Geographies

'Identifying and Preventing Biopiracy in Australia: patent landscapes and legal geographies for plants with Indigenous Australian uses' by Daniel Robinson and Margaret Raven in (2016) 1 Australian Geographer comment

There are legal and moral imperatives to protect biological resources and the ‘traditional knowledge’ associated with them. These imperatives derive from complex legal geographies: international law (such as the Convention on Biological Diversity and the Nagoya Protocol), State and federal laws, Indigenous customary law, codes of ethics and research protocols. This paper reports on a ‘patent landscape’ analysis of patents that refer to Australian plant species for which there is Indigenous Australian knowledge. We have identified several patents of potential new biopiracy concern. The paper highlights the way in which actors can gain private property monopolies over biological resources and associated traditional knowledge, even though there are overlapping sovereign rights and Indigenous rights claims. Regulatory gaps need to be closed nationally to fully govern the diverse human–plant bio-geographies in Australia. Further, Indigenous laws and governance have largely been ignored by these actors. We suggest that the introduction of ‘disclosure of origin’ requirements in patent applications, sui generis Indigenous knowledge protections, the development of biocultural protocols, and a more nationally consistent system for ‘access and benefit-sharing’ are required to ensure more ‘fair and equitable’ use of plants and Indigenous knowledge in/from Australia, and to ensure the recognition of Indigenous rights to knowledge.

The authors conclude

In 1992 the Convention on Biological Diversity introduced an international basis for conserving and regulating R&D on genetic and biological diversity and associated traditional knowledge. The Nagoya Protocol which was adopted in 2010, and in force in 2014, provided a more detailed legal framework for the Convention’s objective of fair and equitable sharing of benefits arising out of the utilisation of genetic resources. The Nagoya Protocol called on countries to improve protections of Indigenous knowledge—by encouraging states to recognise relevant customary laws through developing community (or biocultural) protocols. The use of protocols may help document and identify ‘knowledge-holders’ or communities’ customary laws, beliefs and interests, which may otherwise remain unknown to researchers (see Bavikatte and Jonas 2009; Raven 2010 ).

Contrary to such attempts, Australia does not have a ‘nationally consistent’ approach to biodiversity regulation. Gaps exist in Australia’s ABS framework across State and Territory legislation, an incomplete and fractured legal geography. These laws have limited assertion of Indigenous rights over their knowledge and associated biological resources. The most detailed are the Commonwealth Regulations under the Environmental Protection and Biodiversity Conservation Act 1999; and the Northern Territory Biological Resources Act 2006.

This incomplete legal geography may be the reason why patents are awarded for ‘innovations’ that use genetic resources and associated Indigenous knowledge without PIC and ABS agreements. The patent landscape analysis used in this article indicates hundreds of instances where Indigenous knowledge may have been used as an element of ‘discovery’ for the patent. Five patents of concern were identified, over the plants commonly known as ‘old man weed’, ‘emu bush’, and ‘Kakadu plum’. In these cases it is possible that Indigenous knowledge was utilised as a lead for commercial use of the plant, R&D, and/or patent claims. The patents examined in this article highlight the ethical, customary and cultural affront that may be caused by using Indigenous knowledge without PIC, and that Indigenous knowledge-holders and other providers may lose out on any potential benefits from the commercialisation of biological and genetic resources and associated traditional knowledge. This would also be particularly damaging if the patents prevent trade in specific products relating to those patented ‘innovations’.

In 1992 the Convention on Biological Diversity introduced an international basis for conserving and regulating R&D on genetic and biological diversity and associated traditional knowledge. The Nagoya Protocol which was adopted in 2010, and in force in 2014, pro- vided a more detailed legal framework for the Convention’s objective of fair and equitable sharing of benefits arising out of the utilisation of genetic resources. The Nagoya Protocol called on countries to improve protections of Indigenous knowledge — by encouraging states to recognise relevant customary laws through developing community (or biocultural) protocols. The use of protocols may help document and identify ‘knowledge-holders’ or communities’ customary laws, beliefs and interests, which may otherwise remain unknown to researchers (see Bavikatte and Jonas 2009; Raven 2010). Contrary to such attempts, Australia does not have a ‘nationally consistent’ approach to biodiversity regulation. Gaps exist in Australia’s ABS framework across State and Territory legislation, an incomplete and fractured legal geography. These laws have limited assertion of Indigenous rights over their knowledge and associated biological resources. The most detailed are the Commonwealth Regulations under the Environmental Protection and Bio-diversity Conservation Act 1999; and the Northern Territory Biological Resources Act 2006. This incomplete legal geography may be the reason why patents are awarded for ‘innovations’ that use genetic resources and associated Indigenous knowledge without PIC and ABS agreements. The patent landscape analysis used in this article indicates hundreds of instances where Indigenous knowledge may have been used as an element of ‘ discovery ’ for the patent. Five patents of concern were identified, over the plants commonly known as ‘old man weed’ , ‘emu bush’ , and ‘Kakadu plum’. In these cases it is possible that Indigenous knowledge was utilised as a lead for commercial use of the plant, R&D, and/or patent claims. The patents examined in this article highlight the ethical, customary and cultural affront that may be caused by using Indigenous knowledge without PIC, and that Indigenous knowledge-holders and other providers may lose out on any potential benefits from the commercialisation of biological and genetic resources and associated tra- ditional knowledge. This would also be particularly damaging if the patents prevent trade in specific products relating to those patented ‘innovations’.

