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). Biodiscovery in Queensland involves the collection and analysis of native biological material (e.g., plants, animals and other organisms) for commercial applications, such as pharmaceuticals and insecticides.
In September 2020, the Biodiscovery and Other Legislation Amendment Act 2020 reformed the Act to include protections for the use of First Nations peoples’ traditional knowledge in biodiscovery to improve the alignment with international standards such as the Nagoya Protocol on Access and Benefit Sharing.
The Nagoya Protocol requires that biodiscovery only be undertaken with the prior informed consent of those who have a right to grant access, including First Nations’ peoples and local communities. It also requires that the benefits of biodiscovery are fairly and equitably shared.
The traditional knowledge obligation under the Act requires that a person takes all reasonable and practical steps to only use traditional knowledge for biodiscovery with the agreement of the custodians of the knowledge.
This reform will help ensure that biodiscovery entities can collaborate internationally and access markets and continue to demonstrate leadership in biodiscovery research and commercialisation.
This reform also represents a key step in recognising the rights of First Nations people with respect to traditional knowledge, supporting them to decide how their knowledge is used, and to gain fair benefits from its use in biodiscovery.
- April–May 2021—Public consultation on the draft Traditional Knowledge in Biodiscovery Code of Practice and Guidelines has now closed. All submissions received will be considered before finalising the Code and Guidelines.
- 30 September 2020—Biodiscovery and Other Legislation Amendment Act 2020 amendments commenced
- 11 August 2020— Biodiscovery and Other Legislation Amendment Act 2020 passed
- November 2018–February 2019—Pathways to reform: Biodiscovery Act 2004 Options paper consultation. The options paper built on the 2016 Statutory Review of the Biodiscovery Act 2004, the Government Response and feedback received through previous consultation.
- June 2018—Statutory review of Biodiscovery Act 2004 and Queensland Government response released.
Current stage—Traditional Knowledge in Biodiscovery Code of Practice and Guidelines
The Traditional Knowledge in Biodiscovery Code and Guidelines are currently being developed to assist those involved in biodiscovery research, or the commercialisation of native biological material or biodiscovery research products to comply with the traditional knowledge obligation under the Act. This obligation must be met before traditional knowledge can be used in biodiscovery.
The draft Code and Guidelines were co-designed with the department’s Traditional Knowledge Roundtable, which includes First Nations peoples and experts in traditional knowledge, and representatives from biodiscovery entities (including universities and commercial research organisations).
Public consultation on the Code and Guidelines closed on 28 May 2021 and submissions are being considered.
Code of practice
- Describes the circumstances under which the traditional knowledge obligation applies, and what is meant by the use of traditional knowledge.
- Outlines the principles, performance outcomes and minimum requirements for the use of traditional knowledge. This includes practical steps for identifying the custodians of the traditional knowledge; obtaining free, prior and informed consent for the use of the knowledge; and establishing benefit sharing on mutually agreed terms.
The Guidelines aim to support genuine partnerships between First Nations peoples and biodiscovery entities and provide practical information on how to meet the Code requirements and implement best practice.
Amendments to the Act commenced on 30 September 2020, including:
- Introduction of the traditional knowledge obligation, requiring that a person takes all reasonable and practical steps to only use traditional knowledge for biodiscovery with the agreement of the custodians of the knowledge.
- Removal of the Biodiscovery Plan requirement to simplify the approval process for biodiscovery entities.
- Exemption of plants subject to the International Treaty on Plant Genetic Resources for Food and Agriculture Treaty (FAO Treaty).
- Updating provisions to reflect changes to other legislation, such as on executive liability offences and protecting the Minister from liability.
View the Biodiscovery and Other Legislation Amendment Act 2020 on the Queensland Parliamentary website.
The Queensland Government released an options paper for public consultation between November 2018 and February 2019. The paper detailed options for reform of the Act and built on the 2016 Statutory Review of the Biodiscovery Act 2004, the Government Response and feedback received through previous consultation.
Key areas of reform outlined 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 of native title, and non-commercial research.
- Clarifying key terms in the Act that may currently cause confusion, such as the definition of commercialisation.
- Improving the effectiveness and efficiency of the permitting and contractual framework.
Biodiscovery Act review and government response
On 26 April 2018, the Queensland Government released an independent Statutory Review of the Biodiscovery Act 2004 (the Review) (PDF, 2.1MB) and a response (PDF, 765KB) 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 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.