Plant Variety Rights Act 1987 (reprint as at 1 July 2013), New Zealand, WIPO Lex

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English Plant Variety Rights Act 1987 (reprint as at 1 July 2013)

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The Plant Variety Rights Act 1987

Reprint as at 1 July 2013

Plant Variety Rights Act 1987

Public Act 1987 No 5 Date of assent 21 February 1987

Commencement see section 1(2)

Contents Page

Title 3 1 Short Title and commencement 3 2 Interpretation 3 3 Application [Repealed] 5 4 Act to bind the Crown 5

Part 1 Grants of plant variety rights

5 Applications 5 6 Objections before grant 7 7 Withdrawal or lapse of applications 8 8 Inspection of applications 8 9 Provisional protection 8 10 Making of grants 8 11 Varieties bred or discovered by 2 or more persons

independently 11

12 Priorities resulting from earlier overseas applications 11

Note Changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in this reprint. A general outline of these changes is set out in the notes at the end of this reprint, together with other explanatory material about this reprint. This Act is administered by theMinistry of Business, Innovation, andEmployment.

Plant Variety Rights Act 1987 Reprinted as at

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13 Cancellation of grants because of earlier overseas applications

14 Date and term of grants 12 15 Objections after grant 13 16 Cancellation of grants 13 17 Rights of grantees 14 18 Exceptions to grantees’ rights 16 19 Licences 17 20 Notice of protection 17 21 Compulsory licences and sales 17 22 Use of denomination 19

Part 2 Appeals

23 Rights of appeal 19 24 Appeals to be made to District Court 20 25 Assessors 21 26 Procedure 22 27 Suspension of decision while appeal pending 22

Part 3 Plant Variety Rights Office

28 Plant Variety Rights Office 22 29 Seal of Office 23 30 Commissioner, Assistant Commissioners, and officers 23 31 Officers and employees not to acquire interests in grants 24 32 Advisory and technical committees, and technical

advisors 24

33 Delegations 25 34 Plant Variety Rights Journal 26

Part 4 Miscellaneous provisions

35 Service of notices, etc 26 36 Fees and refunds 27 37 Offences and penalties 27 38 Regulations 28 38A Orders in Council as to convention parties 29 39 Transitional provisions 30 40 Consequential amendment [Repealed] 30 41 Repeals and revocations [Repealed] 31

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Schedule 32 Plants to which Act applies

[Repealed]

An Act to consolidate and amend the law relating to the granting of proprietary rights in respect of plant varieties

1 Short Title and commencement (1) This Act may be cited as the Plant Variety Rights Act 1987. (2) This Act shall come into force on a day to be fixed by the

Governor-General by Order in Council. Section 1(2): this Act brought into force, on 16 June 1988, by the Plant Variety Rights (Commencement) Order 1988 (SR 1988/111).

2 Interpretation In this Act, unless the context otherwise requires,— applicant, in relation to any application, means the person by whom or on whose behalf that application is made application, except in section 12, means an application for a grant Assistant Commissioner means an Assistant Commissioner of Plant Variety Rights appointed under section 30(1)(b) Commissioner means the Commissioner of Plant Variety Rights appointed in accordance with section 30(1)(a); and includes an Assistant Commissioner convention party means an entity that for the time being— (a) is declared by an order under section 38A to be a con-

vention party for the purposes of this Act; or (b) is a contracting party to the body that, on the commence-

ment of the Plant Variety Rights Amendment Act 1999, was known as the International Union for the Protection of New Varieties of Plants (constituted under the inter- national agreement then called the International Con- vention for the Protection of New Varieties of Plants)

denomination, in relation to any protected variety, or any var- iety that was a protected variety until the grant made in respect of it expired, means the distinguishing name or identification

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approved for that variety by the Commissioner under section 10(2)(a) grant means a grant of plant variety rights under this Act grantee means the holder of a grant; and, in relation to a pro- tected variety, means the holder of a grant in respect of that variety Journalmeans the Plant Variety Rights Journal required to be published by section 34(1) Minister means the Minister of the Crown for the time being responsible for the administration of this Act Ministry means the department of State for the time being responsible for the administration of this Act Officemeans the Plant Variety Rights Office established under section 28(1) owner, in relation to any variety, means a person who bred or discovered that variety, and includes a successor of that person plant— (a) includes a fungus; but (b) does not include an alga or a bacterium protected variety means a variety in respect of which a grant is in force publication means public notification; and includes publica- tion in the Journal reproductive material, in relation to any variety, means any portion of a plant of that variety by means of which plants of that variety may be reproduced or propagated; and includes spores, seeds, and whole plants sale includes any disposition for valuable consideration and any offer for sale; and sell and sold have corresponding mean- ings Secretary means the chief executive of the Ministry variety means a cultivar, or cultivated variety, of a plant, and includes any clone, hybrid, stock, or line, of a plant; but does not include a botanical variety of a plant. Compare: 1973 No 37 s 2 Section 2 convention party: inserted, on 14 October 1999, by section 2(2) of the Plant Variety Rights Amendment Act 1999 (1999 No 122).

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Section 2 Director-General: repealed, on 1 August 1990, by section 2(1) of the Plant Variety Rights Amendment Act 1990 (1990 No 82). Section 2 international agreement: repealed, on 14 October 1999, by section 2(2) of the Plant Variety Rights Amendment Act 1999 (1999 No 122). Section 2Minister: substituted, on 1 August 1990, by section 2(1) of the Plant Variety Rights Amendment Act 1990 (1990 No 82). Section 2Ministry: substituted, on 1 August 1990, by section 2(1) of the Plant Variety Rights Amendment Act 1990 (1990 No 82). Section 2 plant: substituted, on 1 July 1994, by section 2(1) of the Plant Variety Rights Amendment Act 1994 (1994 No 52). Section 2 Secretary: inserted, on 1 August 1990, by section 2(1) of the Plant Variety Rights Amendment Act 1990 (1990 No 82). Section 2UPOV country: repealed, on 14 October 1999, by section 2(2) of the Plant Variety Rights Amendment Act 1999 (1999 No 122). Section 2 variety: substituted, on 1 July 1994, by section 2(2) of the Plant Variety Rights Amendment Act 1994 (1994 No 52).

