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Thursday, 10 October 1985
Page: 1010


Senator ROBERTSON(4.44) —I remind the Senate that we are debating the Horticultural-Plant Variety Rights Bill 1984 [1985]. The debate has ranged fairly widely this afternoon, although I suppose that this is to be expected in such a sensitive area. My interest in this area was heightened when the Senate Standing Committee on National Resources investigated plant variety rights. The Committee did this twice. In 1982 the PVR 1982 Bill was referred to it for consideration. It will be recalled that the Committee's investigation was not concluded when the elections were called. In 1983, with the election of the new Government plant variety rights was referred to the Committee as a full topic. I had the fortune of being a member of the first Committee and the somewhat doubtful privilege of being Chairman of the second Committee. We put down our report in 1984, as has been mentioned already by Senator Watson, and the Government's response to this came out in 1985. The Minister for Primary Industry (Mr Kerin) was kind enough in his opening statement to say:

The Senate Standing Committee on National Resources has produced a lengthy and detailed report on this controversial issue.

He went on to say:

The sensitivity of the subject is reflected in the fact that two members made a minority report.

One of those two members who made the minority report has already spoken this afternoon. I note that Senator Hill's Bill picks up many of the recommendations of the report. Let me say at this stage that the Government has no serious difficulty with the Bill. I think it represents a decided improvement on the 1982 version but I have to make the point at this early stage that the Government cannot support the Horticultural-Plant Variety Rights Bill 1984 and I hope that the debate will be adjourned at the end of this afternoon's discussion. I will explain the reasons for this later after we have had a little more discussion.

I shall limit myself to dealing with those areas where there is agreement between the report and what I might call the `Hill Bill'-if I can use that term without being unkind-where there is partial agreement and where there are some problems seen by both the Committee and the Government. I will not attempt to meet the arguments raised by other speakers. Most of these have been covered in the report, to which I commend their attention. It is a rather slim document but it is well worth studying.

I remind honourable senators at this early stage that the Bill suggests in its title that it is limited to horticulture. The Committee looked at the total picture of PVR. The basic recommendation that came out of our report was:

. . . that the Commonwealth consider the introduction of a PVR scheme in Australia.

That wording was arrived at after a great deal of discussion. Obviously, the discussion ranged around many of those sensitive areas that have already been hinted at, some of which have already been discussed. Whether Senator Hill's Bill relates only to horticulture will have to be decided by those people who will vote on it. Suggestions have already been made by some speakers that it goes beyond horticulture. My colleague Senator Zakharov indicated-as I will do later in my comments-that horticulture is not defined within the Bill and it might leave itself open to a wider range than perhaps its title suggests. I repeat that the basic recommendation of the Committee was:

. . . that the Commonwealth consider the introduction of a PVR scheme in Australia.

The setting up of the Lazenby inquiry, to which I will refer later, had nothing to do with the minority report, as suggested by two of the speakers; it followed quite clearly on the fact that the recommendation was that consideration be given to the introduction of such a scheme. Of course, there were a number of other recommendations flowing from the basic recommendation and these can be dealt with.

Senator Hill's Bill suggests that the scheme should apply to:

. . . new horticultural varieties discovered or produced by a deliberate program of breeding.

In his Bill he suggests that the originator would be required to show that a new variety is distinct, uniform and stable-the normal conditions. It may be worth while for me to mention just how those have been defined. The DUS standard is normally defined in this way:

distinct-can be distinguished from all known varieties by an identifiable characteristic

uniform-members of a sample have characteristics which are consistent

stable-characteristics of the variety are consistent over a number of generations

Let us look at some aspects of the Bill to see where there are similarities and differences. According to Senator Hill's Bill, the species coverage is horticultural. The Committee's majority report went beyond this. Let me just quote recommendations 2 and 3 from the Committee's report. Recommendation 2 states:

all plant species have the potential to be included in an Australian PVR scheme. However, the Committee also recommends that initially any PVR scheme have the potential to include horticultural, ornamental and fodder and pasture varieties only and that before a decision is made to include field crops the Commonwealth suggest to the States that the Australian Agricultural Council examine the possible impact of PVR on field crop breeding in Australia.

Recommendation 3 states:

in the drafting of any PVR legislation consideration be given to the automatic inclusion of all genera of ornamental plants.

It would seem that, from what the minority report says, the authors would have no objection to this as long as there was a clear definition of `horticulture' and `ornamental'. The next aspect of the Bill I turn to is the advisory committee. The report came up with a recommendation which states:

an Advisory Committee be established under any PVR scheme to assist in its administration.

We have some reservations. The Government agrees that there should be an advisory committee-there is no doubt about that-but I do not think there is any doubt that there are some queries about its possible composition. Part IV of Senator Hill's Bill states:

The Advisory Committee shall consist of the Secretary; 2 members representing users of horticultural-plants . . .

Clause (4) states:

The members referred to in paragraph (1) (b) shall be persons selected from a list, submitted to the Minister by the Australian Consumers Association, of persons considered by that Association as suitable to represent users of horticultural-plants on the Advisory Committee.

Clause 43 (1) (c) refers to two members representing breeders of horticultural-plants. Clause (5) states:

The members referred to in paragraph (1) (c) shall be persons selected from a list, submitted to the Minister by the Seed Industry Association of Australia or by the Australian Seed Producing Association, of persons considered by the Association that submitted the list as suitable to represent breeders of horticultural-plants on the Advisory Committee.

