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Thursday, 2 December 2004
Page: 133


Senator STOTT DESPOJA (6:07 PM) —The incorporated speech read as follows—

I rise to speak on Government document the Australian Law Reform Commission report, Genes and Ingenuity: Gene Patents and Human Health (ALRC 99).

I welcome the completion of the ALRC's final report as an important step in the biotechnology law reform debate and thank them for their wonderful work.

I have long campaigned for an investigation into patent laws in relation to genes and gene sequencing and, more recently, the issue of stem cells and their derivatives. I hope this report plays a key role in furthering the public debate on these issues.

I have a particular interest in this ALRC report because I initiated the preceding inquiry by the ALRC and Australian Health Ethics Committee (AHEC) which examined the protection of human genetic information (Essentially Yours: The Protection of Human Genetic Information in Australia, ALRC 96, 2003). That inquiry identified a range of concerning intellectual property issues and provided the impetus for this ALRC inquiry to be established.

My second reading amendment to the Research Involving Human Embryos Bill 2002, which established the ALRC investigation of Gene Patenting and Human Health (DP68), also called for the reviewers of that Act and the Prohibition of Human Cloning Act 2002 to consider and comment on the ALRC report. The ALRC recommended that review also examine the issues of the exploitation of intellectual property rights over stem cells when they consider the establishment of a National Stem Cell Bank.

While I understand the terms of reference for this review are still being finalised, the intent of the Senate was quite clear on this matter and I will take this opportunity to reinforce the importance of it.

My amendment was agreed to by a conscience vote, as noted by Senator Evans in discussion of the amendment, and the Minister should give greater weight to this 2nd reading amendment as the will of the Senate than would normally be the case of a partisan 2nd reading amendment.

I look forward to the commencement of the review and the announcement of its final terms of reference.

It is disappointing, though that this ALRC report was not released immediately after its completion on June 30. I find it intriguing that the Government delayed the public release of the report until August 31, the final day of Parliament and two days after the election had been called, when it could have released it as early as August 3. This has not been explained by the Government and appears to have been yet another example of the Howard Government withholding politically sensitive information from the Australian people and dodging Parliamentary scrutiny from the Senate.

I did not want negotiations over the Free Trade Agreement with the USA to influence the ALRC's work and pre-empt the Australian debate on gene patenting, but unfortunately, this report was constrained from the beginning. The terms of reference required the ALRC to have regard to Australia's existing or proposed international obligations in relation to patent law and practice. The Executive Summary states:

`Further, to propose specific laws for genetic materials and technologies may have had implications for Australia's compliance with obligations under various international trade agreements. As a result, some of the recommendations are aimed at improvements in the patent system in general, including a suite of reforms directed at patent office practice.'

Regardless, the report's discussion of the impact of the AUSFTA on our law and scientific practices would have been extremely useful to inform the Parliamentary debate over the legislation to implement the AUSFTA, which was passed on August 13, ten days after the report could have been released.

During the debate over the AUSFTA legislation, I drew the Senate's attention to the absence of this report and to how useful it would have been during discussion of the ALP's amendment regarding patents.

The Senate inquiry looking into these matters, prior to the Parliamentary debate, relied heavily on the advice of the Department of Foreign Affairs and Trade (DFAT). Their report into the AUSFTA implementation legislation concluded—`3.214 The Committee is satisfied that fears about `harmonisation' of Australian and United States patent law are probably unfounded. It bases this conclusion on DFAT's assurances that the AUSFTA will not change the nature of what is patentable in Australia.'

But, section 4.31 of the ALRC report states:

`The provisions of the AUSFTA have implications for reform of Australian patent law. Amendments to the Patents Act are necessary to give effect to some provisions of the AUSFTA, for example, to preserve the criterion of a `patentable invention' as a ground for revocation of a patent.[47] In other cases, where the AUSFTA reflects existing Australian law or practice, the agreement may act as a constraint on future change.'

Who are we to believe? A Department involved in the negotiations of the AUSFTA or the ALRC experts? Would the ALP have passed the AUSFTA legislation had they known the ALRC's findings on patents? All important questions that will probably never be adequately answered.

Despite the stated reluctance to recommend changes to Australian patent law, seven of the report's 50 recommendations call on the Federal Government to amend the Patents Act 1990.

The Government must respond to the ALRC recommendations through developing a new policy that will allow the genetic sciences to continue their research without undue need for patent lawyers at every step of the innovation process.

This world class report took 18 months for the ALRC to prepare, the many issues it covers deserve considerable public and parliamentary consideration and debate. Unfortunately, since receiving the ALRC's world class report, Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC 96, 2003) in March 2003, the Government has sat on its hands. This is not satisfactory government; biotechnology is moving at such a rapid rate that the Government can no longer ignore community concerns on these issues.

The ALRC has provided the necessary guidance on this issue, it now requires Government action.

Senator BARTLETT (Queensland—Leader of the Australian Democrats) (6.10 p.m.)—I seek leave to continue my remarks later.

Leave granted; debate adjourned.