RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/310
2 October 2001
(01-4693)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
COMMUNICATION FROM AUSTRALIA
By means of a communication, dated 20 September 2001, the following text has been
received from the Permanent Mission of Australia with the request that it be circulated to the TRIPSCouncil.
_______________
REVIEW OF ARTICLE 27.3(b)
Introduction
1. The mandated review of Article 27.3(b) has included extensive discussion of important and
broader related issues.  It could be potentially counterproductive to try to deal with these issues
relating to intellectual property and genetic resources and traditional knowledge within the narrow
scope of this review.  For example, the intell ectual property related issues arising in the
implementation of the obligations of the Convention on Biological Diversity fall outside the scope of
this review.  One of these issues is the establishment of effective national regimes for regulating
access to genetic resources.  Australia has recently produced a draft legislative model in this area.  Anoverview of this model is provided in this paper.  Consistent with Australia's view that existing legal
and administrative mechanisms can provide effectiv e protection for traditional knowledge, the paper
also contains details on the Australian experience in this area.
The Scope of the Article 27.3(b) Review2. It is Australia's view that the coverage of this agenda item is relatively narrow, that is, the
item is concerned with a review of the effectiveness of the operation of an optional exclusion to
patentability for "plants and animals other than micro-organisms, and essentially biological processes
for the production of plants and animals other than non-biological and microbiological processes".
The subsequent wording of the provision makes it clear that the review is limited to the exclusionslisted in the subparagraph itself, that is subparagraph 27.3(b).
3. However, Australia acknowledges the importance of broader issues related to this provision.
Issues such as access to, and control of, genetic resources and protection of traditional knowledge
have, with advances in technology, increased in importance, including as matters of international
concern.  While much more can be done at the level of national legislation to assist the managementof these issues, there is clearly a role that can be  played by the international community in helping to
address these issues.IP/C/W/310
Page 2
4. With regard to these international activities, Australia strongly supports the encouraging
progress being made by the World Intellectual Property Organization's (WIPOs) Intergovernmental
Committee (IGC) on Intellectual Property and Genetic Resources, Traditional Knowledge and
Folklore.  The planned detailed assessment of these i ssues will make a substantial contribution to the
debate, a debate that has at times been characterised by misinformation and partial truths.
5. Australia considers that these issues, to the extent that they may be relevant to the TRIPS
Agreement, would be more appropriately approached under the Article 71.1 review of the
implementation of the Agreement.  The broad and complex cluster of issues mentioned in the
preceding paragraphs warrants the holistic perspective that this review provides, rather than
attempting to force it to fit into a narrowly defined review.  Trying to do so can only serve to constrain
and limit the dialogue.
6. One of these broader issues is the relationship between the TRIPS Agreement and the
Convention on Biological Diversity (CBD).  Within  the CBD, Article 8(j), concerning the role of
indigenous communities in preserving biodiversity, and Article 15, relating to access to genetic
resources, have a particular prominence in this discussion.  As we have submitted before, the two
agreements are not in conflict, indeed, if properly managed, the national implementation of the
obligations under two agreements could result in a regime that substantially addresses these concerns.It should be noted that many of the concerns relating to the effective implementation of the specific
CBD obligations noted above can be largely addressed by strengthening legal and administrative
regimes outside the field of intellectual property.
TRIPS and Genetic Resources7. Concerns about biopiracy have prompted calls to deal with the claimed potential
inconsistencies between the requirements relating to access to genetic resources under Article 15 of
the CBD and the conditions for the grant of a valid patent under Article 27 of the TRIPS Agreement.
This case has been argued at length by some Members, which have proposed that Article 27.3(b) be
amended to provide additional conditions for patentability, namely:  (a) the identification of thesource of the genetic material;  (b) the related traditional knowledge used to obtain that material;
(c) evidence of fair and equitable benefit sharing ;  and (d) evidence of prior informed consent from
the Government or the traditional community for the exploitation of the subject-matter of the patent.