3 Application [Repealed] Section 3: repealed, on 1 July 1994, by section 2(3) of the Plant Variety Rights Amendment Act 1994 (1994 No 52).

4 Act to bind the Crown This Act shall bind the Crown. Compare: 1973 No 37 s 3

Part 1 Grants of plant variety rights

5 Applications (1) Every application shall be made on a form approved by the

Commissioner; and shall— (a) be accompanied by—

(i) the quantity of seed (if any) prescribed in respect of varieties of the kind concerned; and

(ii) a technical questionnaire, supplied by the Com- missioner and completed by the applicant, in re- spect of the botanical taxon to which the subject of the application belongs; and

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(iii) where required by regulations made under sec- tion 38, colour photographs of material of the variety to which the application relates; and

(b) be completed and signed by or on behalf of the appli- cant; and

(d) be accompanied by the prescribed application fee. (2) Within the prescribed period after making an application, the

applicant shall give to the Commissioner— (a) if required by the Commissioner, and in such detail as

the Commissioner requires, a description— (i) of the origin and breeding of the variety con-

cerned; and (ii) on a form provided by the Commissioner for the

purpose, of the botanical features of that variety; and

(iii) of those aspects of that variety that, in the opinion of that applicant, distinguish it from those other varieties whose existence was a matter of com- mon knowledge at the time of that application; and

(b) a proposed denomination for that variety; and (c) the prescribed trial or examination fee.

(3) Within the prescribed period after being requested by the Com- missioner to do so, an applicant shall give to the Commissioner either or both of the following in relation to the application concerned: (a) such reproductive material of the variety concerned as

the Commissioner specifies: (b) any other information that the Commissioner thinks

relevant to that application and requests from that applicant.

(4) An application that complies with subsection (1) at the time it is received at the Office shall, for the purposes of this Act, be deemed to be made at that time.

(5) An application that does not comply with subsection (1) at the time it is received at the Office shall, for the purposes of this

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Act, be deemed to bemade at the time at which it first complies with that subsection while being held at the Office.

(6) If satisfied that an application complies with subsection (1), the Commissioner shall— (a) notify in the Journal the making of that application; and (b) advise the applicant accordingly.

(7) The Commissioner shall notify in the Journal every proposed denomination for a variety given to the Commissioner by any applicant that, in the opinion of the Commissioner, complies with the prescribed requirements. Compare: 1973 No 37 ss 14, 15(4), 16 Section 5(1): substituted, on 2 September 1996, by section 2(1) of the Plant Variety Rights Amendment Act 1996 (1996 No 141). Section 5(2)(a): amended, on 2 September 1996, by section 2(2) of the Plant Variety Rights Amendment Act 1996 (1996 No 141).

6 Objections before grant (1) Any person who considers that the Commissioner should not

approve a proposed denomination notified in the Journal may, within 3 months of its notification, by notice in writing to the Commissioner, object to the approval of that name.

(2) Any person who considers that an application has been made by or on behalf of an applicant who is not an owner of the variety concerned may, at any time before a grant is made to the applicant in respect of that variety, by notice in writing to the Commissioner, object to the making of a grant in respect of that variety to the applicant.

(3) Any person who considers that an application has been made in respect of a variety that is not new, distinct, stable, and homogeneous (as required by section 10) may, at any time before a grant is made in respect of that variety, by notice in writing to the Commissioner, object to the making of a grant in respect of that variety.

(4) If an objection is made under this section, the Commissioner shall not make a grant in respect of the variety concerned be- fore giving the applicant concerned and the objector a reason- able opportunity to be heard. Compare: 1973 No 37 s 19

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7 Withdrawal or lapse of applications (1) Any application may be withdrawn by the applicant at any

time before a grant is made in respect of it. (2) The withdrawal of an application shall not affect the liability

of the applicant for any fees that may have become payable up to the date of that withdrawal.

(3) If any information or material required to be given to the Com- missioner under subsection (2) or subsection (3) of section 5 is not supplied within the prescribed period, the application con- cerned shall lapse upon the expiration of that period. Compare: 1973 No 37 s 13(2)

8 Inspection of applications After an application is made, the Commissioner shall hold it and any document, instrument, or photograph accompanying it and any document or instrument supplied subsequently pur- suant to subsection (2) or subsection (3) of section 5 (or a copy of that document, instrument, or photograph, certified by the Commissioner to be a true copy) available for public inspec- tion during ordinary business hours of the Office. Section 8: substituted, on 2 September 1996, by section 3 of the Plant Variety Rights Amendment Act 1996 (1996 No 141).

9 Provisional protection (1) Subject to subsection (2), on and after the day on which an

application is made, the applicant shall have the same rights to take proceedings under this Act as if on that day a grant had been made to the applicant in respect of the variety concerned.

(2) The rights conferred by subsection (1) shall be deemed never to have been conferred if— (a) the application concerned is withdrawn or lapses; or (b) the Commissioner declines to make a grant in respect

of that application. Compare: 1973 No 37 s 18

10 Making of grants (1) The Commissioner shall—

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(a) subject to sections 11 and 31(2), make a grant in respect of every application that is eligible for the making of a grant; and

(b) decline to make a grant in respect of every application that is not eligible for the making of a grant.

(2) An application shall be eligible for the making of a grant if, and only if, the applicant has given the Commissioner all re- productive material of the variety concerned requested by the Commissioner, and the Commissioner— (a) has approved for that variety a denomination proposed

by the applicant; and (b) is satisfied that that applicant is an owner of that variety;

and (c) has received the prescribed fee; and (d) is satisfied that that variety is new, distinct, homoge-

neous, and stable. (3) The Commissioner shall approve a proposed denomination for

a variety if, and only if, in the opinion of the Commissioner, it complies with the prescribed requirements.

(4) For the purposes of subsection (2)(d),— (a) subject to subsection (6), a variety is new if there has

been no sale of that variety with the agreement of any relevant owner of that variety— (i) in New Zealand, for more than 12 months before

the date on which that application was made; and (ii) overseas, for more than 6 years before that date

in the case of a woody plant, or for more than 4 years before that date in every other case:

(b) a variety is distinct if it is distinguishable by 1 or more characteristics from any other variety whose existence was a matter of common knowledge when the applica- tion concerned was made.

