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Wednesday, 4 December 2002
Page: 7185

Senator JACINTA COLLINS (5:24 PM) —As I foreshadowed in the debate on the first component of the Greens' amendments dealing with the establishment of a stem cell bank—although the government threw out the recommendations from Senator Stott Despoja and Senator McLucas in relation to establishing a stem cell bank that the review occur—I thought it was important that we deal with the issue of the horse bolting on the commercialisation of stem cells extracted from human embryos. The way that came to my mind that this might be achieved was by picking up on some of the evidence brought before the committee on how the Europeans deal with commercialisation. Whilst this particular model might not suit us in the long term, it is a relatively simple way of ensuring that the horse does not bolt in relation to stem cell lines until we achieve a measure to deal with the commercialisation of this research that suits our particular circumstances.

I have accepted in part the concerns raised by Senator Stott Despoja that a stem cell bank per se, and certainly the British model of a stem cell bank, may not be ideal for Australian circumstances and our regime here. I made the point quite forcefully on the last occasion that that is not an excuse to do nothing. In particular, where we have COAG, the Premiers and the Prime Minister saying we have a strict regulatory regime, principal in the ethical position that many people take is that this work should occur for humanitarian purposes and not for profit or for commercially related purposes and that we should follow the lead of the many countries that have found a variety of different means of curtailing the profit or commercial motive in furthering this research.

Amendment (R8) seeks to do that by saying that, essentially, a licence holder would lose their licence if they sought a patent in relation to unmodified stem cells. I think it is necessary to make this point too, because I know that some of the responses to my amendment have said that this would have a substantial impact on investment and that this research should go ahead. With respect, that ignores what most other regimes established to deal with this type of research have put in place in their own circumstances and it maintains the position that we should just do nothing until somewhere in the never-never we might come up with something appropriate to our particular circumstances. Under a strict regulatory regime, we should have something that prevents the horse from bolting until, if we have not got it ready now, we have the appropriate system in place to deal with these commercial interests suitable to Australia's particular circumstances.

As I have said, I looked at the European model, which we heard evidence about in the Senate inquiry. I raised this in the earlier debate but I will repeat it for senators who may not have attended at that time. In his submission to the inquiry, Mr Ilyine from Stem Cell Sciences, even though they are part of, in a sense, the commercial interests in this area, said they supported the establishment of a stem cell bank. The interesting component when I started questioning Mr Ilyine was that he had some knowledge of the UK and the European models for dealing with commercial interests and in fact advocated that such should occur. When he spoke about the European model 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.

There are two issues bound up in that quote. Firstly, there is the ethical position and, in part, even a sociological position that human nature itself should not attract patents. Some of that quote prompted Senator Stott Despoja's earlier remarks in relation to genes and gene sequences. As well as that, they said that there are good commercial reasons why this should not occur either. Mr Ilyine said that if we allow patents on stem cell lines themselves then we will create problems commercially because the patents will end up being so broad as to capture any further work in relation to those stem cells, and that will inhibit commercial work. That is an important point, too, because some of the arguments have been that this will damage commercialisation. Here is Mr Ilyine saying quite clearly that certainly from a European perspective the contrary is the case: you might inhibit research by, in a commercial sense, allowing commercial value to reside where perhaps it should not. I do not think that there is a great deal more that I want to say about this matter at this stage.

I am happy to deal with amendments (R8) and (R9) together. Amendment (R9) is part of that package. It essentially would ensure monitoring powers in relation to, at least, the Australian patent system. I accept that some concerns have been raised that internationally it might be difficult to keep tabs on whether someone who should not be seeking a patent has done so in Hong Kong, the US or the like. But, in a competitive industry, I think that if that does occur the industry itself can probably ensure that that information becomes available to the licensing committee. In the sense and terms of the limitations of our jurisdiction, that is probably the best we can do. At this stage, I seek leave to move amendments (R8) and (R9) together.

Leave granted.

Senator JACINTA COLLINS —I move:

(R8) Clause 26, page 18 (after line 31), at the end of the clause, add:

(2) If a licence holder, or an associate of the licence holder, applies for a patent under the Patents Act 1990, or for a patent under patent legislation in any other jurisdiction, for any unmodified stem cells from human embryos, the NHMRC Licensing Committee must, by notice in writing given to the licence holder, revoke each licence held by the licence holder.

(3) In subsection (2):

associate in relation to a licence holder, includes:

(a) any employee, employer, principal, officer, trustee, agent or contractor, however described, of the licence holder; and

(b) any other person as prescribed in the regulations.

(4) Subclause (2) ceases to operate when the review required by section 47 of this Act is completed and the Commonwealth Parliament enacts legislation regarding commercial interests.

(R9) Clause 36, page 26 (after line 26), after paragraph (f), insert:

; (g) obtain during normal business hours from the Register of Patents information regarding any application for a patent by a licence holder.

Senator Chris Evans —Mr Temporary Chairman, I rise on a point of order. Leave was granted to Senator Murphy to have his particular amendment deferred to this section of the debate so as to facilitate this debate. I make it clear to Senator Murphy that this is his chance and I will not be entertaining that option again. I thought the idea was that we would have one debate rather than three or four debates.

The TEMPORARY CHAIRMAN (Senator Bolkus)—I call the minister.