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Monday, 18 October 2010
Page: 530

Ms SAFFIN (8:53 PM) —I commend the honourable member for Fremantle for moving this private member’s motion, which I support. This is an issue which has long concerned me, and I was so pleased to see that the member had it listed for debate. I have had so many positive messages from people all around Australia asking me to support this motion. I told them that I do support the motion and will be speaking on it. The support for some action in this area comes not just from women but from a whole range of groups covering the political spectrum—not partisan political but across ideologies.

Some months ago a law graduate from Southern Cross University, Keda Ley, did some research for me on this issue, for which I thank her. I will speak on some of the research she did for me. She said that, from a women’s rights and human rights perspective, the Women’s Network of the United States argues that ‘isolated DNA constitutes an unpatentable product of nature whose patenting harms women by stifling innovation and interfering with patient access to medical testing and treatment’. I agree. She also said proponents of the patenting of isolated human genes argue that an overall abolition of such patents would result in the stifling of genetic research because the incentive to invest in such research would be gone. I disagree. We heard the honourable member for Fremantle talk about people who know far more about this than I do—especially Professor Joseph Stiglitz—and they disagree.

There are also arguments against patents on human genes, which is clearly unethical because genetic material is the common heritage of humanity and it should not be subject to private ownership and exploited for profit by private owners. Furthermore, patenting such material may also hinder further development. I argue that human genetic material and isolated human genes should remain in the public domain.

As we know, the current position in Australia is that patents may be granted over selected genetic material or other methods or products used in testing for mutations in a gene or genetic sequence. For example, a United States company which we know of, Myriad Genetics Inc., holds patents internationally on isolated genetic materials associated with breast and ovarian cancer. Myriad’s patents also cover methods for predictive testing and products and processes involved in its breast cancer predisposition test, which is called ‘BRACAnalysis’. And we know about BRCA 1 and BRCA 2. There was a High Court case dealing with this, but it was in 1959. I think we have moved on a bit since 1959. If it were tested in the courts, it would be interesting to see what they say. But we can actually deal with this here. In its discussion paper No. 68 on gene patenting and human health, the Australian Law Reform Commission says, among other things, that there are many existing mechanisms through which problems might be addressed. These include the use of the compulsory licensing and Crown use provisions of the Patents Act and laws dealing with anticompetitive conduct and prices surveillance.

There are also ways in which the Commonwealth, state and territory governments, as funders and purchasers of healthcare services, may be able to influence the way in which patent holders exploit or enforce patent rights. Mandatory licensing, as suggested by the ALRC, is one way to go, but it would involve the Commonwealth having to pay just-terms compensation. I do not want more public money paid out in just-terms compensation on this issue, and it does not solve the ethically problematic issue of the private ownership of human genes.

The legal argument as to why genes are not patentable under the Patents Act is that, for subject matter to be patentable, it has to be an invention, not merely a discovery of something pre-existing in nature. The discovery of genes and gene sequences is just that—a discovery. Hence, in my view, it is not an invention and should fall outside the patents system. Explicit exclusion of human genetic material from the Patents Act would lay to rest any argument that human genes are patentable.

The policy argument about the incentive role of patenting is that it ensures innovation continues. But patenting can also hamper research, innovation and scientific progress by giving private owners too much power to name the price for the use of genes in research or experimentation—at an unjustifiable cost to society.