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Thursday, 29 August 2002
Page: 4000


Senator O'BRIEN (1:35 PM) —The purpose of the Plant Breeder's Rights Amendment Bill 2002 is to amend the Plant Breeder's Rights Act 1994 to clarify the rights of plant breeders in certain circumstances where public interest restrictions are imposed. The provisions of the bill also enhance the access of breeders to the Plant Breeder's Rights Scheme and improve the administration of the act and the scheme.

While the opposition supports the bill, I will seek clarification on a number of points in the committee stage of the debate. I have advised the minister of the issues I wish to raise. The amendments contained in this bill are predominantly administrative and include a significant clarification to section 18 of the act. Section 11 of the act establishes the right of breeders to disallow certain acts of production and other activities in relation to a plant variety. Section 18 was designed to acknowledge public interest concerns regarding the limitations that breeders can place on the use of their propagating material. For example, it is not in the public interest to allow breeders to prevent the making of food staples such as bread from grain. However, the current section 18 has been interpreted such that it has denied plant breeders the right to deny any normal commercial activity in respect of their propagating material. This was not the intention of the legislation and, accordingly, the bill provides for the deletion of section 18 and the insertion of a new section that allows for certain defined public interest restrictions.

The new provisions provide that a breeder is able to exercise his or her right of authorisation of acts under section 11 except where the right is restricted by Commonwealth, state or territory legislation. Where such restrictions apply, equitable remuneration must be paid to the breeder—a provision that is consistent with Australia's obligations under the International Convention for the Protection of New Varieties of Plants 1991. The bill also clarifies the power of the minister under section 49 to impose conditions on existing and proposed breeders' rights on public interest grounds. The Plant Breeder's Rights Act 1994 is based on Australia's membership of the International Convention for the Protection of New Varieties of Plants 1991. This is a United Nations multilateral agreement establishing an internationally harmonised regime for exclusive intellectual property relating to new plant varieties. The act is a form of patent legislation that coexists with other laws. The evolution of this legislation commenced in the 1970s and has been the subject of public debate over many years. The Fraser government attempted to push a plant varieties scheme through the parliament in 1981. That scheme was considered deficient. It was left to the Senate to work through many of the unresolved issues—a situation not unfamiliar to senators under the current coalition government.

The issue of plant breeders' rights was then the subject of an exhaustive inquiry by the then Senate Standing Committee on Natural Resources, the committee handing down its report in May 1984. It recommended that a plant varieties rights scheme be established and that legislation be drafted to conform with the 1978 UN convention relating to new varieties of plants. The committee also recommended that the then Department of Primary Industries closely examine all the evidence that was critical of the original bill. The end result of that proper and exhaustive process was the enactment of the Plant Variety Rights Act 1987. That act enabled plant breeders to apply for and receive proprietary rights for new varieties of plants they developed. It was designed to stimulate plant breeding in Australia for both our domestic industries and export.

Despite the exhaustive consultation that preceded the passage of this legislation through the parliament, significant uncertainty about the impact of the scheme remained in some sections of the community. Concerns remained about the impact on the developing world, management of worldwide plant genetic resources, the ownership of essential food resources, market structures and basic consumer interests. There is a not dissimilar debate under way in relation to the use of genetically modified organisms in agriculture. While there is a general view that the potential benefits of GMOs are considerable, there is significant concern that the potential risk of GMO use might outweigh those benefits. I will come back to the matter of GMO policy and the mismanagement of the issue by the Minister for Agriculture, Fisheries and Forestry, Warren Truss, shortly.

Proprietary rights are designed to provide plant breeders, both public and private, with a means of recouping some of the development costs incurred in the breeding of new plant varieties. Plant breeders' rights are exclusive commercial rights to a registered variety of seed and are a form of intellectual property similar to patents and copyright. The Plant Breeder's Rights Scheme seeks to encourage innovation and give innovators legal protection from commercial exploitation of their products by other parties. It is an essential protection for an industry that drives domestic industry development and generates export income of $100 million per annum. Ongoing innovation in the seeds industry, driving the development and commercialisation of new seed varieties, is the key to sustaining our major rural industries. We must innovate or perish.