8. We have two reservations concerning this proposed amendment at this stage.  The first is that
we feel that more analysis needs to be undertaken into the most effective way of ensuring that access
to material that is subsequently the subject of a patent application was sourced in compliance with the
provisions of the CBD.  It is certainly not clear that an amendment to the TRIPS Agreement isrequired in order to achieve this goal, where improved documentation and information sharing
procedures could prove sufficient.
9. Given that there is clearly no explicit conflict between the provisions of the two international
conventions, more efforts should be made to exam ine the potential for compatible implementation of
both conventions at the level of national legislation and policymaking before taking the major step ofamending one of the conventions.  We support WIPO's initiatives in this area, particularly its study
over the last two years into the intellectual property-related needs of holders of traditional knowledge
(see below for summary of Australian case studies), and more recently, the productive and
encouraging inaugural meeting of  the Intergovernmental Committee.
10. Our second reservation relates to the proposal that such an amendment should be contained in
Article 27.  Assuming that an amendment along the lines of the Brazilian proposal was decided by
Members to be necessary, its most appropriate location in the Agreement would need to be
considered.  Article 27 deals with patentable subject-matter.  It provides a set of criteria relating to theIP/C/W/310
Page 3
nature of the invention required for inventions to meet a threshold test for patentability.  It then
provides grounds for optional exclusion from patentability, subject to the decision of individual
Members.  Were such an amendment to the TRIPS Agreement to be made, it may be more suitably
located in Article 29, which stipulates conditions to be fulfilled by patent applicants.
11. In summary, a specific amendment to the TRIPS Agreement should only be considered when
a complete survey of the situation has been made and options examined.  Within the context of such
an orderly and properly sequenced survey, we would support the examination of options for
disclosing information about the source of biological material into the patent application process.
Following this process, consideration could be given to whether this necessitates an amendment to the
TRIPS Agreement.
12. We must reiterate that our fundamental position is that much more analysis needs to be
undertaken to exhaustively examine the links betw een the TRIPS Agreement and these broader issues
before any consideration is given to the issue of amending the TRIPS Agreement.  Our preferred
course of action in this respect, as far as our deliberations in the TRIPS Council are concerned, is to
discuss these issues under the mandated review of the implementation of the TRIPS Agreement under
Article 71.1.  This provision also contains the st ipulation that "The Council may also undertake
reviews in the light of any relevant new developments which might warrant modification oramendment of this Agreement".
Implementation of Obligations of the Convention on Biological Diversity
13. As noted above, much can be done at the level of national and local initiatives to contribute to
efforts to address the related problems of protection of biodiversity and indigenous knowledge, a pointmade by a range of Members in the discussions to date on this item.  It is an important initial step in
the process of examining whether international action is necessary to determine the limitations of
domestic policymaking and legislation.  It is clear from the contributions of Members on these issues
to date that there is great potential for national level initiatives in this area.  It is worth noting that
many of these initiatives fall outside the realm of intellectual property.
14. One of these key areas is the action that can be taken by Members to improve regimes at the
national level to control and regulate access to gene tic resources.  Such access regimes, incorporating
the elements of Article 15 of the CBD, provide an important structural element in ensuring that the
flow of genetic resources occurs in a way that optimises the distribution of benefits to local
communities, researchers, industry and national gove rnments.  From this perspective such regulation
is of central importance to the goal of ensuring that bioprospecting is conducted in an ethical and
sustainable manner.
15. Australia, as one of the world’s seventeen mega-biodiverse nations, has a major interest in
conserving its biological resources.  In the world ranking of endemic species (those species found
nowhere else), it ranks first for both mammals and reptiles, second for birds and fifth for both higher
plants and amphibians.  Consequently, Australia is very sensitive to the urgency of ensuring that its
biological resources are effectively and sustainably managed, not only in Australia's national interest,but for the preservation of global biodiversity.  To this end, Australia is currently developing
proposals for improving the management and stewardship of its biological resources.
