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Monday, 18 November 2002
Page: 6625

Senator O'BRIEN (5:24 PM) —We adjourned 40 seconds early when this bill, the Plant Breeder's Rights Amendment Bill 2002, was being considered previously, rather than my commencing the opposition's response to these amendments as moved by Senator Cherry. I propose to deal with the amendments in order. Democrat amendment (9) repeals section 35(1) of the act and substitutes a new provision that provides an extension to the categories for which an objection to an application for plant breeders rights may be lodged. The existing subsection limits the right to object to those who believe the grant will affect their commercial interests. The amendment extends the class of people able to object to all those who believe that their interests would be affected. In this case those interests include, but are not limited to, cultural, economic, social and environmental issues.

It is important to note that the existing limitation on standing for objection is at the point of application for a plant breeders right. The existing provisions do not limit anyone's ability to contribute information to the PBR Office or to comment on PBR applications, nor do they limit the grounds upon which an application for revocation of a plant breeders right may be made. The opposition is advised by the department that there are broad grounds indeed upon which an application for revocation can be made once a plant breeders right has been granted. It is incumbent on this parliament to ensure that the legislation we enact is workable but that that workability does not compromise the public interest.

There are a number of public interest features of the current act, including the following provisions: firstly, that plant breeders rights grants are made for only a limited period of time and, at the expiry of this grant, plant breeders rights varieties become public property; secondly, that plant breeders rights grantees must make plant breeders rights varieties publicly available; thirdly, that no plant breeders rights grantee rights exist in relation to the use of propagating material as a food or fuel or for any other purpose that does not involve propagation—a matter clarified by government amendments moved earlier in this debate; fourthly, that no plant breeders rights exist in relation to plant use for private, non-commercial or research purposes, including farm saved seed and use in the breeding of further plant varieties; and, fifthly, that the Plant Breeders Rights Office publishes details of applications in the Plant Varieties Journal and accepts public comments on individual applications. The Plant Breeders Rights Office then investigates all objections and comments it receives.

We must be concerned, in the context of a scheme that underpins proprietary rights in one of Australia's most important intellectual industries, to protect the integrity and workability of the plant breeders rights application process. The opposition is satisfied that the existing provisions provide an adequate mechanism for scrutiny and accountability, including the open standing in respect of applications for revocation. In the circumstances, therefore, the opposition is unable to support amendment (9).

Democrat amendments (10), (11) and (12) seek to provide that no fee is applicable in respect of objections to plant breeders rights applications that are based on non-economic grounds. These amendments relate to the previous Democrat amendment, which the opposition is not supporting, that seeks to expand the grounds on which an objection to PBR can be lodged. These amendments provide objectors on non-economic grounds, even those whose objections lead to expensive test growing, a blanket exemption from the costs associated with those objections. There is no mechanism in the amendments to guard against vexatious objections, and the opposition cannot lend its support to such a circumstance.

I note also that the attempt to exclude objectors from costs associated with their objection does not lead to cost recovery by consultants. One group that has supplied the Democrats with a range of advice on the matters before us, Heritage Seed Curators Australia, charges $140 per hour for consultancy services on plant breeders rights, with photocopying and mail as added extras. There is nothing intrinsically wrong with this, but what is wrong is expecting the public to carry the full cost of objections claimed on public interest grounds while private groups benefit from their engagement as consultants in such a process. The opposition will not be supporting these amendments.

Democrat amendment (R13) inserts a number of provisions in relation to varieties for which a plant breeders rights grant may not be made. At the outset, it should be said that the existing subsection 42(1) provides that a plant breeders rights may not be granted to certain varieties excluded by regulation. Additionally, the very essence of the act is that it grants exclusionary rights only to breeders of plant varieties that are new. Traditional landrace species cannot of themselves earn any applicant a right under the Plant Breeders Rights Scheme. Discovery alone simply does not meet the relevant tests under the act. We understand the Democrats' concern in this matter, but the protection of indigenous plant species found on crown land and other lands, including national parks, world heritage areas, Ramsar sites and lands owned by Aboriginal communities, is not a matter that properly falls within the Plant Breeders Rights Scheme. The amendment proposes a blanket exclusion zone around significant areas of Australia for the purpose of plant intellectual property. It needs to be understood that it is not a zone that protects any plant from being taken. If the parliament is interested in stopping trespassing and theft on public land, it should enact laws that do just that. We should not seek to amend Australia's intellectual property laws to do what they cannot do—that is, to serve as de facto conservation and environment protection laws.

This amendment seeks to take some account of matters that are related to Indigenous cultural and intellectual property protection. It does not do so adequately, but it does at least acknowledge this important issue. Labor shares the view that the protection of Indigenous cultural and intellectual property is an important matter. It is, however, a matter that deserves more than passing acknowledgment in one piece of legislation forming just part of Australia's intellectual property laws, and it deserves more than passing acknowledgment in this debate. It is a matter that Labor will address as we determine, together with the Aboriginal and Torres Strait Islander people and the wider community, the key steps we must take to achieve reconciliation. It is widely acknowledged that the intellectual property of Indigenous people is inadequately protected in Australia. Existing intellectual property laws are generally considered inadequate in recognising and protecting Indigenous cultural and intellectual property rights because non-Indigenous notions of intellectual property are quite different from Indigenous beliefs. The definitive Australian report on this issue entitled Our culture: our future found that acts such as the Copyright Act, the Designs Act, the Patents Act, Plant Breeder's Rights Act and the Trade Marks Act are deficient in this regard and that measures are required to redress this shortfall. However, the key recommendation in the report is the development of specific legislation to provide protection for all Indigenous cultural and intellectual property, rather than piecemeal amendments to these acts. For this reason, Labor cannot support the amendment proposed by the Democrats.

The form and content of changes to the Plant Breeder's Rights Act to address Indigenous intellectual property is complex, and wide consultation with Indigenous communities and other stakeholders is necessary. It is therefore a matter that Labor will address as part of our ongoing policy development process, in partnership with Aboriginal and Torres Strait Islander people and the wider community. As I reported to the Senate previously, I have had fruitful discussions with Senator Ridgeway in recent days and look forward to the Senate having an opportunity to consider this important matter in some detail in the near future. In respect of this bill, Labor will support the appointment of an Indigenous representative on the Plant Breeders Rights Advisory Committee—a provision to be addressed later in this committee, and one that we hope will be supported by all honourable senators—but we will not be supporting this Democrat amendment (R13).

Democrat amendment (14) seeks to expand the specific grounds upon which an application for revocation of a PBR may be sought to include cultural, economic, social and environmental interests. It is already the case that the grounds upon which an application for revocation may be sought are not as narrow as those in respect of an objection to an application. Additionally—and for the reasons I have already outlined—the opposition does not believe every interest under the sun ought to be grounds for objection to a grant of rights under this act. We have the very important responsibility of ensuring that, when the amended Plant Breeder's Rights Act emerges from the parliament, Australia retains a functional plant intellectual property regime. We will not be supporting Democrat amendment (14). Democrat amendment (15) provides:

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

There is no clear reason why the fee exemption proposed by the Democrats should apply and that the right's holder or the Plant Breeders Rights Office should be compelled to wear the costs in relation to a revocation application. We see no justification in the circumstances and will not be supporting Democrat amendment (15).