Ambiguity existed regarding the source and origins of biological resources and associ- ated Indigenous knowledge in almost all of the patent documents searched. This gives credence to the suggestions by Tobin (1997), Sarnoff and Correa (2004), Dutfield (2005), Oldham, Hall, and Forero (2013) and others that an international ‘disclosure of origin’ patent requirement would provide a checkpoint to ensure that ABS rules have been followed. Internationally, significant progress was made towards a disclosure of origin requirement in the World Trade Organisation (WTO) Trade Related Aspects of Intellec- tual Property Rights (TRIPS) Council, with at least 108 countries — more than two-thirds of the WTO’s members — expressly endorsing a proposed disclosure of origin amendment to the TRIPS Agreement (see WTO TRIPS Council 2008; Bagley, forthcoming). These negotiations then slowed significantly and developed countries opted to move the ‘disclosure of origin’ to the WIPO IGC where negotiations have stalled. Australia now has an opportunity to show leadership in the WIPO IGC by implementing a disclosure of origin requirement and developing sui generis protections in collaboration with Indigenous leaders, organisations and communities.

It is not clear whether Indigenous knowledge was used for all the patents identified in this paper, but it seems likely Indigenous knowledge was used as a lead in several of the cases. The failure of these patent-holders to recognise and seek permission for Indigenous knowledge use reverberates the processes of colonisation. As Dutfield (2004, 58–59) explains, this process assumes a res nullius (the property of nobody) treatment of territories, ecosystems, plant species and Indigenous knowledge before their ‘discovery’ by explorers, scientists, corporations or governments. By ignoring Indigenous customary laws, rules, rituals and beliefs, and the ABS framework, these researchers and companies appear to breach or sidestep Australian laws at multiple scales and in multiple forms of jurisprudence — including Indigenous jurisprudence. As Dutfield ( 2013) and Tobin (2013) point out, Indigenous peoples are better equipped to look after their own interests if they receive greater recognition of rights enabling self-determination over their own economic, social and cultural interests and development. This involves recognising Indigenous or customary laws over nature and knowledge, or developing biocultural/community protocols. 

The results of patent landscape analysis signal possibilities of Aboriginal actors filing for patents as joint owners and/or joint inventors. For example, Patent WO/2011/ 057332 was filed jointly by Chuulangun Aboriginal Corporation and the University of South Australia, and other patents have been filed jointly by Jarlmadangah Burru Abori-ginal Corporation and Griffith University (see Holcombe and Janke 2012). But limited duration (20 years), exclusivity, and requirements of novelty and obviousness often make patents poor candidates for protection of Indigenous knowledge - often orally shared, communally and customarily regulated, held by various knowledge-holders, associated with culture, rituals and practice.

Given the high level of endemicity of plants in Australia, and the rich and widespread Indigenous knowledge of their potential uses, it seems clear that Australia and its Indigenous peoples could benefit from changes to the national legal landscape. First, the develop-ment of an effective nationally consistent ABS framework is needed through complete implementation of the Convention on Biological Diversity and the Nagoya Protocol, including ABS provisions that respect the rights of Indigenous communities and require PIC and MAT for access to Indigenous knowledge. Second, ‘disclosure of origin’ in patent applications would assist with monitoring the implementation of inter- national ABS provisions, including compliance with PIC. Last, greater recognition and protection of Indigenous rights and customary laws relating to biological and genetic resources is required. While projects such as IP Australia’s Dream Shield may assist Indigenous businesses, further protections, such as sui generis protections that recognise customary laws and biocultural protocols for governing Indigenous knowledge, could assist with this recognition of rights that are already enshrined in international law.