16. In September 2000 the Australian Minister for the Environment released the findings of an
inquiry into the regulation of access to biological resources on areas controlled by the Australian
Federal Government.  The findings of the inquiry recommended a scheme that streamlines access,providing additional certainty for industry while at the same time safeguarding Australia's unique
biological resources.  The report of the inquiry can be found at:  http://www.ea.gov.au/biodiversity/
science/access/inquiry/index.html.IP/C/W/310
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17. Subsequently, the details of a draft legislative scheme based on the inquiry's findings were
released for public comment.  The draft regulations will provide for management of access to genetic
and biochemical material found in native plants and animals in Federal Government areas, such as
Commonwealth National Parks.  The regulations w ould require bioprospectors to obtain a permit to
ensure the collection of biological material in such areas is ecologically sustainable.  The proposedscheme also provides that a benefit-sharing agreement must be entered into by the access provider and
the bioprospector.  The purpose of the benefit-sharing agreement is to ensure an equitable sharing of
the benefits arising from the bioprospecting.  There is also a particular focus on ensuring that any
commercial benefits arising from the use of indigenous knowledge about plants and animals is shared
with the relevant indigenous communities.
18. Speaking at the release of the draft regulations, the Australian Environment Minister said that
the draft regulations were designed to ensure st reamlined access arrangements for the biotechnology
industry.  He said that the proposed regulations would minimise red tape and provide certainty for
industry while safeguarding Australia's unique bi odiversity.  Implementation of a cost-effective
regulatory regime dealing with access to biological resources will underpin the continued
development of the Australian biotechnology sector.  The Minister indicated that the scheme would be
implemented in a manner that recognizes the needs of scientists conducting non-commercialbiological research.  Australia is pleased to make the details of this draft legislative regime available
to the global community as a contribution to this important issue.  The draft regulations containing the
scheme can be found at:  http://www.ea.gov.au/epbc/about/amendments/biological.html .  A guide to
the scheme is attached to this paper.
19. A related development is an inquiry by a committee of the Australian Federal Parliament into
the development of high technology industries in regional Australia based on bioprospecting and
bioprocessing.  Further information on the committee's deliberations can be found at:
http:// www.aph.gov.au/house/ committee/primind/bioinq/index.htm.
Primary Producers and the National Intellectual Property Regime20. As a country for which agricultural exports are vital, Australia has a strong interest in
ensuring that its national intellectual property regime operates effectively to support innovation in this
sector.  It is Australia's view that the framework provided by TRIPS is able to accommodate this
broad range of policy options.  In June 2000 the Australian House of Representative's Standing
Committee on Primary Industries and Regional Services tabled its report Inquiry into Primary
Producer Access to Gene Technology - Work in Progress:  Proceed with Caution .  From this report it
is clear that much can be done at the national level to ensure that intellectual property serves anindividual country's social and economic developm ent goals.  The report focuses on the capacity of
small and medium-sized enterprises to access the benefits of gene technology.  Underlining the
importance of intellectual property in relation to the commercialization of this new technology, the
inquiry report includes a chapter and a number of recommendations relating to intellectual property.
The report can be found at:  http:// www.aph.gov.au/house/ committee/primind/gtinq/report/
contents.htm.
Protection of Traditional Knowledge
21. With regard to current international proposals for the protection of traditional knowledge,
Australia strongly supports further work being done, both in the above mentioned WIPO process, andelsewhere, to examine ways of improving protection, including the examination of the potential use of
databases to assist with searches of prior art.  Furthermore, there exists potential for these databases to
be linked with others established for the documentation of biological diversity.  However, such
international initiatives must always be mindful of their workability in national regimes, and not
underestimate the role of mechanisms at the national level to contribute to the eventual solution.IP/C/W/310
Page 5
22. The Australian Government is conscious of the need to examine effective protection of
indigenous intellectual and cultural property (ICIP) within Australia.  It is hoped that the Australian
experience will be of some use to other countries.  Australia believes that much can be drawn from the
national experience of Members in formulating an international response to these issues.  Premature
international initiatives must not work to restrict or hinder national processes of developing policy andlegislative responses that meet the needs of indigenous communities.
