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Thursday, 30 June 1994
Page: 2431


Senator CHAMARETTE (1.27 p.m.) —The Plant Breeder's Rights Bill 1994 proposes to replace the Plant Variety Rights Act 1987, which would be repealed. The bill is designed to ensure that Australia's plant variety rights scheme conforms with the 1991 convention of the International Union for the Protection of New Varieties of Plants, UPOV. To implement UPOV 1991 here, the Commonwealth government is enacting this Plant Breeder's Rights Bill, which goes even further than the UPOV 1991 convention in sweeping away the public interest safeguards included in the PVR Act of 1987.

  Greens throughout the world have a fundamental philosophical problem with the concept of granting an individual or corporation a substantial right to control, manage, genetically manipulate and earn money from plants. Greens also disagree with plant breeders' rights because that encourages secrecy in research, restricts free exchange and places monetary profit above the needs of human beings. It is an indictment of our society that we place profits above the needs of starving people. While there is one starving person on this planet, plant breeders' rights remain a symbol of our society's inappropriate value system.

  On a practical level, the government is proposing some significant policy changes in this bill. The Department of Primary Industries and Energy, the minister and the PVR office have all argued that this bill is well within the scope of the original legislation, that it is largely a rewriting into plain English and, indeed, that it contains no new policy issues or changes. The Greens (WA) believe that any major policy shifts in the area of intellectual or property rights over living things should have the widest of community scrutiny and consultations.

  The department has argued that the exhaustive public debate through the 1980s canvassed all of the important ethical and practical issues relating to the PBR. However, the debate tended to concentrate on the issue brought up by particular legislative proposals and did not thoroughly cover all the serious matters raised by PBR. In fact, this bill contains at least nine important policy shifts. Each of these areas deserves a full public debate and should not slip through this parliament quietly.

  The Australian Conservation Foundation, Greenpeace, and many other concerned groups and individuals have done all that they can to stimulate public debate and awareness of the issues in this bill. However, all this parliament was able to muster was a one-day hearing with a few days notice. Even at this late stage, I hope that honourable senators will have the good sense to refer this bill to a committee again for more extensive community consultation.

  As I have said, there are at least nine specific policy shifts that are of serious concern. First, the bill widens the definition of plants to include organisms such as fungi and algae, whereas they were specifically excluded in the original act. Senator Margetts has already referred to the detail of this. The 1991 UPOV convention did not cover this area, so I agree with the ACF that the government needs to fully justify why this should now be included.

  Section 6 of the bill allows for transgenic organisms that have been altered by the introduction of genetic materials from the animal kingdom to also be treated as plants. This is well beyond the 1991 UPOV convention and raises serious ethical dilemmas about the level to which our society should sanction and, indeed, provide financial protection to persons and companies that engage in manipulation of genetic material.

  As Senator Margetts has already mentioned, the bill allows for an extension of the duration of the plant breeder's right beyond the period of 25 years. If this is not a significant shift in policy, I do not know what would be classed as such. This moves the right of a breeder closer to that of a patent. At the same time, the bill narrows the circumstances under which PBR can be revoked, as well as narrowing the public interest provisions contained in the 1987 act. Dr David Godden, in his submission to the committee stated:

The most dramatic case of diluted public interest provisions concerns extension of PBR to cover non-commercial varieties. . . s19(11) appears to expressly exclude non-commercial varieties from any action by government in the public interest.

It is grossly improper for this government to move to limit the public interest in such a divisive area of public policy without fuller consultation.

  The bill also includes provision for farm saved seed but a closer look shows this inclusion to be almost worthless. A commodity producer can stop farmers from saving seed so as to protect the interest of the right holder. It effectively means that farmers will face the prospect of buying seed anew each year.

  Another clear example of a policy shift is the inclusion of criminal penalties for offences. Not only are we more willing to support and provide financial protection to persons and companies which engage in manipulation of genetic material and exercise these almost patent-like rights, but we can use criminal penalties for those who may be acting in the public interest to prevent some of that occurring.

  Under the 1987 act, infringements were a matter of civil prosecution by the owner of the right. Now the Australian Federal Police and the Director of Public Prosecutions will be involved in the enforcement of criminal sanctions. And why? Because otherwise, we are told, the companies which own the best varieties simply will not release them for sale in Australia.

  The bill introduces the concept of essentially derived varieties. However, the definition of this important new concept is sloppy and inadequate. The current definition in the bill states:

a plant is taken to be an essentially derived variety of another plant if: (a) it is predominantly derived from that variety.

What does `predominantly' mean? Does 51 per cent mean predominant or should it mean 95 per cent or 99 per cent? This needs to be far more thoroughly defined.

  The WA Greens firmly agree with many others that if measures against essential derivation are to be enacted then the essential characteristics of a particular variety should be specified and claimed by the breeder at the time of making the application. Dr Godden's submission to the standing committee stated clearly that it is unacceptable for Australia to ratify the 1991 UPOV convention, at least to the extent that particular plant breeding techniques are identified with essential derivation.

  Matthew Baird, a legal consultant with the Cape York Land Council, gave evidence to the standing committee about native title and a potential conflict between Australia's commitment to UPOV and its commitments to its indigenous people. Senator Woodley's minority report from the standing committee states that the question of whether native title extends to genetic material has not yet been proven in a court.

  The whole area of genetic material and indigenous people's rights is a long way from resolution and fraught with difficulty. At that stage in the community, people are not aware of the extent to which legislative procedures tie things up and it is of great concern that we pass legislation that does that. A symbol of this, but not necessarily related, is something that is happening in Western Australia. Just as the neem tree was used for centuries by Indian farmers and doctors for medicinal and hygiene purposes, the tree's chemical properties are now subject to US patent. Similarly, concurvone, an active ingredient in the Western Australian smoke bush, has been patented by the US national cancer institutes.

  Now, whether or not the Plant Breeder's Rights Bill allows things to be used for good purposes, if the mechanisms by which they are brought out deprive indigenous people of their true cultural voice and rights and deprive all people of their rights, it is a very serious matter. I note that this bill is going to pass with the usual support of the government and the opposition voting together and with the Democrats and the Greens opposing it.

  I close with the wisdom of Boynton. The front page of a Boynton card may actually clarify the `moo' comments that have been seen in our office window. It shows a meeting—a room full of cows and one horse which is looking rather bewildered, and which is being told by the cow chairperson, `All those in favour say "moo"; all those against say "neigh".' The motto on the inside of the card clarifies it even further. It says, `Just because you are outnumbered, doesn't mean you're wrong.'