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Wednesday, 4 December 2002
Page: 7197


Senator MURPHY (6:33 PM) —by leave—I move:

(1) Clause 2, page 2 (table items 1 to 4), omit the table items, substitute:

1. Sections 1 to 48 and anything in this Act not elsewhere covered by this table

A single day to be fixed by Proclamation subject to subsection (1A)

(2) Clause 2, page 2 (after line 8), after subclause (1), insert:

(1A) A Proclamation under item 1 of the table must not specify a day that occurs before the day of commencement of amendments to the Patents Act 1990, which provide that no diagnostic, therapeutic or surgical methods arising from human embryo and human embryonic stem cell research can be considered patentable inventions for the purposes of that Act.

I want to be brief because I spoke in support of the amendments I have proposed during the debate on Senator Collins's proposed amendments. I want to pick up on some of the points that were made during the debate. Firstly, Senator Evans says that the Patents Act provides protection—yes, it does. It provides protection for patent claimants but it does not provide protection for the Australian community, from a health point of view, in findings that might go to therapeutic, surgical and other remedies. It does not provide protection to ensure delivery to the Australian community of those things in an affordable way. That is what it does not do.

I am not suggesting ad hoc changes. As I said, there is ample legislation around the world in countries like the UK, France, Germany and Canada—and even take account of what exists in the US—for a smart draftsperson to give consideration to this in a very considered way, not in an ad hoc way, and to develop legislation and to determine the shortcomings if there are shortcomings in the application of legislation overseas. That is not going to take a long time. If you read the Senate report you will see that medical treatment applications from embryonic stem cell research are yet to be made. We are not holding anything up here. What Senator Collins suggested in her amendments was very valid. Why should we proceed to put legislation in action that allows for research and subsequently allows for patents to be claimed? As I said, there is a tendency now for patents to be claimed more and more on the basic, upstream research and that is the fundamental problem. I do not want to see an ad hoc approach.

I welcome what the minister has said in respect of the Australian Law Reform Commission inquiry. That is great. But why now? It seems that this is a response to the circumstances that have arisen out of the debate on this bill. Yes, the Australian Law Reform Commission and AHEC may have made some recommendations that this needs to be further considered. But even the NHMRC guidelines, which have been around for a while, say that more consideration needs to be given to this. Why is it that we suddenly decide we should do something about patents right now?


Senator Patterson —That didn't happen.


Senator MURPHY —Minister, I read out the answer that was tabled by Senator Minchin today, and he says:

In light of recent concerns regarding patenting in the human biotechnology area the Government is giving active consideration to a review of this issue.

Well, that is great. But, you see, actively considering a review is not going to solve the problem following the proclamation of this piece of legislation and the research that will occur shortly thereafter. Nor will it solve the problem of the potential for patent claims to be made. If the government were really serious about `safeguarding human health' and ensuring that `Australia captures the benefits of biotechnology for the Australian community', as was stated in the government's vision for biotechnology, then it would not allow this research to take place until it had put in place the types of patent laws that are necessary. I say to Senator Evans that there need to be patent laws that will enhance the investment in this area, not stop it or discourage it. I note that Senator Stott Despoja, although she is not here at the moment, said that this has been a long time coming. Yes, it has, and we should not allow legislation to pass through this parliament and to become active without doing this first. This is not a question of adhocery. This is a very serious matter. This is about protecting the national interest from a human health point of view. That is what we should be doing.

As I said at the outset of this debate, I do not have a philosophical or ideological position with regard to research involving embryos; I really do not. But I think the objective of this parliament should be to ensure that the legislation that we pass passes in a sound way and has the capacity to operate in the public interest. That is what is important and that is why the amendments that I have proposed should proceed. They do not stop the effect of this bill overall, but they will ensure that the right foundation in terms of patents laws is in place to make sure that we really do get the Australian public interest at the forefront and not on the back foot.