De-extinction

'Spending limited resources on de-extinction could lead to net biodiversity loss' by Joseph R. Bennett, Richard F. Maloney, Tammy E. Steeves, James Brazill-Boast, Hugh P. Possingham and Philip J. Seddon in (2017) 1 Nature Ecology & Evolution 0053 comments

There is contentious debate surrounding the merits of de-extinction as a biodiversity conservation tool. Here, we use extant analogues to predict conservation actions for potential de-extinction candidate species from New Zealand and the Australian state of New South Wales, and use a prioritization protocol to predict the impacts of reintroducing and maintaining populations of these species on conservation of extant threatened species. Even using the optimistic assumptions that resurrection of species is externally sponsored, and that actions for resurrected species can share costs with extant analogue species, public funding for conservation of resurrected species would lead to fewer extant species that could be conserved, suggesting net biodiversity loss. If full costs of establishment and maintenance for resurrected species populations were publicly funded, there could be substantial sacrifices in extant species conservation. If conservation of resurrected species populations could be fully externally sponsored, there could be benefits to extant threatened species. However, such benefits would be outweighed by opportunity costs, assuming such discretionary money could directly fund conservation of extant species. Potential sacrifices in conservation of extant species should be a crucial consideration in deciding whether to invest in de-extinction or focus our efforts on extant species.

Technological advances are reducing the barriers to resurrecting extinct species or their close genetic proxies, allowing de-extinction to be considered as a biodiversity conservation tool. Arguments in favour of de-extinction include necessity, driven by the rapid rate of species and habitat loss, an ethical duty to redress past mistakes, as well as potential technological and ecological knowledge that could stem from de-extinction programmes. Counter-arguments include high risk of failure due to difficulties of cloning for some species, technical risks inherent in re-introductions , loss of culture in resurrected animal species, and lack of remaining habitat for some species, as well as negative consequences for extant species, including reduced incentive for traditional conservation, and ecological impacts of introducing long-absent or genetically modified species.

The relative cost versus benefit for biodiversity is fundamental to the debate surrounding de-extinction. Assuming species are resurrected to be released into former habitats, the cost of de-extinction includes the process of producing initial founder populations, translocating individuals, then monitoring and managing new wild populations. If conservation funds are re-directed from extant to resurrected species, there is risk of perverse outcomes whereby net biodiversity might decrease as a result of de-extinction. Although private agencies might fund the resurrection of extinct species out of technical or philanthropic interest, the subsequent ongoing management of such species (many of which would face the same threats that made them extinct) would fall on government agencies, as commonly occurs with extant threatened species. Alternatively, if private agencies are willing to provide new funding for post de-extinction management, there could be additional benefits to species sharing habitats or threats.

Here, we test the potential impact of establishing and sustaining wild populations of resurrected extinct species (or proxies of such species) on the conservation of extant species. Specifically, we use long-term conservation programmes for extant analogue species in New Zealand (NZ) and the Australian state of New South Wales (NSW), to infer potential conservation actions for resurrected species, and predict the impact of resurrected species programmes on conservation of extant species. We use these datasets because they contain detailed prescriptions and costs of actions designed to achieve population recovery for most of the extant threatened species requiring specific management actions in either jurisdiction. We estimate the net number of extant species that can be conserved, using the following scenarios:

(1) establishment and maintenance of resurrected species become the burden of government conservation programmes, and

(2) establishment and maintenance of resurrected species populations are funded externally using non-public resources.

In Scenario 1, the use of government resources on resurrected species results in less funding for extant species programmes, but provides potential benefits for species that share actions with resurrected species. In Scenario 2, there are also potential benefits to extant species conservation programmes through shared conservation actions. However, there are potential opportunity costs, if private agencies use resources they could otherwise have used on conservation of extant species. Our analysis assumes that species would be resurrected to be re-introduced into their former habitats, rather than for other potential reasons, such as research or public display.

Cadavers

The Criminal Law Amendment Bill 2016 (Qld), passed today, amends the Queensland Criminal Code to increase the maximum penalty for the section 236(b) offence of misconduct with regard to corpses; and amends the Penalties and Sentences Act 1992 (Qld) to add the section 236(b) offence to the serious violent offences schedule.

