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Friday, 15 November 2002
Page: 6548


Senator CHERRY (3:39 PM) —by leave—I move Democrat amendments (9) to (15) from sheet 2606:

(9) Schedule 1, page 6 (after line 32), after item 16, insert:

16A Subsection 35(1)

Repeal the subsection, substitute:

(1) Any person who considers, in relation to an application for PBR in a plant variety, that his or her interests may or would be affected by the grant of that PBR to the applicant may lodge a written objection to the grant of PBR with the Secretary at any time after the giving of that public notice of acceptance of the application and before the end of the period of 6 months starting with the public notice of that detailed description.

(1A) The interests mentioned in subsection (1) include, but are not limited to, cultural, economic, social and environmental interests.

(10) Schedule 1, page 6 (after line 32), after item 16, insert:

16B At the end of section 35

Add:

(4) No fee or charge shall be imposed for an objection to an application for a PBR to the extent that the objection is based on cultural, social or environmental interests.

Note: Fees may be charged for an objection to the extent that it is made on economic interests under subparagraph 37(5)(b)(ii).

(11) Schedule 1, item 20, page 8 (line 19), omit “in any other case”, substitute “to the extent that the objection is based on economic interests”.

(12) Schedule 1, item 20, page 8 (line 24), omit “in any other case”, substitute “to the extent that the request is based on economic interests”.

(R13) Schedule 1, page 8 (after line 34), after item 22, insert:

22A At the end of section 42

Add:

(4) If a plant variety is a traditional landrace plant variety or a variety which is essentially derived from such landrace plant variety, PBR must not be granted to that variety.

(4A) For the purposes of this section, traditional landrace plant variety means a variety developed over millennia by selecting favourable characteristics within a cultivated crop species, or a variety that is the outcome of indigenous peoples' traditional and customary innovations and practices. It may also be known as a “traditional variety”, “local variety” or “farmers' variety”.

(5) If an application for PBR deals with a plant variety which is a “discovered” variety as specified under section 5 of this Act:

(a) on lands owned by the Crown; or

(b) in national parks; or

(c) in world heritage areas; or

(d) on Ramsar sites; or

(e) on lands in respect of which native title has been granted, that are subject to native title claims, or that can be shown to be the subject of rights and interests by indigenous peoples, including customary and other forms of ownership unless:

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

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

PBR must not be granted to that variety.

(5A) For the purposes of this section, Ramsar site means a site declared under the Convention on Wetlands of International Importance especially as Waterfowl Habitat done at Ramsar, Iran, on 2 February 1971, as in force for Australia immediately before the commencement of this Act.

(14) Schedule 1, page 10 (after line 25), after item 31, insert:

31A After subsection 50(9)

Insert:

(9A) The interests mentioned in subsections (8) and (9) include, but are not limited to, cultural, economic, social and environmental interests.

(15) Schedule 1, page 10 (after line 25), after item 31, insert:

31B At the end of section 50

Add:

(11) No fee or charge shall be imposed for an application to revoke a PBR to the extent that the application is based on cultural, social or environmental interests.

Note: Fees may be charged for an application to revoke a PBR, which is made on economic interests under subparagraph 37(5)(c)(ii).

Amendments (9) to (15) amend the provisions relating to objections to PBR grants so that a party may object on economic, social, cultural and environmental grounds. Currently, objections may be lodged only on economic grounds. Additionally, objectors are required to pay application fees and the costs of any trials associated with the objection. The effect is twofold: one, it restricts to only a few people those who are entitled to object and, two, it narrows that even further by requiring that objectors are able to afford the costs of objection. This is simply unacceptable and, in many respects, undemocratic. This bill clearly has the potential to impact on the rights of traditional owners, public lands and the broader community.

While we recognise that there can be substantial benefits from innovation in new plant varieties, this government must also recognise that there can be substantial costs as well. Biopiracy, which I mentioned earlier, is an obvious example. If a plant variety is discovered in the wild, selective breeding takes place and an application is made for a PBR. Assume that plant is not substantially different from the wild variety; assume too that the discovery took place on public land and that the plant represents a potential drug. This scenario is not speculative but historical. Under current objection provisions, it is arguable that no-one could object in the scenario I have just set out. It is certainly true that the objections could not occur on cultural, environmental or social grounds. The Democrats are amending these provisions to ensure that fees and costs will not be charged to the extent that the objection is social, cultural or environmental. This means that one can object to an application for the grant of a PBR on the basis that the plant does not represent a new variety and that the costs associated with trials to determine the singularity of the variety are borne by the broader community in recognition that such an objection serves an important public interest.

One of the dangers or potential costs associated with new plant varieties, particularly those derived from overseas plant varieties, is whether that plant variety has the potential to become an invasive species. There is nothing in the current act that requires an applicant to indicate whether the plant type has become an invasive species elsewhere and to set out the nature and results of tests of plant varieties conducted overseas. For instance, if a plant variety has become an invasive species in Florida, there is substantial reason to be concerned at the capacity of the plant variety to become a menace here also.

For too long we have underestimated the costs of invasive species in Australia. Recently at a conference in Perth on invasive species an Australian scientist made the statement that, in terms of habitat and species loss, invasive species were a significantly larger problem than salinity. It is, or should be, a basic precautionary approach to recognise that new plant varieties have the potential to become invasive species and the potential to become significant problems in Australia and that the costs associated with invasive species can be huge over the longer term. These amendments simply add a layer of caution should the application for a PBR represent the point at which a new plant variety may be introduced into Australia.

Amendment (13) amends section 42 of the act. It ensures that plant varieties derived from varieties that have developed over millennia by selective breeding or by way of traditional knowledge and innovation cannot be granted a PBR. The exception is when Indigenous communities give informed consent and are guaranteed to benefit from a PBR. The amendment also ensures that plants discovered on public or Aboriginal lands, regardless of the degree of selective breeding that takes place, cannot be granted a PBR. The purpose behind this amendment is to ensure that the plant varieties discovered on public or Aboriginal lands remain in the hands of the community where they were found. Currently, there is no provision for Aboriginal communities, for instance, to exercise any rights over new plant varieties when the original variety was found on Aboriginal land.

Progress reported.