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Friday, 15 November 2002
Page: 6541

Senator TROETH (Parliamentary Secretary to the Minister for Agriculture, Fisheries and Forestry) (3:07 PM) — Firstly, I want to deal with Senator O'Brien's comment on item 33, which I understand to mean that an action may be begun in the court. It is not intended that any member of the public can enter into a legal dispute regarding property that is not legally theirs to dispute. This clarification confirms that it is the grantee who is empowered to take action regarding infringement of their property and no other. This is consistent with other intellectual property legislation.

With regard to Senator Cherry's comments on his amendments, similarly I would like to point out that this legislation is neither the pivot on which all plant issues turn nor inextricably linked to such matters. This legislation is simply a registration scheme of intellectual property ownership in new plant varieties. It leaves commercial, environmental and health issues to be dealt with under the legislation relevant to those concerns. This debate has been used to raise all sorts of matters that are not related to the subject matter of this bill and that are at best only distantly related to the purpose of the bill. Legislative issues must be addressed in the relevant legislative context, which I thought commonsense would have confirmed.

Claims for damages arising from GMO contamination—or, for that matter, non-GMO varieties—have and will continue to be effectively dealt with in the courts under common law. Taking the entirely inappropriate step of making provision for damages solely in the plant breeders rights context ignores all the other possible conflicts that could arise in respect of GMO matters, patented or otherwise, animal or vegetable. Common law is available to deal with such matters, and the courts are ready to make judgments on the validity of claims.

With regard to assertions that plant breeders rights is used to misappropriate plant varieties, propaganda and truth are not always the same. The truth is that plant breeders rights do not facilitate biopiracy. Australia leads the world in its endeavours to ensure probity in respect of plant breeders rights plant intellectual property registration. If you examine the PBR web site at au/pbr, the transparency of our plant breeders rights system will be apparent to you. UPOV itself recognises the Australian system to be exemplary in this regard.

Mechanisms to oppose the registration of a variety are already in the PBR Act, which provides for both comments and objections. The application process requires information on the origin of the variety, on the breeding methodology and on any restrictions that may relate to the granting of PBR. Detailed descriptions of varieties are published and furnished to all international seed banks. Australia investigates any such allegations under existing legislative mechanisms as part of its obligations under UPOV. The truth is that there have been very few allegations, and none has been substantiated.

With regard to traditional knowledge, the Australian government is conscious of the need to provide effective protection of Indigenous culture and cultural property. This is a new and complex area where traditional, national and international legal systems interact. Accordingly, there is a need to proceed carefully and not prematurely. For example, the World Intellectual Property Organisation is currently examining the issue in the Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore. Other fora, such as the World Trade Organisation through the Council for Trade Related Aspects of Intellectual Property Rights, also have an interest. Australia is a participant in these kinds of discussions. It should be also noted that the convention on biodiversity and UPOV are mutually supportive.

PBR is not the appropriate legislation by which effective protection can be provided for traditional knowledge. PBR is about new, not traditional, plant varieties. It is about rights lasting fewer than 25 years, not the long-term rights envisaged for traditional knowledge. Indeed, introducing traditional knowledge elements into PBR will not resolve the broader complex issue. In fact, it may create other problems, as breeders from overseas hesitate to release their elite varieties in Australia because they are unsure as to whether their rights have been affected. Moreover, PBR coexists with other laws of the land, which means that, if traditional knowledge is included in the appropriate legislation, plant breeders rights will fit in.

On amendment (R5), which Senator Cherry also mentioned, the eligibility requirements for plant breeders rights are that the variety must be new, distinct, uniform and stable. Establishing additional criteria would be contrary to Australia's commitment under article 5 of the 1991 UPOV convention. In addition, issues of invasiveness and risk to the environment are already covered by the Office of the Gene Technology Regulator.

Question negatived.