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Tuesday, 3 December 2002
Page: 7024

Senator JACINTA COLLINS (4:51 PM) —I agree with Senator Stott Despoja that at this stage we should be looking at the time frame. Whilst I indicated in the debate on the cloning bill that I supported the Stott Despoja and McLucas amendment, I think I indicated quite strong reservations at the time that I preferred a stronger regime but, at that point in time, that was not available in the form of amendments to that bill. I now have the opportunity to reflect on a number of issues, and I agree with Senator Stott Despoja that the time frame issue is quite critical. She and others from the debate will recall that Senator Patterson made the point that already the review would look at some of the commercial interest issues and that what was being proposed in relation to the Stott Despoja and McLucas amendment in part fitted into the process that was already in train. But my critical concern here—and this is why I pick up Senator Stott Despoja's comment in relation to time lines—is that, unless we do something now, we cannot stop the horse from bolting.

As I understand it, we are dealing with Nettle amendment (R1). So what we are actually dealing with is a Green proposal on how to stop the horse from bolting. I would be quite happy to support, for instance, an alternative version of the rest of the Green proposal, which is the stem cell bank, if we were to amend it to refer to a commercial interests regulator—the point being, though, that we do not issue the licences until we have the regulation in place. I am also flexible on other ways of trying to prevent the horse from bolting.

As did other senators on the inquiry—and I certainly acknowledge Senator Stott Despoja's longstanding interest in this area, which has been much deeper than mine—I found very illuminating the contribution of Mr Ilyine from Stem Cell Sciences during the committee inquiry, because he addressed one of my most critical issues in this bill, which was that the bill was not really picking up the strict regulatory regime that COAG had promised us. The Senate will recall that the first issue that arose in this debate in a sense developed from issues raised in the inquiry, which was an objective to limit the number of embryos that would be utilised in this endeavour. Mr Ilyine reminded us that the European and British model of establishing a stem cell bank was done precisely for that purpose. It was part of meeting the objective of limiting the number of embryos that might need to be utilised in this endeavour.

I have already raised in the committee stage that, whilst my own ethical position does not quite equate to what has been described as the third way—which is that whilst we might find this issue ethically contentious there are humanitarian grounds for accepting it, so let us go down that path—I have tried to grapple with the best way of achieving that ambition, given that it was obvious, at least from the second reading vote, that that was the dominant ambition. In my view, if you do hold the view that human embryos have some level of value, that we should respect that value by ensuring that they are not experimented on willy-nilly, that we do not use excessive numbers in experimentation and that experimentation is only done for humanitarian purposes and not done just for commercial interests, and considering all those factors, then that is what this bill should be addressing. If at this point we are not doing something about introducing a means of regulating or containing those for-profit or commercial interests then I think Senator Brown is right: we are basically saying, `We'll look at it,' but in reality we are really saying that we probably will not get around to it, that we will not get around to it adequately or that we are not very concerned if the horse bolts in a variety of areas that we do not even fully comprehend at this stage.

I was very pleased to hear Senator Stott Despoja say, `Let's have that discussion about the time frame,' because I think that is the most critical issue. Senator Nettle's amendment is not the only way to achieve that. You can look at implementing alternative models to the stem cell bank immediately, you can look at implementing alternative models to the stem cell bank on an interim basis or, as Senator Brown has already foreshadowed, you can look at implementing the stem cell bank and modifying it as we learn from international experience. But none of the arguments so far rationalise doing nothing, because the point is that we were assured by COAG that, if we went down this path, we would have a strict regulatory regime—and no strict regulatory regime that I know of says: `Leave the blank sheet now and we'll sort it out later on.' I think this is one of the most critical issues in relation to ensuring that strict regulatory regime.

I notice that Senator Murphy has just circulated an amendment in relation to patents. Of course patents, as Senator Stott Despoja has gone into quite a great deal of detail on, are one of the alternative ways of seeking to regulate commercial interests—as in the European model, which denies patents in relation to `the unmodified human stem cell line', to use the words Mr Ilyine gave us. He gave a very interesting description of why that was the case. He said:

The unmodified human stem cell line in Europe, it would be argued, comes from nature and therefore should never be patented because a patent granted in this domain would be so broad as to be hugely inhibiting to discovery, because any discovery made on the back of that would have to relate to the original patent holder. So the European position is to say that discoveries made when using such cell lines are indeed patentable when they have novelty and all of the factors that go into making a patent. However, the unique biological material itself should not be patented because it is of human nature.

That argument is, in a sense, twofold. Firstly, there is a public interest argument, which is that discovery would be limited unless we provide some containment of this patenting process. Secondly, there is an intrinsic argument about human nature, which is that these are the types of things that we should not patent. It is a bit like the argument about why we do not accept commercial interests in the trade of blood. The argument is that public interest and humanitarian issues outweigh the argument that this should be an area that attracts commercial interests.

In Australia, I think many people would baulk at the notion that commercial interests would solve our blood bank supply problems. The regulation of the supply of blood has quite a long and detailed sociological history in relation to some of the dangers that might occur were blood regulated in other ways. In a sense this also relates to earlier amendments which asked why it is that we have accepted willy-nilly that commercial interests would apply in respect of stem cells when that has never been the response in Australia in relation to any other human tissue.

I conclude my remarks by recommending we display an enormous amount of caution in what we allow to occur here. I agree with Senator Brown that we are looking at new and evolving interests, which we can barely comprehend at this point. There is an argument for moving away from our current ways of regulating this type of material. Senator Stott Despoja will probably say in a moment that we have allowed that in some other areas, but I would agree with her that we should have been far more cautious in those other areas. I do not think it is beyond us to come up with a way of stopping the horse from bolting. I will support the proposal that Senator Nettle has moved. If there is not adequate Senate support for her proposal, I will be circulating an alternative proposal once the draft has been finalised. I will be looking at expanding on the European experience rather than the UK experience in relation to patents. To ensure that the horse does not bolt—and on an interim basis whilst we wait for the review and the recommendations of the review and for parliament to enact an appropriate regulatory regime in relation to these commercial interests—this bill should make it a condition of licensing that people not seek patents. There are some difficulties with this amendment that I am trying to work through in terms of how we can relate it to the Australian legislation. But we need to explore issues associated with international law as well.

Despite some of those concerns, I think that at this point it is better than nothing and I know of no argument that justifies doing nothing. I know that some will argue that, unless we allow carte blanche, commercial interests will go offshore. With respect, we have had that offshore argument on every single issue that we have dealt with so far. COAG assured us we would have a strict regulatory regime. I think Senator Brown is correct in that implicit in what has been said in the public debate to date is that humanitarian interests would be paramount over commercial interests. If, on a limited basis, we can do that through limiting access to patents, then that is one way.

I should also mention that, in one sense, Senator Murphy's amendment also seeks to do that but at this stage his proposal would be on a permanent basis. I am suggesting that we allow the benefit of the review that Senator Stott Despoja and Senator McLucas are suggesting but that in the interim we have some arrangement that limits carte blanche commercial interests until the result of that review. When the result of that review sets up an appropriate regime then, if it is appropriate, the restriction on patents will not apply.