23. The intellectual property concerns of Australia's Indigenous people have been explored and
articulated in the report:  Our Culture, Our Future:  Report on Australian Indigenous Cultural and
Intellectual Property .  This report provides an Indigenous perspective on issues related to the
protection of indigenous intellectual and cultural property and offers comprehensive range of
proposals for advancing indigenous concerns relating to the legal protection of ICIP.  The report can
be found at:  http://www.icip.lawnet.com.au/ .
24. The Australian Government is aware of Indigenous concerns in relation to the protection and
use of ICIP.  In this complex area, where traditional, national, and international legal systems interact,
it is misleading to look for a simple, but compre hensive solution.  In seeking effective, workable
solutions, the Australian Government considers the best approach is likely to be founded on a
thorough survey of all the available options.  This includes exploring possibilities for making muchmore effective use of existing legal systems, and an approach that accumulates and builds on practical
experience in the administration and management of intellectual property.  Further understanding of
Indigenous custodianship of knowledge and culture by administrators and managers of intellectual
property is also required so that constructive and useful dialogue can occur.  In this way tangible
benefits can be realised in the short and medium-term, and will lay the most productive groundworkfor future development at both th e national and international levels.
25. The Australian Government encourages the investigation and promotion of solutions to
indigenous concerns.  However, in establishing a framework for action, the Australian Government's
approach can be described as pursuing two paths, an assessment of the existing legal framework, and
the application of practical measures that have been taken to accommodate Indigenous concerns in theday to day management and administration of ICIP.
Use of the Existing Legal Framework for Protection of Traditional Knowledge
26. The first approach is to examine the existing le gal framework, and particularly the intellectual
property system for ways in which it can be better and more creatively employed to afford increased
protection for ICIP.  The existing system is criticised by some commentators as being inadequate and
inappropriate for the protection of ICIP, thus prompting proposals for wholesale reform andsui generis  forms of protection.  We believe, however, that dismissing the applicability of the current
system ignores not only the potential benefits to be gained, and identifying legitimate "gaps" in
protection, but could also create extra regulatory  burdens and procedures and systems that would
invariably stifle innovation and creation.  Indeed, the current system provides artists and creators with
legal rights through which they can exert their control, exclude the use by others and reap financialgain for their efforts, including in the international market.
27. These rights are widely used by indigenous artists, and those rights are consistently enforced
in the courts.  For example, while it is claimed that copyright laws illustrate the existing system's
inability to accommodate some Indigenous needs, such as communal ownership, the Australian
Federal Court ruling in a recent case that extended legal rights over copyright to Indigenouscommunities in certain circumstances demonstrates that creative use of the current legal system can
provide for such protection.  At the same time Australia's copyright laws provide effective protection
for Indigenous designs being illegally reproduced on t-shirts, carpets and other commercial products.IP/C/W/310
Page 6
28. Australia was pleased to be able to contribute its experience in the area of protection of
traditional knowledge using the existing intellectual property system through being one of the three
countries chosen by WIPO for a series of case studies, undertaken over 2000-2001.  The case studies
focus on obtaining practical information on how existi ng intellectual property systems can be used for
the protection of traditional knowledge, by examining specific examples in which a holder oftraditional knowledge or an indigenous or local community has attempted to use the intellectual
property system to either protect traditional knowledge or to further their own interests in the
commercial application and utilisation of traditional knowledge.  The eight case studies in Australia
involve a range of issues, namely:
• the unauthorized use of a photograph of an indigenous dance group for postcards and an
unrelated music CD, involving an examination of copyright, performer's rights and thelaw of passing off;
• the unauthorized reproduction of spiritual rock art images from a publication for use on
clothing and other merchandise, involving issues of the documentation, publication andlicensing of traditional knowledge, and the use of copyright;
• the use of a national label of authenticity registered as a certification trademark by the
National Indigenous Arts Association of Australia for indigenous art and art products.