(c) a variety is stable if, in its essential characteristics, it remains true to its description— (i) where the applicant concerned has described par-

ticular cycles of reproduction or multiplication for that variety, at the end of each such cycle; and

(ii) in every other case, after repeated propagation or reproduction.

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(5) In determining, for the purposes of subsection (2)(d), whether or not the Commissioner is satisfied that a variety is homoge- neous, the Commissioner shall have regard to the particular features of its sexual reproduction or vegetative propagation (whichever is applicable to it).

(6) Where, to increase the stock of a variety or for evaluation trials or tests of a variety, its owner makes arrangements under which— (a) reproductive material of that variety is to be sold to or

used by some other person; and (b) any unused portion of that reproductive material, and all

the material of any sort produced from that reproductive material, is— (i) to be sold to that owner, by that other person; or (ii) otherwise to become the property of that

owner,— for the purposes of subsection (4)(a), no account shall be taken of any sale under that arrangement of— (c) reproductive material of that variety by that owner to

that other person; or (d) material of any sort of that variety by that other person

to that owner. (7) For the purposes of subsection (2)(d), a variety does not cease

to be new by virtue only of the sale at any time of— (a) material that is not reproductive material; or (b) reproductive material disposed of for purposes other

than reproduction,— that, having been produced during the breeding, increase of stock, tests, or trials, of that variety, is not (or no longer) re- quired for any of those activities.

(8) For the purposes of subsection (4)(b), the characteristics by which a variety may be distinguished from others may be mor- phological, physiological, or of any other kind or description, so long as those characteristics are capable of precise descrip- tion and recognition. Compare: 1973 No 37 s 15(1)

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11 Varieties bred or discovered by 2 or more persons independently Subject to section 12, where— (a) before a grant is made in respect of a variety, 2 or more

applications in respect of that variety have been made; and

(b) the Commissioner is satisfied that the 2 or more ap- plicants concerned are persons who, or successors of persons who, bred or discovered that variety independ- ently; and

(c) the Commissioner is satisfied that, but for this section, each of those 2 or more applicants is or would be en- titled to a grant in respect of that variety,—

the Commissioner shall make a grant to that one of those 2 or more applicants whose application in respect of that variety was made first. Compare: 1973 No 37 s 13A(1), (2)

12 Priorities resulting from earlier overseas applications Where— (a) any person makes an application for a grant in New

Zealand in respect of a variety in respect of which that person has earlier,— (i) after a convention party that is a State, part of a

State, or a territory for whose international rela- tions a State is responsible most recently became a convention party, made in and under the law of that convention party an equivalent application that has been accepted; or

(ii) after a convention party that is not a State, part of a State, or a territory for whose international relations a State is responsible most recently be- came a convention party, made under the rules of that convention party an equivalent application that has been accepted; and

(b) that application for a grant in New Zealand is made not more than 12 months after that equivalent applica- tion (or, if more than 1 equivalent application has been

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made, whether in or under the rules of several conven- tion parties, the earliest of them) was made; and

(c) a claim for priority in relation to that equivalent appli- cation accompanies the application for a grant in New Zealand; and

(d) within 3 months of the making of that application for a grant in New Zealand, a copy of any documents consti- tuting that equivalent application, certified as correct by the authority to which it was made, is submitted to the Commissioner,—

sections 10(4)(b) and 11 shall apply to that application for a grant in New Zealand as if it had been made when that equiva- lent application was accepted. Compare: 1973 No 37 s 13A Section 12(a): substituted, on 14 October 1999, by section 2(3) of the Plant Variety Rights Amendment Act 1999 (1999 No 122). Section 12(b): substituted, on 14 October 1999, by section 2(3) of the Plant Variety Rights Amendment Act 1999 (1999 No 122).

13 Cancellation of grants because of earlier overseas applications Where— (a) after a grant is made to any person in respect of a variety,

another person makes an application in respect of that variety; and

(b) the Commissioner is satisfied that, if that grant had not already been made, that other person would, by virtue of section 12, be entitled to a grant in respect of that application,—

theCommissioner shall cancel that grant, and shall make a new grant to the person who would be entitled to it if the cancelled grant had never been made. Compare: 1973 No 37 s 13A(8)

14 Date and term of grants (1) The Commissioner shall seal every grant with the seal of the

Office, and endorse it with the date of its making. (2) Except as otherwise provided in this Act, every grant shall be

in force for a term (commencing on the day it is made)—

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(a) of 23 years, or any longer period specified in that behalf by the Governor-General by Order in Council (made before, on, or after the day that grant is made, but before that grant expires), in the case of a woody plant or its rootstock; and

(b) of 20 years in every other case;— and, unless sooner cancelled, shall then expire.

(3) The Commissioner shall keep a register, and record in it the date and other prescribed particulars (if any) of every grant. Compare: 1973 No 37 s 20

15 Objections after grant (1) Any person who considers that a grant has been made in re-

spect of a variety that is not new, distinct, stable, and homoge- neous (as required by section 10) may at any time, by notice in writing to the Commissioner, object to the continuation in force of that grant.

(2) Any person who considers that a grant was made to a person who was not an owner of that variety may, by notice in writing to the Commissioner, object to the continuation in force of that grant.

(3) An objection under subsection (2) may be accompanied by an application in respect of the variety concerned.

16 Cancellation of grants (1) The Commissioner may cancel a grant before the end of its

term if so requested in writing by the grantee. (2) Subject to subsection (3), the Commissioner shall cancel a

grant at any time during its term if satisfied— (a) that any information supplied in the application con-

cerned or in relation to that application was incorrect and that if the correct information had been known be- fore that grant wasmade, the Commissioner would have declined to make that grant; or

(b) that the variety concerned was not, at the time of the ap- plication concerned, new and distinct within the mean- ing of section 10; or

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(d) that the grantee was not, at the time that grant wasmade, an owner of that variety; or

(e) that the grantee of that variety, after being requested by the Commissioner to provide the Commissioner (within a period specified by the Commissioner) with reproduc- tive material capable of producing that variety with its characteristics as described when the grant was made, has failed to do so; or

(f) that that grantee, after being requested by the Commis- sioner to allow the Commissioner (within a period spe- cified by the Commissioner) to inspect the measures taken for the maintenance of that variety, or to provide documents or information in relation to that variety, has failed to do so; or

(g) that any annual grant fee in relation to the grant has not been paid within the prescribed period; or

(h) [Repealed] (3) Before cancelling a grant under subsection (2), the Commis-

sioner shall give the grantee written notice of intention to do so and, unless that grantee shows sufficient cause within 28 days of the date of the notice why that grant should not be cancelled, shall cancel that grant on the expiration of that period.

