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Thursday, 30 June 1994
Page: 2433


Senator SHERRY (Parliamentary Secretary to the Minister for Primary Industries and Energy) (1.37 p.m.) —In response to that last little ditty, as I would describe it, we are in a democracy, as the government and the opposition have found out, and the Democrats and the Greens are quite capable of moving from one side of the chamber to the other and exercising their balance of power. On this occasion, it appears that they will be on the losing side, and there is nothing new in that for any of us, frankly. It appears that the Democrats and the Greens have decided to fight in the trenches on this piece of legislation and I am going to respond fully to the issues that have been raised, not only because of the particular importance that the Democrats and the Greens attach to this matter but also because I do have some time to do that. I hope that I will not have to repeat my response in the committee stage. It is a bit unfortunate that—


Senator Chamarette —No.


Senator SHERRY —I thank the honourable senator for indicating that I will not have to repeat myself in the committee stage. Firstly, I will deal with some general comments about the legislation. Then I will deal with some of the specific issues raised by the various speakers in the debate. This bill was introduced and read a first time on 24 March. It is now the end of June and we could be sitting reasonably late tonight. Given that it was introduced on 24 March, I do not think it could be fairly claimed by the Democrats and the Greens that this piece of legislation is being rushed through.

  The bill was referred to the Senate Standing Committee on Rural and Regional Affairs and its report was tabled on 31 May. That report corroborated the government's viewpoint—a point that was made in my second reading speech—that the PBR Bill was not a major departure from the Plant Varieties Rights Act of 1987. The committee also did not agree with the view that the passage of the bill should be delayed. The standing committee also endorsed the policy framework underpinning the bill that would allow Australia to ratify the 1991 UPOV convention.

  The government concurs with the committee's recommendation that greater transparency be introduced into the process of developing regulations on farm saved seed and the duration of protection and has accordingly moved an amendment to the bill. If I need to, I will talk about that in some detail later on in the committee stage.

  The standing committee hearing, and its consideration of the written submission, was the culmination of an extensive five-year period of consultation on this legislation. I stress that for five years we have been considering this legislation. As you, Mr Acting Deputy President, outlined in your speech on this legislation, it was first introduced back in 1982, more than a decade ago. So it is not as though the debate on this particular legislation and the successor bill that we are dealing with today has not been very lengthy and intensive. In fact, I think we could quite reasonably claim that this has been a piece of legislation that in principle has been before the Senate longer than almost anything I can recall in my four years here. It is blatantly false to claim that it is being rushed through.

  The bill that we are considering is not a departure from the existing act. That itself was preceded by a 15-year period of consultation that Senator Chapman and others have referred to in their contributions to this debate. It is time to proceed without further delay with the PBR bill. It is an improved piece of legislation drafted in plain English. It conforms to the 1991 act of the UPOV convention. It provides a sensible and workable balance between the breeder's right and public interest concerns that have been expressed over some 20 years of the debate. It fulfils Australia's obligations under GATT, and it does not conflict with—in fact it complements—the biodiversity convention.

  I turn to some of the specific issues raised by honourable senators. Senator Panizza acknowledged a vested interest in this matter. He raised the issue of certificates, who gets them, the problems relating to share farmers and whether a farmer is able to use seeds if they are involved in a share farming operation, who owns the food—he raised a variety of particular problems. To be fair to Senator Panizza, he was not aware of the government's amendment dealing with clause 68A, which apparently has been accepted by the opposition. I am not going to go into the details of that amendment, but I believe it does overcome the particular concerns that Senator Panizza had.

  Senator Woodley's contribution on behalf of the Democrats about the ownership of life was deep and meaningful, and thought provoking for those senators who were here to listen to it—I think Senator Panizza was one of those. It raised legitimate issues about the public debate of so-called patenting, or intellectual and property rights, in a variety of areas. However, this legislation is dealing with plants. We are not dealing with the intellectual and property rights relating to human beings or other parts of the animal kingdom. Whilst Senator Woodley's contribution was thought provoking, frankly, a large part of it was not relevant to the legislation before the chamber.