This label is intended to enable consumers to identify products which are authenticexamples of indigenous art, encouraging the purchase of these products rather than
uncertified, possibly fake, products;
• the increased use of trademarks by indigenous arts centres and galleries for the protection
of artistic works and other forms of indigenous knowledge.  This study will examine the
effectiveness of such registered marks in distinguishing indigenous knowledge andcultural expression;
• a study of the extent to which indigenous groups have used design law to protect their
indigenous cultural expression, through registration and enforcement of indigenousdesigns and symbols;
• an examination of a recent decision of the Australian Federal Court in which imported
carpets reproducing copyrighted works of indigenous artists were found to infringe thoserights.  The artistic works contained pre-existing cultural clan images, which were, in
some cases, altered, thereby distorting the cultural message of the works.  This case
involves an examination of copyright and associated trade practices issues, together with
remedies issues;
• the unauthorized reproduction of an indigenous artist's work embodying clan designs, on
imported fabric.  This case involves examin ing the ability of another party to bring an
action as co-applicant, as a representative of the clan involved;  and
• a dispute over the alleged infringement of a trademark, "Indigenart" involving art gallery
owners and an indigenous instrument (didgeridoo) maker.  The respondent, who has used
the business name "Indidjinart" cross-claimed, arguing, amongst other things, that the
trademarks were not inherently distinctive as they were a descriptive term derived from
the words "indigenous" and "art".IP/C/W/310
Page 7
29. The findings of the study of these cases and those conducted outside Australia, will make a
tangible contribution to the debate over the effectiveness of the existing intellectual property system
in protecting indigenous intellectual property.  See: http://www.wipo.int/globalissues/tk/index.html.
30. Better use can also be made of existing laws, for example in the areas of heritage, trade secret
and contract law.  The development and registration as a certification trademark of the authenticitylabel (see case studies above) is one such example of how the existing intellectual property system
can be used effectively in the promotion of indigenous intellectual property.  The authenticity label
will assist consumers in making informed choices when they purchase Indigenous goods and art
works.
31. Formulating a distinct new form of statutory protection for ICIP would be a dramatic step.
There is considerable research and analysis of this option being conducted and the Australian
Government will watch with interest the continued discussion on this issue.  However to be effective,and to ensure that there is not unnecessary duplication, any discussion of a sui generis  system needs to
take full account of the progress towards more effective use of the existing legal system and the
possible directions of its evolution, and how such  a framework would fit into the national and
international legal environment.
Other Practical Measures for Protection of Traditional Knowledge
32. The second element of the Australian Government's approach lies in the application of
practical measures that have taken to accommodate Indigenous concerns in the day to day
management and administration of ICIP.  Outside the legislative framework, the Government has
wide involvement in Indigenous intellectual property issues at a number of levels.  The Governmentrecognizes that in addition to legislative tools it is essential to understand and develop complementary
non-legislative approaches to intellectual property management by Indigenous intellectual property
creators and users.
33. There is potential scope for the extension of collective management of intellectual property
rights into the field of ICIP protection.  At the organizational level for example, collecting societiesplay a role in the collection and distribution of royalties to artists and other creators.  The Government
is considering options for developing a code of conduct and protocols for such societies, taking into
account the needs of Indigenous people.
34. Users of ICIP must also recognise respectful and appropriate uses of the material which they
use.  The Australian Government, as a major collector of Indigenous cultural material, adopts best
practice models for protocols and guidelines and encourages other organizations to follow best
practice.  We would welcome the opportunity to exchange information on these with other countries,and perhaps from our collective experience develop model protocols and guidelines that can be
adopted internationally.