(4) Where— (a) the Commissioner has cancelled a grant under subsec-

tion (2)(d); and (b) any application (other than the application in respect of

which that grant was made) has at any time (whether before or after the making of that grant) been made in respect of the variety concerned,—

the Commissioner shall deal with all applications in respect of that variety as if that grant had never been made. Compare: 1973 No 37 ss 13A(8), 20, 24 Section 16(2)(h): repealed, on 2 September 1996, by section 4 of the Plant Variety Rights Amendment Act 1996 (1996 No 141).

17 Rights of grantees (1) Subject to section 19, a grantee shall have the exclusive right—

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(a) to produce for sale, and to sell, reproductive material of the variety concerned:

(b) if that variety is a plant of a type specified by the Gov- ernor-General by Order in Council for the purposes of this paragraph, to propagate that variety for the purposes of the commercial production of fruit, flowers, or other products, of that variety:

(c) subject to any terms and conditions that grantee speci- fies, to authorise any other person or persons to do any of the things described in paragraph (a) or paragraph (b).

(2) Notwithstanding subsection (1) the Minister may, by notice in the Journal, and after ensuring that the grantee under the grant concerned will be adequately compensated, impose such re- strictions on the exercise of the rights of that grantee in respect of any specified variety as the Minister thinks necessary in the public interest during a state of national emergency declared under the Civil Defence Emergency Management Act 2002.

(3) A grant may be assigned, mortgaged, or otherwise disposed of; and may devolve by operation of law.

(4) The rights of a grantee under a grant are proprietary rights, and their infringement shall be actionable accordingly; and in awarding damages (including any exemplary damages) or granting any other relief, a court shall take into consider- ation— (a) any loss suffered or likely to be suffered by that grantee

as a result of that infringement; and (b) any profits or other benefits derived by any other person

from that infringement; and (c) the flagrancy of that infringement.

(5) Where there is imported into New Zealand any reproductive material of a protected variety, any propagation, sale, or use, of that material— (a) as reproductive material; and (b) without the authority of the grantee concerned,— constitutes an infringement of the rights of that grantee under this section.

(6) The importation into New Zealand,— (a) from a country that is not a convention party of produce

of a protected variety; or

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(b) from a convention party of produce of a protected var- iety in respect of which, under the law of that country, it is not possible to make the equivalent of a grant,—

without the consent of the grantee is an infringement of the grantee’s rights under this section.

(7) The sale under the denomination of a protected variety of re- productive material of some other variety constitutes an in- fringement of the rights under this section of the grantee of that protected variety, unless the groups of plants to which those varieties belong are internationally recognised as being distinct for the purposes of denomination.

(8) Where, in any proceedings for the infringement of the rights under this section of a grantee, it is proved or admitted that an infringement was committed but proved by the defendant that, at the time of that infringement, the defendant was not aware and had no reasonable grounds for supposing that it was an infringement, the plaintiff shall not be entitled under this sec- tion to any damages against the defendant in respect of that in- fringement, but shall be entitled instead to an account of profits in respect of that infringement.

(9) Nothing in subsection (8) affects any entitlement of a grantee to any relief in respect of the infringement of that grantee’s rights under this section other than damages. Compare: 1973 No 37 s 22 Section 17(2): amended, on 1 December 2002, by section 117 of the Civil De- fence Emergency Management Act 2002 (2002 No 33). Section 17(6)(a): amended, on 14 October 1999, by section 2(4) of the Plant Variety Rights Amendment Act 1999 (1999 No 122). Section 17(6)(b): amended, on 14 October 1999, by section 2(4) of the Plant Variety Rights Amendment Act 1999 (1999 No 122).

18 Exceptions to grantees’ rights Notwithstanding section 17, any person may— (a) propagate, grow, or use a protected variety, for non-

commercial purposes; or (b) if the production of the hybrid or new variety concerned

does not require repeated use of that variety,— (i) hybridise, or produce a new variety from, a pro-

tected variety; or

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(ii) sell any hybrid of, or new variety produced from, a protected variety; or

Compare: 1973 No 37 s 22(3)

19 Licences The holder of a licence from a grantee shall have the same rights as that grantee to take proceedings in respect of any in- fringement of the rights of that grantee in respect of the var- iety concerned affecting the rights given under that licence and committed after it was granted. Compare: 1973 No 37 s 10(1)

20 Notice of protection (1) Any person who—

(a) has acquired rights in respect of a variety under section 9(1) or section 17; and

(b) sells any reproductive material of that variety,— shall take all reasonable steps, by means of suitable labelling or other identification of that material, to inform the purchaser concerned of those rights.

(2) In determining, for the purposes of section 17(8), whether or not any person had reasonable grounds for supposing that any action was an infringement of the rights of a grantee, a court may take into account the extent (if any) to which that grantee or, as the case requires, the licensee concerned had complied with subsection (1) of this section in respect of any material in respect of which, or in respect of material propagated from which, that infringement occurred.

21 Compulsory licences and sales (1) Any person may at any time after the expiration of 3 years

from the making of a grant, on payment of the prescribed fee request the Commissioner to consider whether or not reason- able quantities of reproductive material of a reasonable quality of the variety concerned are available for purchase by mem- bers of the public at a reasonable price.

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(2) Where a request is made under subsection (1), the Commis- sioner shall give the grantee concerned notice of it and a rea- sonable time to be heard in relation to it, and if, after con- sidering any submissions made to the Commissioner by that grantee within that time, the Commissioner is satisfied there are not available for purchase by members of the public at a reasonable price reasonable quantities of reproductive mater- ial of reasonable quality of the variety concerned, the Com- missioner shall issue to the person who made that request one or both of the following: (a) a compulsory licence for the reproduction and sale of

reproductive material of that variety: (b) an order requiring that grantee to sell to that person re-

productive material of that variety. (3) In considering whether or not there are available to members

of the public at a reasonable price reasonable quantities of reproductive material of reasonable quality of a variety, the Commissioner shall not take into account any reproductive material that is available only subject to the condition that all or any of the produce from that material must be sold or of- fered to a specified person, or to one of a specified group of persons, or to a member of a specified class or description of person.