The Bill then refers to various representations from the States. We believe that there is a problem there which would have to be looked at, either in amendment form or, as I hope, in the drafting of a new Bill. Mention has been made already of problems in definitions. Senator Zakharov mentioned the problem of the definition of horticulture and it is quite clear that this needs to be clarified in the Bill. That could be done. We see also some problems in the definition of a new plant variety. The Department of Primary Industry has made this comment:

Another issue arises in the context of Clause 3 (1) (e) which limits definition of a `new plant variety' in terms of other varieties whose existence was common knowledge at the time of application. This would appear not to allow access to known overseas varieties as the existence of these is likely to be common knowledge at the time of application, thereby removing one of the major benefits of a PVR scheme.

I mention in passing recommendation 13, which states:

In any PVR legislation, the interpretation section include definitions of the word `plant', `cultivar' and `tree'.

This was agreed to by the Minister in his response to us, subject to advice from parliamentary counsel. The report also covers extended criteria for determining novelty. This is an area where Senator Hill has been deficient in his Bill. The Government agrees with the report on that issue; we should have extended criteria for determining novelty. Senator Hill has suggested the provision of copies of statutory registered PVRs to all capitals. The report covered this aspect. The need was seen clearly for people in the States to know what was going on. This is covered by recommendations 18 and 19-although they do not use the exact words recommended by Senator Hill. Recommendation 18 states:

Details of applications for PVR be available in all capital cities.

Recommendation 19 states:

As part of any PVR scheme an Australian Plant Variety Journal be published quarterly to provide information regarding the operation of the scheme.

This would possibly meet the need, demonstrated to us by those who appeared before the Committee, and referred to by Senator Hill.

The next comment made is that rights may be assigned or transferred. This has been mentioned already by one of the other speakers. We support the proposition, but I would suggest that the machinery will have to be different. Recommendations were put before the Committee as to whether the Department or an independent body should be the responsible group or whether the Patents Office should be the body to note and classify the variety so that it could be transferred in the same way as other property. Another provision referred to rights lasting for 20 years, subject to certain qualifications by the Minister, such as meeting of obligations and so on. The report supports this and the Government is happy with it.

I turn to the reasons why we cannot support the Bill. As I indicated earlier, the Government undertook to have further investigations of PVR, not because of the minority report but because of the basic recommendations of the Committee to the Government. The inquiry has been initiated already under Professor Lazenby, the Vice-Chancellor of the University of Tasmania. To make Senator Watson happy, I have here a copy of the terms of reference in which he is interested and I seek leave of the Senate to incorporate in Hansard those terms of reference.

Leave granted.

The document read as follows-

TERMS OF REFERENCE OF INQUIRY INTO AUSTRALIA'S PLANT BREEDING NEEDS

The specific terms of reference of the Inquiry are:

`Having regard to the debate on the possible introduction of a Plant Variety Rights (PVR) scheme into Australia, and the need to ensure that plant breeding remains responsive to industry needs and receptive to changes in technology, investigate and report by 31 January 1986 on Australia's plant breeding needs and all other alternatives to PVR.'

`In carrying out its work, the Inquiry examination include the following specific areas.

(a) the adequacy of the current plant breeding effort, both public and private;

(b) any deficiencies and imbalances in the current programs;

(c) where needs are identified under (a) and (b), the expected impact on those needs of the possible introduction of PVR;

(d) options available to overcome any problems identified under (a) or (b);

(e) what adjustments, if any, should be made to public plant breeding programs if PVR were introduced;

(f) the desirability of public plant breeders being encouraged to compete with private sector breeders in variety development and, if desirable, the options available to effect this; and

(g) the alternatives to PVR for stimulating private plant breeding activity.'


Senator ROBERTSON —I thank the Senate. This report will be completed, if not by the end of 1985, by the beginning of 1986. It seems to the Government that it is inappropriate to go ahead with the consideration of a Bill such as Senator Hill's, or any other, until this report comes forward. Senator Watson, no doubt because Professor Lazenby comes from Tasmania, waxed forth on the qualities of that gentleman and the quality of the report that is likely to be presented to the Government. He did not suggest that it was in any way a deferral of the decision; rather a seeking of additional information. My plea to Senator Hill this afternoon is to adjourn debate on the Bill after today's discussion and bring it back for further debate after we have the Lazenby report in front of us so that we will have an opportunity to debate that here. Perhaps as a result of a Lazenby report the Government will be able to prepare a Bill which is somewhat broader in its aspect than Senator Hill's Bill. It may meet a wider range of the needs of primary producers than does his Bill.

At this stage let me commend Senator Hill for his initiative in bringing forward this Bill for discussion. I have no doubt that his constituents in South Australia will commend him also. If not, the efforts will have been somewhat in vain. It seems to me that it is better to have a new Bill incorporating some of Senator Hill's recommendations than to send this Bill to the House of Representatives, amended or otherwise, for what would have to be massive amendments in the 1986 autumn session. I hope that the debate will be adjourned at this stage and I recommend that it is. I make the point that if it is not and we move into the Committee stage the Minister will respond to the amendments suggested by Senator Vigor.