35. The Australian Federal Government also plays an important role in coordinating State and
Local Governments in relation to cultural and intellectual property issues.  Through this relationship,
the Federal Government has assisted in the adoption of protocols and guidelines in the managementand handling of ICIP including Indigenous involvement in the return of Indigenous Ancestral remains
and secret/sacred objects.  Further, museums have also developed protocols and guidelines for the
digitising of Indigenous material that recognis e communal ownership and custodianship of Indigenous
communities under the Copyright Act .  Again, we would welcome the opportunity to share
experiences and develop useful models that accurately reflect the interests of Indigenous people.IP/C/W/310
Page 8
36. Australia remains committed to exploring options and enhancing the education, awareness
and skills of Indigenous peoples in utilising exis ting legal frameworks, and examining alternatives.
The Government encourages dialogue between Indigenous and non-Indigenous peoples in Australia to
assist in furthering understanding between very different legal systems and philosophies, and
welcomes opportunities to exchange experiences with other countries on this issue.IP/C/W/310
Page 9
ACCESS TO BIOLOGICAL RESOURCES IN COMMONWEALTH AREAS
Draft Amendments to the Environment Protection and Biodiversity Conservation
Regulations 2000  – Access Permits and Benefit-Sharing Arrangements
A GUIDE
Purpose
These amendments are being introduced to establish a legal framework to control access to,
and utilisation of, the genetic resources of native species in Commonwealth areas.  The amendmentswill safeguard the environment while promoting the sustainable use of biological resources.  They
will ensure the Australian community shares in the benefits derived from the discovery of commercial
uses of genetic and biochemical material derived from Australian native organisms and will provide
certainty to industry and to researchers.  The amendments will protect and value the special
knowledge of Indigenous people.  Structurally they introduce a new part to the Environment
Protection and Biodiversity Conservation Regulations 2000  (EPBC Regulations) and amend the
existing permitting provisions in the Regulations.
Commitment by Government
Establishing this legal framework gives effect to the Government’s commitment to regulate
access to genetic resources in Commonwealth areas.  That commitment is a specific element of the
Government's National Biotechnology Strategy released on 3 July 2000.  The introduction of this
framework is also an initiative that fulfils a Co mmonwealth responsibility under the National Strategy
for the Conservation of Australia’s Biological Diversity.  This Strategy seeks, in part, to ensure thatthe social and economic benefits of the use of genetic material and products derived from Australia's
biological diversity accrue to Australia.
Background
Convention on Biological Diversity
The growing international momentum to establish legal frameworks to control access to
genetic resources followed the commencement on 29 December 1993 of the Convention on Biological
Diversity and governments' response to the world wide search for new compounds derived from
organisms found in the wild.
The Convention provides the basis under which national policies and legislation on access
and benefit-sharing are being developed.  The Convention's objectives are the conservation of
biological diversity, its sustainable use and "the fair and equitable sharing of the benefits arising out
of the utilisation of genetic resources, including by appropriate access to genetic resources"
(Article 1).  The sovereign right of countries to control the use of their own resources is affirmed atArticle 3.  It is estimated that over 40 countries (including some states in those countries) are
developing access and benefit-sharing schemes.
Legal Basis for Access Regulations
The Commonwealth's Environment Protection and Biodiversity Conservation Act 1999
(EPBC Act) at section 301 establishes the legislative authority for regulations to control access to
biological resources in Commonwealth areas.  Section 301 states that the regulations under the ActIP/C/W/310
Page 10
may provide for the control of access to biological resources in Commonwealth areas, and may
contain provisions about all or any of the following:
• the equitable sharing of the benefits arising from the use of biological resources in
Commonwealth areas;
• the facilitation of access to such resources;
• the right to deny access to such resources;
• the granting of access to such resources and the terms and conditions of such access.
