Clark David; Bayly AndrewHon Dr DAVID CLARK (Minister of Commerce and Consumer Affairs): Once again I bring the member back to the fact that similar regimes exist in the United States the United Kingdom Australia and numerous other countries—these are fairly standard provisions and we would expect our commissioner to have regard to their commercial environment and be advised appropriately. I think the prospect of the sky falling in and the kind of scenario playing out that Mr Bayly is depicting is very unlikely or equally as likely in the United States the United Kingdom Australia and various other countries around the world that have adopted these standards. I think it's very sensible to have a regime where there is a test even if it only gets used once every 30 years for situations where the wider public benefit has not been taken into account in the availability of intellectual property once the exclusive statutory licence has been available for a period of time already for the owner of that property to—as we've canvassed in the debate—take advantage of. And even then when there is an exclusive licence if there is one granted every 30 years say the intellectual property owner still gets paid the royalties.ANDREW BAYLY (National—Port Waikato): Thank you Madam Chair. I'm not going to continue labouring this but I do think there's a fundamental difference because the issue around determining this and the commercial stuff in the test used here—we have an opportunity where New Zealand sits on the intellectual property (IP) spectrum. And I know the Minister's spoken about only two claims in the last 30 years—the issue is that the world has changed. Thirty years ago no one talked about intellectual property. If you look at every listed company on the stock exchange now on average half of their value and half of their market value comes from the intellectual property. The world has moved on: intellectual property is the currency of value going forward. That's why it is absolutely essential we get the right intellectual property protection in place right? Just because we've picked up stuff from around the world—I can tell you that most countries look at their IP laws much more regularly than we do and make sure they're up to date. In doing so we can choose where on the spectrum we want to have our IP laws sitting.The Minister seems to give this impression that because America and Britain or whatever have these laws that are the best laws and we must mirror them no more no less—actually there's an opportunity where New Zealand wants to be in the spectrum and whether we want to be particularly protecting our horticulture industry which is so vital to New Zealand. I think and I say it again the three years is an absurdly short period of time and some of these tests are very very subjective.Just turning to the royalty payment which is clause 104 where the Minister says Hey presto you don't need to worry about it because they're going to get paid the royalty anyway." The terms are set out: "The compulsory licence … must set out the amount of or method of calculating the royalty; and … the royalty must be paid;". So we've had this big debate we've lost to Monsanto so this IP is all going to be made commercially available I suppose the big question is: who determines the royalty payment? Is that a capability residing in the commissioner's office? Because here we go this is not a negotiation I presume; this is a determination I presume; or is it a negotiation between Monsanto and our little plant breeder in Pukekohe; or is it the commissioner doing this and if so what skills is the commissioner going to have to be able to draw on to be able to decide this and is it a determination of the royalty fees?"