(4) A licence or order issued under subsection (2) shall be in writ- ing, and sealed with the seal of the Office.

(5) When issuing a licence or order under subsection (2), the Com- missioner shall specify a royalty or payment, or a means of calculating a royalty or payment, payable by the licensee or purchaser concerned to the grantee concerned (being, in the opinion of the Commissioner, a royalty or payment that is, or a means that will produce a royalty or payment that is, in all the circumstances, equitable) and— (a) it shall be a condition of that licence or order that that

licensee or purchaser shall pay to that grantee that roy- alty or payment or a royalty or payment so calculated (as the case requires); and

(b) that licence or order shall be subject to any other terms and conditions the Commissioner thinks fit.

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(6) A licence or order issued under subsection (2) shall have effect according to its tenor as if it were a contract voluntarily entered into by the grantee and the other person concerned.

(7) Subject to the provisions of this Act, the Commissioner may at any time— (a) on the application of any person; and (b) if the Commissioner thinks it appropriate,— limit, vary, extend, or revoke, a licence or order issued under subsection (2).

(8) As soon as is possible after issuing a licence or order under subsection (2), or limiting, varying, extending, or revoking, any such licence or order, the Commissioner shall publish in the Journal brief details of the action taken. Compare: 1973 No 37 s 23

22 Use of denomination Any person who sells reproductive material of— (a) a protected variety; or (b) a variety that was a protected variety until the grant

made in respect of it expired,— shall use its denomination, and shall not associate any trade mark, trade name, or other similar indication with that denom- ination unless that denomination is clearly recognisable.

Part 2 Appeals

23 Rights of appeal (1) Any person affected by a decision of the Commissioner to de-

cline to make a grant may, within 28 days after being given notice of that decision by the Commissioner, appeal against that decision.

(2) Any person affected by a grant may, at any time, appeal against the making of that grant upon the ground that that grant was made in contravention of this Act.

(3) Where the Commissioner cancels a grant under section 13, the grantee may, within 28 days after being given notice of the cancellation by the Commissioner, appeal against that cancel- lation on the ground that it has not been established that, if that

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grant had not already been made, some other person making an application in respect of the variety concerned would, by virtue of section 12, be entitled to a grant in respect of that ap- plication.

(4) Any person affected by any decision of the Commissioner (not being a decision referred to in any of subsections (1) to (3))— (a) relating to an application or the cancellation of a grant;

or (b) imposing any condition in respect of a grant; or (c) declining to modify any aspect of a grant; or (d) refusing to issue a licence or order under section

21(2),— may, within 28 days after being given notice of that decision by the Commissioner, appeal against that decision.

(5) Subject to subsection (7), the owner of a protected variety may appeal against any decision of the Commissioner to issue a licence or order under section 21(2) in respect of that variety, or to extend or vary any such licence or order.

(6) Subject to subsection (7), the person to whom a licence or order was issued under section 21(2) may appeal against any decision of the Commissioner to limit, vary, or revoke that li- cence or order, or to issue it subject to any terms or conditions.

(7) No appeal under subsection (5) or subsection (6) shall lie after the 28th day after the earlier of the following days: (a) the day on which the appellant is served with notice,

or otherwise becomes aware, of the issue, extension, limitation, variation, or revocation, concerned:

(b) the day on which notice of that issue, extension, limita- tion, variation, or revocation was first published in the Journal under section 21(8).

Compare: 1973 No 37 s 26; 1979 No 29 s 12

24 Appeals to be made to District Court Every appeal under section 23 shall be made to a District Court by— (a) filing a notice of appeal in the prescribed form in the

District Court nearest the Office; and (b) serving a copy of that notice on the Commissioner.

Reprinted as at 1 July 2013 Plant Variety Rights Act 1987 Part 2 s 25

25 Assessors (1) If a District Court Judge is satisfied (whether or not on the ap-

plication of any party to that appeal) that any appeal under sec- tion 23 involves the consideration of technical or specialised matters, and that it would be desirable for a person with expert knowledge of those matters to be an assessor in relation to that appeal, the following provisions shall apply: (a) the Judge shall consult the parties to the appeal as to

a suitable person to be an assessor in relation to the appeal:

(b) if the Judge and those parties agree on a suitable person, the Judge shall appoint that person to be an assessor in relation to that appeal:

(c) if the Judge and those parties do not agree on a suitable person, the Judge may appoint to be an assessor in rela- tion to that appeal any person the Judge thinks suitable:

(d) an assessor appointed under this subsection shall sit with the Judge during the appeal, but shall have no power of decision in relation to the appeal.

(2) A District Court Judge may appoint 2 or more assessors under subsection (1) in respect of a single appeal if satisfied that the nature of the technical or specialised matters concerned so warrants.

(3) No appointment of an assessor under subsection (1) shall, in any proceedings, be called into question on the grounds that the occasion for that appointment had not arisen or had ceased.

(4) Every assessor appointed under subsection (1) is entitled to receive— (a) remuneration by way of fees, salary, or allowances, for

that assessor’s services as assessor; and (b) payment of travelling allowances or expenses in respect

of time spent travelling in connection with undertaking services as assessor,—

as if a District Court is a statutory Board within the meaning of the Fees and Travelling Allowances Act 1951.

(5) Subject to subsection (6), a District Court, after hearing an appeal under section 23, may— (a) confirm the decision appealed against; or (b) modify or reverse that decision or any part of it.

Part 2 s 26 Plant Variety Rights Act 1987 Reprinted as at

1 July 2013

(6) Nothing in subsection (5) authorises a District Court to review any decision of the Commissioner, or any part of a decision of the Commissioner, if no appeal has been made against that decision or part.

26 Procedure In dealing with an appeal under section 23,— (a) a District Court may hear all evidence tendered and rep-

resentations made by or on behalf of any party to that appeal that that court considers relevant to that appeal, whether or not that evidence would be otherwise admis- sible in that court:

(b) subject to section 24 and to paragraph (a), the District Courts Rules 2009 shall apply to that appeal:

(c) except as provided in this Act, a District Court shall de- termine its own procedure in relation to the determin- ation of that appeal.

