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Friday, 15 November 2002
Page: 6542


Senator CHERRY (3:14 PM) —by leave—I move amendments (3A) and (R4) on sheet 2606:

(3A) Schedule 1, page 3 (after line 14), after item 2, insert:

2D Subsection 3(1)

Insert:

traditional knowledge, innovations and practices means that knowledge and those innovations and practices that have been and continue to be developed and practiced by indigenous peoples in accordance with their traditions and customs.

(R4) Schedule 1, page 3 (after line 14), after item 2, insert:

2E Section 5

Repeal the section, substitute:

5 Definition of breeding

A reference in this Act to breeding is:

(a) the process of developing new plant varieties by cross-pollination and selection;

(b) in perennial plants, the process of discovering mutations in such plants, and then selecting and propagating from them so as to establish a new variety;

(c) the process of discovering a plant variety that has grown from seed, which has new, distinct, uniform and stable characteristics, together with its use in selective propagation over 3 generations;

(d) the process of deliberate mutation and propagation via tissue culture using in vitro techniques;

but may not include plant varieties and species that are the result of indigenous peoples' traditional knowledge, innovations and practices unless:

(e) the prior informed consent of the holders of such knowledge, innovations and practices has been sought and received; and

(f) equitable sharing of the benefits arising from the utilisation of such knowledge, innovations and practices have been agreed to amongst the parties.

Amendment (3A) to the Plant Breeder's Rights Amendment Bill 2002 inserts a new definition of `traditional knowledge, innovations and practices', recognising that these will be developed and practised by Indigenous peoples in accordance with their traditions and customs. That fits into amendment (R4), which changes the definition of `breeding' in the Plant Breeder's Rights Act.The definition we propose is stronger and more specific. As it currently reads, discovery of a species and some selective breeding may be sufficient for the granting of plant breeders rights. There are documented cases of plant varieties discovered in the wild, selectively bred and then issued a PBR even though the plant variety is not substantially different from the wild variety. This amendment elaborates on the breeding requirements for a discovered variety to be considered eligible for a PBR. This is one of several amendments being proposed by the Australian Democrats in an attempt to reduce the levels of biopiracy and to address the fact that, contrary to the assertions made earlier by the Parliamentary Secretary to the Minister for Agriculture, Fisheries and Forestry, Australia has one of the world's worst records of biopiracy.

The amendment also ensures that plant varieties derived from traditional knowledge, innovation and practice cannot be granted a PBR unless Indigenous communities give informed consent to the breeding of the variety and are ensured benefits from the granting of a PBR. There are obvious reasons for ensuring that Indigenous communities are provided with proactive protection at law in relation to varieties that have been traditionally derived and used. The Australian Democrats recently spoke with a holder of a PBR variety that was, and still is, used by Indigenous people in Australia. The company has entered into an agreement with the Indigenous community but freely admitted that, if they sold the company tomorrow, there is no legislation to ensure that any subsequent owners would provide such benefits. This would be unacceptable to all Australians.

The Plant Breeders Rights Scheme allows tests of new varieties to be conducted by employees of the applicant, limits objections to new plant varieties, makes objection difficult and expensive and fails to provide rights to Indigenous communities even if the plant was originally discovered on their land. Evidence suggests that exclusive rights are being granted under the act to many plants that are not sufficiently different from plants discovered in the wild. For example, four years ago Australia was cited by the Canada based Rural Advancement Foundation as having the worst record of any industrialised country for biopiracy, being responsible for 80 per cent of the documented cases of dubious plant variety claims. Little has changed since then. Biopiracy, including the patenting of plant learning acquired through generations of Indigenous people, has continued. Plants traditionally used by Indigenous people have been claimed as new varieties and granted a PBR. There are cases where the legislation is not sufficiently followed, the tests are not sufficiently stringent or the applicants simply disguise the source of the plant variety. The Democrat amendments will reduce the chances of biopiracy of plant varieties from Indigenous lands and increase the capacity of Indigenous communities to object where biopiracy is occurring. I commend these amendments to the chamber.