commercial interest makes it difficult or impossible to object on environmental or social interest grounds.

  In short, this bill is part and parcel of the push to extend proprietary interests over all forms of life. It is a definite departure from the old Plant Variety Rights Act. It has been pushed through, in spite of the lack of clarity in relation to UPOV, the convention on biodiversity and various intellectual property conventions that seek to guarantee protection of public rather than private rights. It has been pushed through when a number of other laws which relate to this act are currently being passed or proposed at state and federal levels. It has been pushed through, when there is an adequate act in place, under the guise of updating the language. There is no excuse for this haste. If members of the government or opposition had any integrity they would send this bill up for adequate consideration with full public input and also attempt to integrate the various bills, acts and conventions on intellectual property and other claims of ownership in relation to life. This bill simply adds to the problem and, as such, its passage will be a disgrace.