The recently formed Australian Seeds Authority is a nonprofit organisation established to manage seed certification and accreditation in Australia. The establishment of the Australian Seeds Authority is an important step in the evolution of the Australian seed industry and will underpin development of this emerging rural industry. In addition to seed certification, the Australian Seeds Authority is responsible for matters relating to international seed trade and the development and implementation of an industry-wide quality assurance system. I acknowledge the work of the Grains Council of Australia, the Seed Industry Association of Australia, state governments and the Department of Agriculture, Fisheries and Forestry in its establishment.

A few weeks ago, I described the Howard government as `genetically uncoordinated' in its approach to the regulation of gene technology. The Gene Technology Regulator is currently considering applications for the commercial release of GM canola. It is not appropriate for me to use this debate to comment on matters before the regulator, but I do want to note the inconsistent approach of the government to matters of seed technology management. Last year, the minister for agriculture announced a three-year project to examine the feasibility of segregating GM products across supply chains. The problem for Mr Truss and Australian agriculture is that this issue needs to be addressed long before Mr Truss's study delivers any findings. While Mr Truss pretends this matter can wait until long after he has been removed from his portfolio, state governments, industry and the community must grapple with these complex issues now. In this respect, I want to commend the Gene Technology Grains Committee for the work it has done in developing draft guidelines on the incorporation of GM technology into Australian farming systems. The Plant Breeder's Rights Scheme was introduced to promote investment, innovation and development in the Australian seed industry. The leadership demonstrated by previous governments in this area ought to be replicated in the area of gene technology today.

I have some questions relating to the impact of Australia's international treaty obligations on the Australian seed industry, questions that go to the heart of the regime managed by the Plant Breeder's Rights Act as amended by the bill before the Senate. My questions concern the decision taken by the Minister for Agriculture, Fisheries and Forestry, Mr Truss, to sign the International Treaty on Plant Genetic Resources for Food and Agriculture at the UN food and agriculture summit on world hunger in Rome this year. Can the minister advise whether this treaty requires Australian farmers to pay the United Nations a share of profits from crops grown from seeds stored in a global seed bank? Does the treaty establish a worldwide seed saver network designed to protect biodiversity and give developing countries access to new seed varieties? As the government refused to sign this treaty between 1996 and 2001, what was the basis of Mr Truss's change of mind in June this year? According to an article in the Australian on 10 June this year, the minister had a number of concerns about the transfer of genetic assets under the treaty but decided it was better to be involved to protect Australia's interests. Can the minister advise the Senate of the details of those concerns?

The same press article reported that the United States and Japan have refused to become parties to the treaty. Has the minister made himself aware of the position of the United States and Japan and, if so, what is the position of these major seed technology innovators? It appears that decisions will be made by the United States and Japan about a range of seed technology issues outside the architecture of the treaty. Clearly, Australia's involvement in the consideration of these issues by the United States and Japan will be limited. Can the minister explain the decision making processes under the treaty and the opportunities for signatories to have input into those processes?

I am also interested in the treaty's royalty program. I understand that, at the time of signing the treaty, the royalty details were not established. Have the details of the royalties and how they will be distributed yet been determined? If so, what are the details? Mr Truss is reported as saying that Australian plant breeders will profit from the new system because they can access foreign crops from the seed bank. I assume that they will have to pay for that access and I seek advice on how that access will work. I trust that the minister at the table who responds to the second reading debate—whoever it is—will assist me in better understanding the operation of Australia's seed technology regime by seeking answers to the queries that I have raised.

However, I am pleased to indicate Labor's support for improvements to the Plant Breeder's Rights Act that will clarify breeders' rights, enhance access to the Plant Breeder's Rights Scheme and improve its administration. I have previously foreshadowed my desire to seek clarification on some technical aspects of the amendments and I will do so at the next stage of the debate. I am advised that the Australian Democrats are proposing some amendments to the bill. We have not yet had an opportunity to see the detail of those amendments, but we will consider them when they are available.

Debate (on motion by Senator Ian Macdonald) adjourned.