The Explanatory Memo for the Bill states

The proposed amendment potentially impacts on the rights and liberties of individuals by imposing a higher maximum penalty for the offence and therefore exposes an offender to greater punishment than was authorised by the former law. The amendment is justified to appropriately reflect the seriousness of the offence and the community's abhorrence of such conduct. The amendment operates prospectively and will only apply to offenders who commit the offence on, or after, the date upon which the amendments commence.

Panics

The Queensland Parliament has belatedly addressed the so-called 'homosexual panic defence', passing the Criminal Law Amendment Bill 2016 (Qld).

The Explanatory Memo for the Bill states

Policy objectives and the reasons for them

The objectives of the Criminal Law Amendment Bill 2016 are to:

• ensure that a person who commits murder cannot rely on an unwanted sexual advance as a basis for the partial defence of provocation which, if successfully raised, reduces murder to manslaughter; and 

• make a number of miscellaneous criminal law-related amendments, arising from the lapsed Justice and Other Legislation Amendment Bill 2014 and from stakeholder consultation, to improve the operation and delivery of Queensland's criminal and related laws. 

Exclusion of unwanted sexual advance as basis for defence of killing on provocation

Section 304 (Killing on provocation) of the Criminal Code provides the partial defence of provocation which, if successfully raised, reduces the criminal responsibility of the accused from murder to manslaughter. The offence of murder carries mandatory life imprisonment, whereas the offence of manslaughter carries a maximum penalty of life imprisonment.  

In April 2011, section 304 was amended to address its perceived bias and flaws following recommendations of the Queensland Law Reform Commission (QLRC) contained in its 2008 report, A review of the excuse of accident and the defence of provocation. While not specifically dealing with the issue of an unwanted sexual advance, the 2011 amendment to exclude 'words alone' applies to a sexual proposition, unaccompanied by physical contact. Further, the 2011 amendments reversed the onus of proof to a defendant. However, the partial defence of provocation continued to be criticised on the basis that it could be relied upon by a man who has killed in response to an unwanted homosexual advance from the deceased.  

In November 2011, under the former Labor Government, an expert committee (the Committee) was tasked with reviewing section 304 regarding its application to an unwanted homosexual advance. The Committee was chaired by the Honourable John Jerrard, former judge of the Queensland Court of Appeal (the Chair). The Committee was equally divided about an amendment to section 304 on this matter; however ultimately the Chair recommended an amendment to exclude an unwanted sexual advance from the ambit of the partial defence, other than in circumstances of an exceptional character. The report records the Chair's part reasoning of "the goal of having a Criminal Code which does not condone or encourage violence against the Lesbian, Gay, Bisexual, Trans, Intersex (LGBTI) community" as being persuasive in supporting the amendment.  

The Chair also recommended amending the existing provisos in section 304 of 'circumstances of a most extreme and exceptional character' to omit the requirement that the circumstances be of 'a most extreme' character; to remove potential ambiguity and given that such an amendment would not have the effect of lowering the threshold.  

While the former Labor Government announced its intention to amend section 304 to give effect to the Chair's recommendation, the ensuing change of government in 2012 meant the proposed amendments were not progressed.  

Achievement of policy objectives  

Exclusion of unwanted sexual advance as basis for defence of killing on provocation  

The Bill amends section 304 (Killing on provocation) of the Criminal Code to exclude an unwanted sexual advance, other than in circumstances of an exceptional character, from the ambit of the partial defence.  ... 

Clause 10 - amendment to Criminal Code to exclude an unwanted sexual advance from being able to establish a partial defence of provocation in the case of murder

The proposed amendment to section 304 (Killing on provocation) of the Criminal Code to restrict the scope of the partial defence of provocation from applying, other than in circumstances of an exceptional character, if the sudden provocation is based on an unwanted sexual advance to the person has the potential to significantly affect the rights and liberties of individuals. This is particularly so given the defence operates to reduce what would otherwise be murder to manslaughter; and the penalty for murder is mandatory life imprisonment. The proposed amendment reflects changes in community expectations that such conduct should not be able to establish a partial defence of provocation to murder, i.e. where the defendant has killed with murderous intent. However, the proposed amendment also includes the operation of the proviso "other than in circumstances of an exceptional character" to guard against unjust outcomes as it is impossible to predict the factually dynamic circumstances that may arise in homicide cases. 

 The Bill provides for technical or consequential amendments to Queensland criminal law.