Biological resources are defined by the Act as including genetic resources, organisms, parts of
organisms, populations and any other biotic component of an ecosystem with actual or potential useor value for humanity.  Genetic resources means any material of plant, animal, microbial or other
origin that contains functional units of heredity and that has actual or potential value for humanity.
Commonwealth areas include Commonwealth wa ters and land owned and leased by the
Commonwealth and Commonwealth agencies , and land in external Territories.
Commonwealth Inquiry
On 22 December 1999 the Minister for Environment and Heritage announced a
Commonwealth Public Inquiry into Access to Biological Resources in Commonwealth Areas , headed
by Mr. John Voumard and assisted by an expert reference group.  The inquiry was to advise on a
scheme that could be implemented through regulations under section 301 of the EPBC Act.  The
Inquiry held extensive consultations with state governments, scientific organisations, environmentgroups, the Australian Biotechnology Association and the traditional owners of Kakadu, Uluru Kata
Tjuta and Booderee National Parks.  Public hearings were held in Canberra and Brisbane and
80 submissions were received.
The Inquiry made 71 recommendations including the recommendation that regulations be
made under section 301 of the EPBC Act to establish an access scheme by providing for access
permits and benefit-sharing contracts.
In releasing the Inquiry report in September 2000, the Minister for the Environment and
Heritage undertook to release the draft section 301 regulations for public comment.  The Voumardreport is available on-line at:  http://www.ea.gov.au/biodiversity/ science/access/inquiry/index.html.
Outline of the Scheme
The scheme to be established by the regulations is based on the recommendations of the
Voumard Report, modified following consultation s with Commonwealth agencies after the release of
the Report.
The objectives of the proposed scheme are to:(a) promote the conservation of biological resources in Commonwealth areas, including
the ecologically sustainable use of these biological resources;
(b) ensure the equitable sharing of benefits arising from the use of biological resources in
Commonwealth areas, by providing for agreements between the person seeking
access to biological resources and the provider of the resources;IP/C/W/310
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(c) recognize the special knowledge held by Indigenous people in relation to Australia's
biological resources;
(d) establish a streamlined access regime designed to provide certainty, and minimize
cost, for parties seeking access to biological resources;  and
(e) enable some of the social and economic benefits arising from the use of biological
resources in Commonwealth areas to accrue to Australia.
Under the proposed scheme, a party seeking acc ess to biological resources in Commonwealth
areas must apply for an access permit to be issued by the Minister.  Environment Australia's rolewould be to assess the application, in consulta tion with the relevant Commonwealth agency or
landowner, and make a recommendation to the Minister whether the access permit should be granted
or refused.
While the assessment process is under way, the applicant would be required to negotiate a
benefit-sharing contract covering commercial and other aspects of the agreement with the provider of
the biological resources.  (The regulations identify the relevant access provider for each class of
Commonwealth area including the owner of Indigenous people's land and native title holders as wellas Commonwealth authorities.)
The Inquiry proposed that this contract be based on a model contract developed and agreed by
Governments, industry, Indigenous organizations an d other stakeholders.  The terms of the model
agreement would distinguish between commercial and non–commercial research and contain a broadrange of provisions enabling parties to select terms that fit their individual circumstances.  Use of the
model contract is not mandatory. A prescriptive, or one size fits all approach, to the sharing of
benefits has been avoided.
The Minister would issue the permit on being satisfied, among other things, that:
• environmental assessment (if required) was undertaken and the process is completed;
• the proposed access would be ecologically sustainable and consistent with the
conservation of Australia's biodiversity;
• submissions from interested persons and organizations (if required) had been taken into
account;  and
• there was a benefit-sharing contract between  the parties which addressed the following
major issues:
- prior informed consent of  any Indigenous owners of biological resources;
- mutually agreed terms;  and- adequate benefit-sharing arrangements, including protection for and valuing 
of Indigenous knowledge, and if practicable, that some benefits would be 
used for biodiversity conservation in the area from which the resource was 
obtained.
