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Reform of the Biodiscovery Act 2004
Queensland was the first jurisdiction in Australia to regulate biodiscovery activities when it passed the Biodiscovery Act 2004 (the Act).
Since the Act commenced, significant international developments have changed the regulatory requirements around access and benefit sharing. The most significant is the Nagoya Protocol, which came into effect in 2014. Australia signed the Protocol in 2012 but is yet to ratify it.
The Nagoya Protocol requires that biodiscovery only be undertaken with the prior informed consent of those who have a right to grant access, including Indigenous people and local communities. It also requires that the benefits of biodiscovery are fairly and equitably shared.
Reform of Queensland’s Act will help ensure that biodiscovery entities can collaborate internationally and access markets, and continue to demonstrate leadership in biodiscovery research and commercialisation.
Reform also represents a key step in recognising the rights of First Nations people with respect to traditional knowledge.
A suite of priority amendments to the Biodiscovery Act 2004 were introduced through the Biodiscovery and Other Legislation Amendment Act 2020, which was passed by Parliament on 11 August 2020.
Amongst other changes, the amendments introduced a new obligation for the use of traditional knowledge in biodiscovery. The traditional knowledge obligation requires that a person takes all reasonable and practical steps to only use traditional knowledge for biodiscovery with the agreement of the custodian of the knowledge.
This protection is important in aligning the Biodiscovery Act 2004 with the Nagoya Protocol and in providing adequate protection for the traditional knowledge of First Nations peoples. This protection will give them the confidence to share their knowledge with researchers and the ability to derive benefits from use of traditional knowledge in biodiscovery.
The amendments also include:
- removing the requirement for a Biodiscovery Plan, simplifying the approval process for biodiscovery entities
- exempting plants subject to the FAO Treaty from this Act
- updating provisions on executive liability offences and protection of the Minister to reflect changes to other legislation.
The amendments commenced on 30 September 2020.
For details on the Biodiscovery and Other Legislation Amendment Act 2020 consult the Queensland Parliamentary website.
The Queensland Government has released an options paper detailing options for reform of the Act for public consultation from 29 November 2018 to 15 February 2019.
The options paper built on the 2016 Statutory Review of the Biodiscovery Act 2004, the Government Response and feedback received through previous consultation.
Consultation on the Options Paper closed at midnight on Friday 15 February 2019.
Key areas of reform discussed in the options paper included:
- the extent to which Queensland’s biodiscovery framework should be amended to be consistent with the Nagoya Protocol, including:
- the rights of Aboriginal and Torres Strait Islander people regarding the use of resources and traditional knowledge for biodiscovery,
- the scope of the Act regarding private land, land with exclusive possession native title, and non-commercial research
- clarifying key terms in the Act that may currently cause confusion, such as the definition of commercialisation, and
- improving the effectiveness and efficiency of the permitting and contractual framework.
Review and government response
On 26 April 2018, the Queensland Government released an independent Statutory Review of the Biodiscovery Act 2004 (the Review) and a response to the 45 recommendations that the Review contained.
Consultation on the Review and Government Response was undertaken until 8 June 2018, and included inviting written submissions, holding information sessions and holding one-on-one discussions with stakeholders. Written submissions were received from academic and research institutions, industry and individuals.
Two of the Review’s recommendations (21 and 23) relating to downstream contracting arrangements were identified as critical by industry. In response, the Act was amended through the Gasfields Commission and Other Legislation Amendment Act 2017 No. 35.