Section 26(b): amended, on 1 November 2009, pursuant to rule 17.1 of the District Courts Rules 2009 (SR 2009/257).

27 Suspension of decision while appeal pending Where any person has appealed against any decision of the Commissioner, the operation of that decision shall be sus- pended until the appeal concerned has been finally disposed of. Compare: 1973 No 37 s 31

Part 3 Plant Variety Rights Office

28 Plant Variety Rights Office (1) The Secretary may from time to time, by notice in theGazette,

appoint a place to be the Plant Variety Rights Office. (2) The Secretary may from time to time, by notice in theGazette,

fix the hours during which the Office shall be open for the transaction of public business under this Act, and may author- ise the closing of the Office for the transaction of public busi- ness on any day.

Reprinted as at 1 July 2013 Plant Variety Rights Act 1987 Part 3 s 30

(3) Where the time prescribed for doing any act or taking any pro- ceeding under this Act expires on a day on which the Office is not open and the act or proceeding cannot therefore be done or taken on that day, that act or proceeding shall be deemed to be in time if it is done or taken on the next day on which the Office is open. Compare: 1973 No 37 s 5 Sections 28(1): amended, on 1 August 1990, by section 2(2) of the Plant Variety Rights Amendment Act 1990 (1990 No 82). Sections 28(2): amended, on 1 August 1990, by section 2(2) of the Plant Variety Rights Amendment Act 1990 (1990 No 82).

29 Seal of Office (1) There shall be a seal of the Office, whose affixing to any docu-

ment shall be authenticated by the signature of the Commis- sioner.

(2) Every court and person acting judicially shall take judicial no- tice of— (a) the seal of the Office; and (b) the appointment and signature of the Commissioner and

every Assistant Commissioner. (3) For the purposes of subsection (2),—

court includes the Supreme Court, the Court of Appeal, the High Court, and any District Court District Court includes— (a) a Family Court; and (b) a Youth Court person acting judicially means any person having in New Zealand by law authority to hear, receive, and examine evi- dence. Compare: 1973 No 37 s 6 Section 29(3): substituted, on 1 August 2007, by section 216 of the Evidence Act 2006 (2006 No 69).

30 Commissioner, Assistant Commissioners, and officers (1) There may from time to time be appointed under the State

Sector Act 1988— (a) a Commissioner of Plant Variety Rights:

Part 3 s 31 Plant Variety Rights Act 1987 Reprinted as at

1 July 2013

(b) 1 or more Assistant Commissioners of Plant Variety Rights, who shall be under the control and direction of the Commissioner.

(2) All persons appointed under subsection (1) shall be officers or employees of the Ministry, and any such appointment under that subsection may be held either separately or in conjunction with any other office in the Ministry.

(3) The Secretary may from time to time designate any officer or employee of the Ministry an officer of the Office; and any person so designated may hold any other office in the Ministry at the same time. Compare: 1973 No 37 s 7 Section 30(1): amended, on 1 April 1988, pursuant to section 88(2) of the State Sector Act 1988 (1988 No 20). Section 30(3): amended, on 1 August 1990, by section 2(2) of the Plant Variety Rights Amendment Act 1990 (1990 No 82).

31 Officers and employees not to acquire interests in grants (1) This subsection applies to every person who is, or during

the previous 12 months was, the Commissioner, an Assistant Commissioner, or a person designated under section 30(3).

(2) No person to whom subsection (1) applies shall apply under this Act for a grant, or acquire any right or interest in any grant directly or indirectly, except under a will or on an intestacy. Compare: 1973 No 37 s 9

32 Advisory and technical committees, and technical advisors

(1) The Secretary may from time to time appoint advisory or tech- nical committees of 1 or more persons as the Secretary thinks fit to advise or assist the Commissioner for such purposes and during such periods as the Secretary thinks desirable.

(2) A person may be appointed to be a member of any committee appointed under this section whether or not that person is an officer or employee of the Ministry or otherwise holds an ap- pointment under the State Sector Act 1988.

(3) Any person appointed under subsection (1) who has an interest directly or indirectly connected with any application or mat- ter to be considered by the committee of which that person is

Reprinted as at 1 July 2013 Plant Variety Rights Act 1987 Part 3 s 33

a member shall, as soon as is possible after the relevant facts have come to that person’s knowledge, disclose the nature of that interest to the Commissioner and, except as otherwise al- lowed by the Commissioner, shall not take part after the dis- closure in any deliberation or decision relating to that applica- tion or matter.

(4) The Secretary may appoint, or may authorise the Commis- sioner to appoint, persons who are not officers or employees of the Ministry as technical advisors to assist the Commissioner in carrying out any tests or trials that the Commissioner con- siders necessary for the purposes of this Act or in assessing the results of any tests or trials (whether carried out by the Com- missioner or not) that the Commissioner considers relevant to those purposes.

(5) The Secretary may, from money appropriated by Parliament for the purpose, pay to the member or members of any com- mittee, or to any technical advisor, appointed under this sec- tion such fees, salary, allowances, and expenses as theMinister from time to time approves. Compare: 1973 No 37 s 8 Section 32(1): amended, on 1 August 1990, by section 2(2) of the Plant Variety Rights Amendment Act 1990 (1990 No 82). Section 32(2): amended, on 1 April 1988, pursuant to section 88(2) of the State Sector Act 1988 (1988 No 20). Section 32(4): amended, on 1 August 1990, by section 2(2) of the Plant Variety Rights Amendment Act 1990 (1990 No 82). Section 32(5): amended, on 1 August 1990, by section 2(2) of the Plant Variety Rights Amendment Act 1990 (1990 No 82).

33 Delegations (1) The Commissioner may from time to time, by writing under

the Commissioner’s hand, generally or particularly or subject to conditions, delegate to such officer or officers or employee or employees of the Ministry for the time being designated under section 30(3) as the Commissioner thinks fit all or any of the powers conferred on the Commissioner by or under this Act or any other Act, including any powers delegated under any other Act, but not including any power to appoint technical advisors under section 32(4) or this present power of delega- tion.

Part 3 s 34 Plant Variety Rights Act 1987 Reprinted as at

1 July 2013

(2) Every delegation under this section shall be revocable, and no such delegation shall prevent the exercise of any power by the Commissioner.

