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Thursday, 30 June 1994
Page: 2517

Senator SHERRY (Parliamentary Secretary to the Minister for Primary Industries and Energy) (8.03 p.m.) —I am advised that there is a fundamental distinction in plant breeders' rights legislation. The Greens, the Australian Democrats and environmental groups have supported their opposition to PBR by referring to the problem of patenting of life forms. This legislation does not do that. The government is aware, as are other governments of member countries of the convention, UPOV, that there may be problems with patenting life forms. This was the justification for the formation of UPOV in 1961 as a separate body from the World Intellectual Property Organisation, which is the international body overseeing patents. Unlike patenting, PBR law balances the breeder's right with public interest provisions.

  Neither the genes nor the plant itself are locked up by PBR, contrary to what was clearly implied by Senator Margetts and Senator Coulter earlier in their speeches. The Plant Variety Rights Act of 1987 and the PBR bill will protect plants that may be freely used for non-commercial purposes, say, by the home gardener. They are protected plants that can be freely used for bona fide research and development, and its genes used freely for breeding new varieties of plants.

  The protected plant cannot be held from the public. Farmers can freely save seed for their own use. A person cannot protect a naturally occurring variety or ecotype of a native species. There must be an intervention and a genetic change from the natural form into a cultivar. It is therefore misleading to imply that PBR is like patenting. It is not.

  If we take Senator Harradine's concern, as I said, it is theoretically possible to put a human gene in a plant. I am advised it has not occurred to date. If that happens, it will be up to the Genetic Manipulation Council, which will be codified—and I understand that the legislation will be drawn up as a consequence, at least in part, of the report that Senator Harradine was referring to—will regulate the way in which that is done with human genes.

  But if someone did put a human gene in a plant it could not be regulated by this legislation, because this legislation regulates only plants, not human genes. It cannot regulate human genes. That will be determined by the legislation. I do not know how this would be weighed up and judged but if the amount of human genetic material was so great in the plant that it was in effect not a plant, it would not be regulated by this legislation. It cannot be, because it is not a plant. This legislation can regulate only plants.

  Therefore, if someone attempted to put a human gene in a plant, there is really no sense in their doing that because they cannot protect the human genetic component under this legislation. The way in which the human gene is dealt with will be dealt with by the genetic manipulation legislation that I have referred to which we will be dealing with next year. This legislation is intended to deal only with what is defined under this bill as a plant.