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Friday, 15 November 2002
Page: 6543


Senator O'BRIEN (3:17 PM) —Firstly, in relation to the example given of the native species plant altered to a very limited extent, the legislation provides very wide discretion for consideration of applications for revocation of a grant. There are fewer limitations on a revocation application than there are on an objection to an application for registration. The community involved in the example given may have existing rights under the legislation to challenge the grant now and in the future. In my view, in the circumstances Senator Cherry describes, that would be a stronger power in their hands than the proposed amendments— particularly amendment (R4), which replaces the more detailed definition of `breeding' in section 5 of the act.

This issue arises from a 1999 recommendation of the Standing Committee on Agriculture and Resource Management that the Registrar of Plant Breeders Rights address the definition of `breeding' in the act by, firstly, consulting with the breeding community to provide a clearer explanation of breeding; secondly, convening a panel of experts to provide examples of breeding methodologies that conform with the act and are in accordance with Australia's international obligations; thirdly, publishing a clearer explanation of breeding in the Plant Varieties Journal and on the PBR web site; and, fourthly, working with the plant breeding and biotechnology industries to clarify essential derivation matters, including protection for the first breeder.

The basis of the Democrat amendments is concern over so-called biopiracy where a PBR is sought for varieties that are not significantly different from those discovered in the wild. The draft report of the expert panel on breeding established by the Plant Breeders Rights Office addressed this matter in some detail. The expert panel found that the current definition is appropriate and, in the panel's words:

... encourages innovation, while providing protection for all breeders against plagiarism and vexatious challenge ...

One of the issues clarified in the panel's draft report is that discovery alone does not constitute breeding within the meaning of the act. I think that is very apposite to the example given by Senator Cherry. Section 5 of the act provides that:

... breeding, in relation to a new plant variety, includes ... the discovery of a plant together with its use in selective propagation so as to enable the development of the new plant variety.

This new variety must have a breeder and meet the criteria of distinctiveness, uniformity and stability. It is the preliminary assessment of the expert panel on breeding that legislative amendment is not necessary. In the absence of compelling evidence to the contrary, the opposition supports that assessment. I make the additional point that this matter is still under review by the expert panel, whose draft report is the vehicle for ongoing consultation with stakeholders and the wider community. Therefore, the opposition believes that it would be pre-emptive to introduce change in this regard without compelling evidence that such change is necessary. In the absence of comprehensive consultation with the industry on its impact, the opposition is also concerned that the particular definition proposed by the Democrats is unnecessarily restrictive and may have unforeseen consequences, including making registration of Australian plant species much easier overseas, effectively denying Australia the benefit of its own plant innovation. The provisions dealing with Indigenous rights import non-breeding related matters into the definition of breeding and are, in our view, misplaced.