(3) A delegation under this section shall, until revoked, continue in force according to its tenor, notwithstanding the fact that the Commissioner by whom it was made may have ceased to hold office, and shall continue to have effect as if made by the successor in office of that Commissioner; but if the holder of a specified office to whom any such delegation has been made ceases to hold office, it shall expire.

(4) Every person purporting to act pursuant to any delegation under this section shall, in the absence of proof to the contrary, be presumed to be acting in accordance with the terms of that delegation. Compare: 1973 No 37 s 10

34 Plant Variety Rights Journal (1) The Commissioner shall from time to time, as circumstances

require, issue a journal, to be called the Plant Variety Rights Journal.

(2) The Commissioner shall publish in the Journal— (a) notice of every decision of the Commissioner to make

or decline to make a grant, and all prescribed particulars relating to applications and grants; and

(b) any other matters and information relating to plant var- ieties or plant variety rights whose publication appears to the Commissioner to be important or useful.

Compare: 1973 No 37 ss 11, 12

Part 4 Miscellaneous provisions

35 Service of notices, etc (1) Where any notice has to be given or any document has to be

served under this Act, it may be given or served by— (a) delivering it to the person to whom it has to be given or

on whom it has to be served; or (b) leaving it at the usual or last known place of abode or

address for service in New Zealand of that person; or

Reprinted as at 1 July 2013 Plant Variety Rights Act 1987 Part 4 s 37

(c) sending it by post in a registered letter addressed to that person at that person’s usual or last known place of abode or address for service in New Zealand.

(2) Where a notice or document is sent by post in the manner de- scribed in subsection (1)(c), it shall be deemed to have been given or served at the time at which the letter would have been delivered in the ordinary course of post. Compare: 1973 No 37 s 32

36 Fees and refunds (1) Subject to this Act, there shall be paid in respect of grants

and applications, and in respect of other matters relating to grants arising under this Act, the fees (if any) from time to time prescribed; and all such fees shall be paid into the Public Account to the credit of a Crown Bank Account.

(2) Any sum paid to the Commissioner in error or in excess of the sum properly payable may be refunded by the Commissioner, and all money so refunded shall be paid out of a Crown Bank Account without further appropriation than this Act. Compare: 1973 No 37 s 34 Section 36(1): amended, on 25 January 2005, pursuant to section 83(7) of the Public Finance Act 1989 (1989 No 44). Section 36(2): amended, on 25 January 2005, pursuant to section 83(7) of the Public Finance Act 1989 (1989 No 44).

37 Offences and penalties (1) Every person who, in an application or in an attachment to an

application, supplies with intent to deceive any false or mis- leading information commits an offence.

(2) Every person who falsely represents that any person is the owner of a protected variety or that any person has applied for a grant in respect of any variety, commits an offence.

(3) Every person selling material of a variety who falsely repre- sents— (a) that that variety is a protected variety or a variety in

respect of which an application has been made; or (b) that that material is material of some other variety (be-

ing a variety that is a protected variety or a variety in respect of which an application has been made)—

Part 4 s 38 Plant Variety Rights Act 1987 Reprinted as at

1 July 2013

commits an offence. (4) Every person who wilfully or negligently sells reproductive

material in contravention of section 22 commits an offence. (5) Every person who, by using on that person’s place of busi-

ness or on any document issued by that person or otherwise the words “Plant Variety Rights Office” or any other words, suggests that that person’s place of business is or is officially connected with the Office commits an offence.

(6) Every person who acts in contravention of section 31(2) com- mits an offence.

(7) Every person who commits an offence against this Act shall be liable on conviction to a fine not exceeding $1,000.

(8) Amendment(s) incorporated in the Act(s). Compare: 1973 No 37 s 35 Section 37(7): amended, on 1 July 2013, by section 413 of the Criminal Pro- cedure Act 2011 (2011 No 81).

38 Regulations The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following pur- poses: (a) regulating the business of the Office: (b) regulating any matters placed under the direction or

control of the Commissioner by this Act: (c) prescribing the form and manner of applications and the

form of diagrams, photographs, and other documents that may be filed in the Office; and requiring copies to be furnished of any such applications, surrenders, dia- grams, photographs, and documents; and authorising the rectification or amendment of any of them:

(d) prescribing the quantity of seed required to accompany an application; and— (i) different quantities may be prescribed in respect

of applications in respect of varieties of different kinds; and

(ii) quantities may be prescribed in respect of appli- cations in respect of varieties of some kinds and not in respect of applications in respect of var- ieties of other kinds:

Reprinted as at 1 July 2013 Plant Variety Rights Act 1987 Part 4 s 38A

(e) regulating the procedure to be followed in connection with any application or request to the Commissioner or in connection with any proceeding before the Commis- sioner, and authorising the rectification of irregularities of procedure:

(f) providing for the forfeiture of any priority given in re- spect of an application:

(g) prescribing any requirements for the entry of particulars in the register kept under section 14(3), and for correc- tions of recorded details:

(h) prescribing a form for appeals under section 23: (i) authorising the preparation, publication, sale, and ex-

change of copies of diagrams, photographs, and docu- ments in the Office, and of indexes to and abridgments of them:

(j) prescribing themode of publishing anymatters required by this Act to be published:

(k) prescribing fees and charges for anything authorised by this Act:

(l) providing for the testing and treatment of varieties to which applications relate:

(m) prescribing the requirements to be met in selecting the denomination of varieties, and providing for the ap- proval, rejection, or amendment of any denomination by the Commissioner:

(n) giving effect to the terms of any international agreement to which New Zealand is a party:

(o) providing for such matters as are contemplated by or necessary for giving full effect to the provisions of this Act and for its due administration.

Compare: 1973 No 37 s 37

38A Orders in Council as to convention parties For the purpose of giving effect to any international agreement or arrangement to which New Zealand is a party or that applies to NewZealand, the Governor-General may byOrder in Coun- cil declare that any entity specified in the order that is a party to the agreement or arrangement or to which the agreement or arrangement applies (whether a State, part of a State, a terri-

Part 4 s 39 Plant Variety Rights Act 1987 Reprinted as at

1 July 2013

tory for whose international relations a State is responsible, a political union, an international organisation, or any other en- tity) is a convention party for the purposes of this Act. Section 38A: inserted, on 14 October 1999, by section 2(1) of the Plant Variety Rights Amendment Act 1999 (1999 No 122).

