Alannah Mactiernan (Perth, Australian Labor Party) Share this | Hansard source

I was going to begin by complimenting the member for Bowman on an excellent speech. He did blot his copybook towards the end, but I think he gave a very powerful and important explanation of the importance of TRIPS and the role that this legislation will play in ensuring that Third World communities have access to the drugs they need to deal with very severe conditions and to overcome some of the fundamental inequity that exists across the planet where people who are most in need of medical assistance and advanced pharmaceuticals so often simply do not have access to them. I want to compliment him, as I said, for explaining that in very considerable detail.

He did, however, blot his copybook somewhat towards the end because he misrepresented the case of who, in fact, first proposed this legislation. The legislation in relation to TRIPS, as we all know, first came before this parliament in 2013. It was a piece of legislation promoted by the Labor government. But at that time, in keeping with the 'just say no' approach of the then opposition, it was objected to by the opposition and described as inadequate, incompetent legislation by the now departed former member for Indi. We now see this legislation being brought back into this place, and it does have the support of the opposition.

There were just a couple of matters that I wanted to raise here today. The first is one of the things that is not in the bill. There has been an entire area of difference between the Labor bill and the bill now before the House—and that is, as my colleague earlier mentioned, the removal of the Crown use provisions. These are provisions that already existed within patent law that allow the Crown, from time to time, to utilise patents for public purposes without necessarily obtaining the licence of patent holder. Governments are required to pay compensation for that use, so it is not something that will detract from the economic position of the patent holder. This is in order to ensure that public good is protected by patent law.

At the end of the day, patent law is the gift of the state to the private patent holder, going right back to the days of the woollen stockings that were the first subject of patent protection in the United Kingdom in order to encourage the French manufacturers to come over and bring their worsted stockings to England. So it is very much a gift, and part of the Crown use provision is a recognition that from time to time there is an important role for the state in accessing those patents and having the capacity to do so. There has not in fact been all that much Crown use of patents in Australia—I think we have found half a dozen cases where this has been invoked, two of which have been contested—but I think this is an issue that will become increasingly important because of this issue of gene patenting.

There is a great deal of concern in the community about gene patenting. Amongst many people, including cancer survivors, the ability to patent a gene mutation such as the BRCA mutations for breast cancer is really seen to be quite repugnant. People find it very difficult. I will just read an email I received the other day from a Lesley Keegan. Lesley says:

I can't say how disgusted I am with Australian Patent laws which is in the process of allowing the patenting of genes. This isn't about saving lives, this is about making money. It is happening in every genetic research sector including one close to my heart, the genetic heart research sector … I have had the misfortune to have had contact with people within the genetic heart research sector. My opinion is and has been for quite a while that there is something intrinsically wrong with the system.

We have seen the same from breast cancer survivors.

This is a very complex area. In the 2004 report—and I think it was one of the first and most comprehensive reports on this whole issue of patenting of genetic material and whether or not we should allow it—the Law Reform Commission certainly expressed that they were sympathetic to the concerns of the public about the patenting of genetic material. But they made the point that if had been addressed in the 1980s, just as the capacity to do this detailed genetic sequencing was emerging and as the activity of private laboratories in this area was emerging, it may well have been possible to do something. The point they made in the 2004 report, in the 2009 submission to the Senate inquiry and, I think, in the subsequent 2013 inquiry was that the 'gene genie', if I can say that, is out of the bottle and there have now been so many patents granted in this area—tens of thousands—that it would be difficult to unwind that. So they recognised the problem, but we have really gone too far down the track, in their view, to unwind this.

What they proposed instead was that we modernise and make more accessible these Crown use provisions. These Crown use provisions were to be modified and strengthened so that, if there were a situation where access to genetic material is not made available to allow treatment or further research and development to take place and the development of realistic and affordable solutions for people who suffer from genetic mutations is blocked—and there are people who are fearful that this is the case—then the Crown use provision would enable the government to override the exclusivity of the patent and ensure proper compensation. Nevertheless it would provide a level of protection. Unfortunately, the government of the day has decided that it is not going to do that. It is not going to act in accordance with the recommendations of the Australian Law Reform Commission in this regard and it is not going to allow the Crown use provisions to be strengthened and modernised so that they create this fallback position.

There is one other item I wanted to comment briefly on, and it is plant breeders' rights. The bill before us provides for a more accessible regime, with greater accessibility to courts for a more speedy resolution of disputes relating to plant breeders' rights. Of course, that is important. These can be very expensive processes. But I will just make the observation that I think there is a great future in genetic modification of crops. I do understand concern in sectors of the community about GM, but it is science and it is progress. It can enable us to do extraordinary things—to take genes for drought resistance from plants in African deserts, incorporate them into food crops and ensure that we can deal with some of the consequences of climate change on the drying continent that we are facing here in Australia.

So I think there is great potential for GM, but one of the really big risks that we face is the conduct of the companies that own the GM rights. I do not think that we have the legal regime here right. Some of the really unfair treatment of people whose crops have been corrupted—or infiltrated—by GM crops and who then found themselves on the receiving end of penalties is quite extraordinary. Until we resolve that legal issue, until we have a fairer regime for those farmers who choose, as they should be able, not to go down the GM path they will continue to have that two concerns. One concern is their ability to protect their product, but an even more profound concern is that if they are unwittingly the subject of an invasion by seed from GM plantations not only is their economic model undermined but they can become financially liable for having expropriated the stock and genetic material of the seed company. That is a completely untenable position and one of the things that are standing in the way of there being a wider spread acceptance of GM crops. I really do urge this. I know it is not the issue that is dealt with centrally here, but with this bill we are making it easier to take action under plant breeders' rights. Part of the sequel of that has to be to make sure that those rights are fair and protect the interests of non-GM farmers as well.

We support this legislation. We are particularly enthusiastic about the implementation of the TRIPS regime. We are not an opposition that just says 'no' as a matter of course, as is shown here by our support, notwithstanding the fact that an almost identical bill was opposed the Conservatives when they were in opposition. I am happy to support this bill, and I commend it to the House.

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