FNI Report 1/2014. Lysaker, FNI, 2014, 42 p.
Australian ABS legislation is advanced and pioneering in giving national effect to the third objective of the CBD with mandatory permits for all biodiscovery and mandatory benefit sharing agreements for biodiscovery with a commercial intent. Nevertheless, under Commonwealth legislation there is still only one biodiscovery case involving commercial benefit sharing. This is spite of persistent interest in biodiscovery.
One lesson is the need for improving the dynamic element in ABS contracts, building in a clearer trigger point for when the obligations to share are actualized and to reverse the burden of tracking and follow-up to the user rather than leaving it to the provider. If a rich country like Australia lacks sufficient resources to follow the future development based on its material, this speaks volumes for poor provider countries. Linking the ABS and IPR legislation through disclosure of the source of biological resources in patent applications can be an appropriate legal measure to track compliance. Also, the statutory declaration in Commonwealth legislation is a legal instrument that could bind the user to Australian criminal law, although this holds a more limited prospect for following and tracking genetic material if it is transferred to third parties. This indicates that using the general legal means for making ABS work is a fruitful way forward.
Australia played an important role in the negotiations leading to the Nagoya Protocol (NP), and its legislation inspired some of the Protocol’s provisions. On that basis and being a megadiversity country with extensive ABS experience and wide support by the biodiscovery stakeholders to the NP, it would seem obvious and in the interest of the country to become a party to the NP. The outside world would also benefit from Australia being a party because Australia has learned many ABS lessons to be shared with other parties of which many will not have come nearly as far in their ABS experience. Among others, there are lessons about drawing up an effective regulatory system, but also about legal challenges for federal nations with mixed jurisdictions between the federal and state level. These lessons concern partnerships between public academic institutions and the private sector with great benefits for both parties, as well as difficulties in distinguishing scientific from commercial biodiscovery and defining roles.