  One area of Senator Woodley's comments that I do take exception to is where he referred to vast stockpiles of food, saying that delivery of food is the problem: the financial system puts a block in the way of food delivery and that that really was the problem that we should be dealing with—we should not be dealing with plant variety rights. I have to say that is a very simplistic approach to the problem of the stockpiles of food around the world. It ignores, for example, a very complex set of problems of overproduction by both the EEC and the United States. They overproduce, they export that overproduction and there are enormous environmental and economic problems with that overproduction, and cross-subsidies directly affect the economic viability of Australia's agricultural exports. Also, it is environmentally non-sustainable.

  For Senator Woodley to claim that all of the world's problems in the area of food production are primarily a problem of transporting food from the area of production to those areas not able to produce food, is a grossly simplistic approach to this particular problem. He goes on to claim that we should not be dealing with this particular piece of legislation because the delivery of food is all down to the financial system and the transport system. That is a complete nonsense argument. I am very disappointed with Senator Woodley's contribution in this area.

  Senator Brownhill made some fairly critical comments about the Democrats and the Greens and their approach. I think he was appropriately critical in the circumstances. One area that Senator Brownhill dealt with—I am pleased to see the opposition taking greater cognisance of this—was the area of trade. Senator Brownhill said:

. . . not only to our country but also to trade, making sure that we are in unison with the rest of the world. Australia is a part of the modern world.

Senator Brownhill was referring to the UPOV convention upon which this legislation is based. For those people who are not aware of this convention—I had a good discussion about the UPOV convention with Senator Kemp, who was not aware of it, and I am disappointed he is not here—it is known as the International Union for the Protection of New Varieties of Plants, commonly known as UPOV. Australia has acceded to that 1978 UPOV convention.

  I am particularly pleased that there is at least one convention that the opposition is anxious to support and that we have found one that we can all agree on. The government has been very consistent in its approach to conventions but, unfortunately, on this occasion the Greens and the Democrats have decided that this is a convention that they cannot agree on. I think this highlights the difficulty we are having in this area of debate. However, I am pleased that at last we have found something in this area that the opposition can support. Senator Boswell has made similar urgings of support for the UPOV convention and of international conventions, in general, in a number of other areas.

  In the area of research funding, Senator Coulter maintains an absolute purist view of the world. He has said that we do not need this convention because the CSIRO will do all of the research that we need to do in the area of plant development. Let us put aside the issue of the resourcing of the CSIRO: that will be an issue of some argument before another senate committee. The CSIRO does not have a monopoly on, or some sort of exclusive right to, all of the scientists in the world doing research in the development of new plant species. The CSIRO simply will not be able to do all of the research. Even if it were financially able to do it, it would not have access to many of the leading scientists in the world who make a contribution in this area.

  By taking this purist view of research, Senator Coulter wants to ignore and block Australia from accessing what is occurring in other parts of the world. It is simply an impractical approach by Senator Coulter. Senator Margetts made a number of comments about this matter—that it is being dealt with in undue haste; that it is a thoughtless piece of legislation being rammed through without due consideration. As I said earlier, this legislation has been before the parliament, in its first form and in a modified form, for 15 years. It has been the subject of two Senate inquiries and it was the subject of the Lazenby inquiry.

  We could not have had a greater public debate and more public input on any piece of legislation before the Senate. Then Senator Chamarette said that this legislation places profit above starving human beings on this planet. What does she mean by that? We had starving human beings on this planet long before we had even a thought about plant variety rights. Long before we had the legislation, we had starving human beings on this planet. We have had starving human beings for thousands of years. That is very regrettable and it should not occur but what on earth has that got to do with this legislation? Hopefully, arising from this approach—and I think it is occurring from what I have seen—we will have the development of new types of plants that will mitigate and minimise. Unfortunately, I do not think we are going to be able to eliminate starving human beings altogether from the face of this planet; I only wish we could.

  Hopefully, we will be able to increase production. This is occurring in a number of areas. Productivity improvement in agriculture will enable us to feed those starving humans. More particularly—returning to that issue Senator Woodley raised—those people in some areas of Africa will be able to grow their own food with these new varieties. Economically and environmentally, it is sustainable. We will see an end to the dreadful practices in Europe and the US of subsidised food production being carried out in an environmentally unsustainable way at Australia's cost, as well as the cost of those starving human beings particularly in those parts of Africa.