Bail Act 1980

• ‚to encourage police to exercise their discretion with regard to bail where a person cannot be taken promptly before a court; and ï‚· to clarify the process on forfeiture of cash bail to ensure consistency in approach.  

Criminal Code

• to create an exception to section 89 (Public officers interested in contracts) for public officers who acquire or hold a private interest made on account of their employment, having first disclosed to, and obtained the authorisation of, the chief executive of the relevant department. The amendment will address ambiguity as to whether section 89, in its current form, prevents departments from authorising public service officers to provide services in their private capacity; such authorisation is often necessary in rural and remote areas; and 

• to increase the penalty for the offence of misconduct with regard to corpses (in section 236(b) Criminal Code) from two years imprisonment to five years imprisonment.  

Criminal Proceeds Confiscations Act 2002

• to ensure all contraventions of restraining orders and forfeiture orders made under the Criminal Proceeds Confiscations Act 2002 (CPCA) are prohibited and appropriately sanctioned; 

• to allow voluntary provision of information by financial institutions to the Crime and Corruption Commission with respect to the Serious Drug Offender Confiscation Order Scheme; 

• to clarify the original intention with respect to section 93ZZB (Making of serious drug offender confiscation order); and 

• to amend the definition of 'applicant'.    

• to enable the Director to delegate their functions and powers to an appropriately qualified person.  

Drugs Misuse Act 1986

• to update the evidentiary provision providing for a drug analyst's certificate, to reflect current scientific and operational practices of analysis and remove any uncertainty about the admissibility of certificates issued under the section.  

Evidence Act 1977

• to ensure that in proceedings other than committal hearings, unless a court otherwise orders, a party intending to rely on a properly disclosed DNA evidentiary certificate is only required to call the analyst who signed it if another party gives the requisite notice; 

• ‚· to permit a court to order that the usable soundtrack of a videorecording (pre-recorded evidence) may be played at a proceeding in certain circumstances; 

• to exclude the public from a courtroom while the pre-recorded evidence of an affected child witness or special witness is being played; 

• · to allow for the destruction of certain recordings held by courts in accordance with relevant practice directions; and 

• to make technical amendments to provisions relating to the pre-recording of evidence to reflect contemporary court practices.  

Jury Act 1995

• to modernise a court's ability to use technology in jury selection processes.  

Justices Act 1886

• to insert an authority to allow a Magistrate to order the joinder of trials; 

• ‚·to allow for admissions of fact in summary trials for simple offences or breaches of duty; 

• to allow for registry committals for legally represented defendants who are remanded in custody; and 

• to enable a defendant to enter a plea in bulk in a Magistrates Court (also involves amendment to the Criminal Code).  

Penalties and Sentences Act 1992

• to add the offence in section 236(b) (Misconduct with regard to corpses) of the Criminal Code to the serious violent offences schedule; 

• to allow the Police Commissioner to issue a pre-sentence custody certificate in certain circumstances; and 

• to provide a mechanism to return offenders sentenced to a recognisance order who fail to properly enter into the recognisance back to the court, and allow for their re- sentencing in the Court's discretion.  

Recording of Evidence Act 1962

• to permit the destruction of recordings of Magistrates Court proceedings that are authorised by the archivist.

Offshoring

Should Australian government agencies be taking data collection outside the ambit of the Privacy Act 1988 (Cth)?

That question is provoked by today's email from the Therapeutic Goods Administration, which reads

To provide you a better subscription service, we are transitioning to a new online software to manage our email lists (ActiveCampaign). ActiveCampaign will make it easier for us to provide you with better designed, timely and targeted information.

Changes to privacy notice

ActiveCampaign is based in the United States of America (USA), so your personal information (name and email address) will be stored on servers outside of Australia.

Unless you opt-out, you:

• Consent to your personal information being collected, used, disclosed and stored as set out in ActiveCampaign’s Privacy Policy and agree to abide by ActiveCampaign’s Terms of Use. 

• Acknowledge that this service utilises ActiveCampaign’s platform, which is located in the USA and relevant legislation of the USA will apply. 

• Acknowledge Australian Privacy Principle 8.1 contained in Schedule 1 of the Privacy Act will not apply. 

• Acknowledge that ActiveCampaign is not subject to the Privacy Act 1988 (Cth) and in the event of any privacy breaches by Active Campaign you would not be able to seek redress against ActiveCampaign under the Privacy Act 1988 (Cth) but would need to seek redress under the laws of the USA.

Legal but not admirable.

Opting-out means no longer receiving TGA updates.