The contract would only have effect if the Minister issued an access permit.IP/C/W/310
Page 12
Criteria for the Access and Benefit-sharing Scheme
To ensure that the scheme meets its objectives , it was developed with the following criteria in
mind.
Minimise transaction costs:
• Fees for access permits would be set at a moderate level, consistent with other fees under
the EPBC Act regulations.  Fees should not act as a deterrent to bioprospecting,particularly for independent researchers.
• Development of a model contract.  Use of a model contract would not be mandatory.  Its
availability should minimize parties' costs by limiting the time and therefore costs
involved in drafting a new agreement for each transaction.
Maximize certainty:
• The requirements of the scheme would be set out clearly in the section 301 regulations.
Explanatory documentation would also assist parties to understand and use the scheme.
• Regulations would provide a legislative basis and therefore clear authority for benefit-
sharing agreements.  (The authority to do this has not been clear in some existinglegislation).
• The regulations would not alter existing property law in Australia.  Access providers need
to be clear as to their own rights to deal with these resources.
Transparency and accountability:
• To the extent possible, and allowing for concerns about confidentiality, information about
access and benefit-sharing agreements would be made public.
• Where there are potential environmental impacts from access activities, environmental
assessment would be required, permitting public comment on the proposed activity.
• Administrative processes and the factors which must be taken into account in decision
making about permits would be set out clearly in the regulations.
Flexibility:
• The number of permits that an applicant may require would be minimized consistent with
protecting the environment and conserving biodiversity.
Avoiding duplication:
• Accreditation provisions would be design ed to avoid duplication of requirements
applying to applicants or resource providers.
Simplicity, accessibility and efficiency:
• Environment Australia would administer the permits under the scheme except where
accreditation is granted.  However, harmonization (through accreditation provisions)IP/C/W/310
Page 13
would ensure consistency at the Commonwealth level and make access arrangements
easier to understand and use.
• Environment Australia would develop an access page on its website allowing applicants
to apply for permits on-line and include links to other permits under the EPBC Act and
accredited schemes.
• There would be time-frames within which access decisions would be made.
Issues affecting owners of Indigenous people’s land and holders of native title:
• The Minister would take certain factors into account (in particular, that there has been
prior informed consent), when deciding whether to grant or refuse an access permit
involving Indigenous people's land or holders of native title.
• The decision of Indigenous owners of biological resources to deny access to their
resources would not be reviewable.
Industry and research issues:
• Proposals for benefit-sharing arrangements would allow the parties to negotiate a wide
range of benefits;  including appropriate or simplified terms facilitating benefit-sharing to
be negotiated where research is undertaken for non-commercial purposes.
• Freedom for the parties to negotiate contracts which would meet their own interests and,
through clear and agreed terms, promote certainty.
Environmental issues:
• The Minister must be satisfied that the proposed access would, taking into account the
precautionary principle, be ecologically sustainable and consistent with the conservation
of Australia's biological diversity.
• Environmental impact assessment would be required where the environmental impacts
from access activities are likely to be more than negligible.
• The Minister would be able to attach conditions to permits, through which a wide range
of environmental objectives can be met, including, for example, a requirement to lodge
voucher specimens in Australian public collection institutions and for the provision of
information about the specimens.
Contribute towards a nationally consistent approach to access and benefit-sharing:
• The scheme would reflect the principles e nunciated by the Commonwealth State Working
Group in 1996 as a possible underpinning of a nationally consistent approach.
• The scheme would ensure respect for property rights.
• The scheme would take account of the diversity of access providers.IP/C/W/310
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Harmonization of arrangements at the Commonwealth level:
• The scheme would allow for existing access schemes (and, to the extent to which they
exist, provisions for benefit-sharing) to continue to operate and avoid duplication.
Ex- situ Collections:
• The scheme would enable holders of such collections to determine whether they wished
to be covered by the scheme or to seek exemption where existing arrangements meet the
objectives of the scheme (i.e. accreditation).
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