Bayly AndrewANDREW BAYLY (National—Port Waikato): I think this clause should be renamed The nationalisation of commercially developed intellectual property" because that's effectively what it is isn't it? Clause 103 is obviously what the Minister has referred to. I'm hoping the Minister has a chance to listen to this because I'm about to pose some questions.What this is all about is saying that people in the private sector who have spent a fortune not only in money—CHAIRPERSON (Greg O'Connor): Do feel free to wait for the Minister's attention—I won't take the time off your time.Hon Dr David Clark: Apologies Mr Chair.CHAIRPERSON (Greg O'Connor): The member may restart. He may start from the start.ANDREW BAYLY: Thank you Mr Chair. That will lead to a better debate and I appreciate giving the Minister the time needed to find out some of the answers. As I said I think this clause could quite rightly be deemed "the nationalisation of commercially developed intellectual property". What this is about is commercial operators who have spent a lot of time and money—and in most cases it's not just about the monetary amount. It's the time spent developing and propagating species and testing them and then you have under clause 103 three criteria where that intellectual property could be picked up at the commissioner's behest and actually used and made available to other people. So the first thing is there are three tests. The Minister didn't actually refer to them in detail but the first one is that three years have elapsed from the date on which the plant variety right was granted. So that raises the first issue. You spend 20 years developing a plant species and then you're waiting for the process with the commissioner—and let's now put on our practical hat—which we seem forget in Parliament in little old Wellington—and what might you have to do? Well you're going to have to work out who's going to grow your new plant variety so that might mean multiple growers. You have to go and secure those arrangements. There may be consenting issues with local councils to be able to do that new crop under the new regime that's been imposed by the Labour Government on farmers. It might be water access issues. It might be why there are delays in getting that access to be able to grow that new plant variety on a commercial basis. Then you've got to put in place storage of your product. Then in you have to put in logistics distribution arrangements. And heaven forbid—we haven't even talked about the marketing arrangements how it will be distributed and who it is sold to how branding and advertising is done. All that's got to be done and of course we never think about that here in Parliament do we? But all that's got to be done and put into place. If I understand it—and this is where I need to understand from the Minister—it's within three years having elapsed from the issuing of the plant variety. There may be very good reasons why someone hasn't been able to do that. Are there extenuating reasons and do you have to go cap in hand to the commissioner and say "Sorry commissioner I haven't been able to do this because you know I've got a few other issues and I haven't been able to secure the right people to grow the damn thing in the first place."?So what are the conditions around the three-year rule? That's the first thing. The other one—and I think this is one we will focus on as there is public interest. But let's just deal with the three-year rule and extenuating circumstances and what is the process that might take place.Hon Dr DAVID CLARK (Minister of Commerce and Consumer Affairs): The process around that is that somebody has to apply to the commissioner for this and the commissioner makes a judgment. So it's not that three years lapse and then suddenly something becomes available. The commissioner would have to judge that there was something untoward going on here that was not in the public interest. I think we would to see competition in the market—to the member's point.The other thing to say about that is that the judgment of the commissioner is also appealable to the court beyond that so there's a process around it and in that case where the commissioner made a judgment the plant variety right owner would still get a royalty as well. So this is a regime that is very seldom called on. As I said there are only two cases in the last 30 years and one of those was about feijoa trees—I don't know the detail; I've asked my officials to remind me of that—and ultimately it was granted. The other one was settled commercially outside of the process once the appeal was lodged. So this is a very very very rare thing that we wouldn't expect to see wide usage of and generally when somebody develops intellectual property they want to make the best use of it. If there are extenuating circumstances in why they hadn't been able to get it to market I'm sure the commissioner would take that into account. It would be my expectation.CHAIRPERSON (Greg O'Connor): Can I just indicate that when the Minister needs to take advice just to be fair to the questioner so that he's getting attention I'm happy to give the questioner more time so the Minister can get that advice.Hon Dr DAVID CLARK: Great. But we've got the advice that we need at the moment. Thank you."