  I really do get very concerned when we get these arguments from Senator Chamarette, Senator Margetts and, to some extent, Senator Woodley that somehow this is contributing to starvation on the face of the planet. It is an absolute nonsense argument. Very quickly, in the few minutes remaining—


Senator Panizza —They are the ones who want to ban chemicals as well.


Senator SHERRY —That is right; they want to ban chemicals as well. Whilst I think we would all agree that chemical use should be minimised, it is necessary in many areas of agriculture. I really do think that when attempting to move into that bleeding heart argument the Greens and the Democrats should be a little more practical in their approach. I am sorry that they are not here to listen to my rebuttal of their position.

  Very briefly, this is not a major departure from the PVR Act 1987. The weight of legal and technical opinion does not support the view that has been enunciated by the Democrats and the Greens. We have had advice on that matter but I will not go into the details because of time. Senator Chamarette and other senators in opposition to this legislation talk about criminal penalties and the intellectual property law. They say that this is something new and it is not in the national interest. Criminal penalties and intellectual property law such as the Copyright Act and the Trade Marks Act are well-established policy. In fact, what is the sense of having a piece of law if we cannot enforce it?

  These policy implications were raised with the criminal law section of the Attorney-General's Department and are not considered to be a major policy change. The penalty provisions in the PBR Bill conform to those in the Crimes Act 1914. As I said, there is no sense in having a piece of legislation without some form of appropriate penalty. If we do not have these penalties then the people that develop these, should they develop these new types of plants overseas, are not going to be prepared to provide them to Australian growers.

  The inclusion of fungi and algae is a major policy change. That has been asserted by the Greens and the Democrats. The UPOV convention is silent on the definition of plants, so the inclusion of fungi and algae is not in conflict with the convention. It is not necessarily something new. Australia has adopted the traditional view that there are two kingdoms: plants and animals. Since algae and fungi are clearly not animals, they are plants. In the 1991 UPOV convention and in the proceedings of the UPOV diplomatic conference in 1991, there is no intention to limit the scope of plant only to higher plants. Separate written advice from the UPOV secretariat confirms that the inclusion of micro-organisms would not be in conflict with the 1991 UPOV convention. Australia has specifically excluded bacteria and viruses.

  There has been some criticism that the PVR Bill recognises trans-genetic organisms, and deletion of section 6 has been proposed. New varieties of trans-genetic plants are eligible for PVR under the current PVR Act of 1987. Like the PVR Act of 1987, the PVR Bill recognises, as does the 1991 UPOV convention, that new varieties of plants—and I stress `plants'—as products of plant breeding are eligible for protection under PBR law; that the genetic engineering is plant breeding; that insertion of non-plant genes into plants is a common means of breeding new plant varieties; and that all new plant varieties are eligible for protection. The exclusion of new plant varieties from breeders rights purely because they were bred by different means would be in contravention of the 1978 or 1991 acts of the UPOV convention.

  There is the issue of the PBR Bill extinguishing native title. This assertion was the basis of a submission to the Senate standing committee hearing on the PBR Bill. The government has sought legal and constitutional opinion of this matter from the Attorney-General's Department, which has the view that no provisions of the bill extinguish native title or contravene the biodiversity convention. Frankly, it is an absolute red herring for the Greens and the Democrats to raise that.

  Unfortunately, Senator Panizza was not in the chamber when I dealt with that issue that he raised in respect of the rights of the breeder. It does not extend to the use of grain or other harvest products from protected varieties as food or stockfeed. There is an amendment 68A that Senator Panizza might like to look at, which deals with some of the concerns he raised.

  I thank honourable senators for their contribution to the debate. For all of the reasons I have outlined in winding up for the government, this legislation should be passed by the Senate. From my day-to-day contact in the horticultural area, it is urgently required. (Time expired)

  Question resolved in the affirmative.

  Bill read a second time.

  Ordered that consideration of the bill in Committee of the Whole be made an order of the day for a later hour of the day.