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Wednesday, 13 November 2002
Page: 6199


Senator STOTT DESPOJA (12:10 PM) —I rise to speak in favour of the amendment moved in my name and that of Senator McLucas. The amendment arises as a consequence of the information we gleaned during the Senate Community Affairs Legislation Committee inquiry into the Research Involving Embryos and Prohibition of Human Cloning Bill 2002 and our respective knowledge of developments in the UK, which some of us have followed with interest and relatively closely. Senator McLucas is spot-on to acknowledge the fact that the UK stem cell bank idea is in its very early or embryonic stages—I am sorry; there are so many bad puns in this debate—


Senator Chris Evans —That is two in two days!


Senator STOTT DESPOJA —It is actually three; I am glad that you missed the other one. It was established on 9 September this year as a consequence of the UK Medical Research Council's announcement on the establishment of a national stem cell bank. As to the purpose of this bank, perhaps I should quote from the person who provided the evidence to us in the Senate committee, Mr Ilyine, the General Manager of Stem Cell Sciences, to whom Senator McLucas has already referred. When I asked him about this in the Senate committee, his comment was that it was:

... to hold all of the stem cell lines in a central point where there would be free and unencumbered access to those stem cell lines to qualified researchers.

It was suggested, among other things, that such a facility might minimise the number of embryos that would be required to create new stem cell lines. However, I think it is important for us to note that the committee was not provided with specific evidence or legal opinion on the status of the United Kingdom law in relation to this proposal. Nevertheless, on face value we believe that the idea has merits and certainly warrants further careful consideration and investigation by the persons responsible for the independent review of the act, as Senator McLucas has explained; hence the amendment to this bill as well as to the other legislation.

The purpose of this amendment is to provide an additional term of reference for the independent review of the act. Senator McLucas has explained why the time line is such as it is. It is because we recognise that, as I pointed out with the second reading amendment that was passed last night, it is more important to get it right. We have to recognise that the UK's model may not be applicable to Australia, that Australia's model may be very different from that in the UK. We may discover over the course of the early operations of the stem cell bank in the UK that there are different issues that we have to take into account.

Let us face it, the legislation that is before us—not so much the Prohibition of Human Cloning Bill 2002 but the Research Involving Embryos Bill 2002 that we will be debating next in the committee stage—is different law from that in many other countries in the world. We have looked at Israel and Taiwan. We have talked about the UK and the US. The UK legislation is different from this bill. It allows many other aspects and different types of research. So this may be one example where the different laws do not necessarily give rise to a stem cell bank that works in the same ways. Nonetheless, it is an important area which we should investigate.

I suppose that, strictly speaking, this amendment goes to matters relevant to the Research Involving Embryos Bill 2002. However, as the Prohibition of Human Cloning Bill 2002 and that other bill effectively share the same terms of reference, for the sake of consistency this amendment should apply to both bills. As you would know, Chair, Senator McLucas and I have circulated an amendment to the other legislation. In our supplementary report in favour of the legislation, we made a specific recommendation to the effect that this addition to the independent review should take place. I am aware that a number of senators in this chamber have indicated their support for such a proposal and that at least one senator has informed the media that he, too, wishes to move a comparable amendment. I thank those senators for their support and I hope that the government will consider this amendment favourably.

I make the point, however, that it is a little naive at this point to pluck an entity from one jurisdiction and simply appropriate it for Australia. That is not what we are intending to do; we are simply talking about investigating the applicability of this particular idea from the UK. Clearly, there are differences not only in the legislation that we are debating and potentially passing but also in Australia's IP and patent laws. In patent law, for example, the current Australian definition of `patent' is contained in schedule 1 of the Patents Act 1990 and remains essentially unchanged since the introduction of the first Australian federal patents legislation back in 1903. For the purposes of Australian law, within the meaning of the Statute of Monopolies 1623, an invention is:

... any manner of new manufactures ... not contrary to the law, nor mischievous to the state by raising of the prices of commodities at home or hurt of trade, or generally inconvenient ...

By contrast, the UK system introduced with the Patents Act 1977 is based on the Convention of the Grant of European Patents. It replaces the expressed definition of `invention' by reference to section 6 of the Statute of Monopolies with a list of specific exclusions from patentability. The exclusions include `a scientific theory or mathematical method', `an aesthetic creation such as a literary, dramatic or artistic work', `a scheme or method for performing a mental act, playing a game or doing business' and `the presentation of information, or a computer program'. Probably the most significant exclusion, set out in section 4(2) is:

... a method of treatment of the human or animal body by surgery or therapy or of diagnosis practised on the human or animal body ...

In respect of universities and patents, the UK has a statutory provision—sections 39 and 43 of the Patents Act 1977—for compensation of employees for certain inventions created in the course of employment. The Australian Patents Act 1990 has no statutory provision for compensation of employees. The UK, like several European countries, has a specialist Patents County Court. Australia has no specialist court, although there have been proposals suggesting the establishment of such a court. The point I make is that we should not assume that what is appropriate for the UK is automatically appropriate for our country. A stem cell bank is but one possible solution to the problems that we confront. However, this needs to be evaluated within the parameters of a broader consideration of these issues. There may be other solutions and, indeed, there may be other problems. That is why we believe our approach of adding an additional term of reference for the independent review to examine the applicability of the solution is the prudent and appropriate way to approach this issue.