39 Transitional provisions (1) The place appointed by the Minister as the Plant Varieties Of-

fice under the Plant Varieties Act 1973 shall be deemed to have been appointed the Office under section 28 on the commence- ment of this Act.

(2) The person who, immediately before the commencement of this Act, was the Registrar of Plant Varieties under the Plant Varieties Act 1973 shall be deemed to have been appointed as the Commissioner on the commencement of this Act.

(3) Every grant of plant selectors’ rights made under the Plant Varieties Act 1973 and in force immediately before the com- mencement of this Act shall remain in force in all respects as if this Act had been in force when it was made.

(4) For the purposes of any action or proceedings taken in relation to a grant subsisting pursuant to subsection (3), or any amend- ment or cancellation of such grant, the provisions of this Act shall apply as if that grant were a grant of plant variety rights under this Act.

(5) Every application for a grant of plant selectors’ rights made under the Plant Varieties Act 1973 and not determined before the commencement of this Act, shall be deemed to be an ap- plication under this Act, and shall be dealt with accordingly.

(6) Every grant of protective direction made under the Plant Varieties Act 1973 and in force immediately before the com- mencement of this Act shall be deemed to be provisional protection given under section 9(1) of this Act, and shall be subject to the provisions of that section.

40 Consequential amendment [Repealed] Section 40: repealed, on 3 July 1990, by section 2(4)(l) of the Ministry of Agri- culture and Fisheries Amendment Act 1990 (1990 No 53).

Reprinted as at 1 July 2013 Plant Variety Rights Act 1987 Part 4 s 41

41 Repeals and revocations [Repealed] Section 41: repealed, on 1 August 1990, by section 2(4) of the Plant Variety Rights Amendment Act 1990 (1990 No 82).

Schedule Plant Variety Rights Act 1987 Reprinted as at

1 July 2013

Schedule s 3 Plants to which Act applies

[Repealed] Schedule: repealed, on 1 July 1994, by section 2(3) of the Plant Variety Rights Amendment Act 1994 (1994 No 52).

Reprinted as at 1 July 2013 Plant Variety Rights Act 1987 Notes

Contents 1 General 2 Status of reprints 3 How reprints are prepared 4 Changes made under section 17C of the Acts and Regulations

Publication Act 1989 5 List of amendments incorporated in this reprint (most recent

first)

Notes

1 General This is a reprint of the Plant Variety Rights Act 1987. The reprint incorporates all the amendments to the Act as at 1 July 2013, as specified in the list of amendments at the end of these notes. Relevant provisions of any amending enactments that contain transitional, savings, or application provisions that cannot be compiled in the reprint are also included, after the principal enactment, in chronological order. For more information, see http://www.pco.parliament.govt.nz/reprints/.

2 Status of reprints Under section 16D of the Acts and Regulations Publication Act 1989, reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by the amendments to that enactment. This presumption applies even though editorial changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in the reprint. This presumption may be rebutted by producing the official volumes of statutes or statutory regulations in which the principal enactment and its amendments are contained.

3 How reprints are prepared A number of editorial conventions are followed in the preparation of reprints. For example, the enacting words are not included in Acts, and

Notes Plant Variety Rights Act 1987 Reprinted as at

1 July 2013

provisions that are repealed or revoked are omitted. For a detailed list of the editorial conventions, see http://www.pco.parliament.govt.nz/editorial-conventions/ or Part 8 of the Tables of New Zealand Acts and Ordinances and Statutory Regulations and Deemed Regulations in Force.

4 Changes made under section 17C of the Acts and Regulations Publication Act 1989 Section 17C of the Acts and Regulations Publication Act 1989 authorises the making of editorial changes in a reprint as set out in sections 17D and 17E of that Act so that, to the extent permitted, the format and style of the reprinted enactment is consistent with current legislative drafting practice. Changes that would alter the effect of the legislation are not permitted. A new format of legislation was introduced on 1 January 2000. Changes to legislative drafting style have also beenmade since 1997, and are ongoing. To the extent permitted by section 17C of the Acts and Regulations Publication Act 1989, all legislation reprinted after 1 January 2000 is in the new format for legislation and reflects current drafting practice at the time of the reprint. In outline, the editorial changes made in reprints under the authority of section 17C of the Acts and Regulations Publication Act 1989 are set out below, and they have been applied, where relevant, in the preparation of this reprint: • omission of unnecessary referential words (such as “of

this section” and “of this Act”) • typeface and type size (Times Roman, generally in 11.5

point) • layout of provisions, including:

• indentation • position of section headings (eg, the number and

heading now appear above the section) • format of definitions (eg, the defined term now appears

in bold type, without quotation marks) • format of dates (eg, a date formerly expressed as “the

1st day of January 1999” is now expressed as “1 January 1999”)

Reprinted as at 1 July 2013 Plant Variety Rights Act 1987 Notes

• position of the date of assent (it now appears on the front page of each Act)

• punctuation (eg, colons are not used after definitions) • Parts numbered with roman numerals are replaced with

arabic numerals, and all cross-references are changed accordingly

• case and appearance of letters and words, including: • format of headings (eg, headings where each

word formerly appeared with an initial capital letter followed by small capital letters are amended so that the heading appears in bold, with only the first word (and any proper nouns) appearing with an initial capital letter)

• small capital letters in section and subsection references are now capital letters

• schedules are renumbered (eg, Schedule 1 replaces First Schedule), and all cross-references are changed accordingly

• running heads (the information that appears at the top of each page)

• format of two-column schedules of consequential amendments, and schedules of repeals (eg, they are rearranged into alphabetical order, rather than chronological).

5 List of amendments incorporated in this reprint (most recent first) Criminal Procedure Act 2011 (2011 No 81): section 413 District Courts Rules 2009 (SR 2009/257): rule 17.1 Evidence Act 2006 (2006 No 69): section 216 Civil Defence Emergency Management Act 2002 (2002 No 33): section 117 Plant Variety Rights Amendment Act 1999 (1999 No 122) Plant Variety Rights Amendment Act 1996 (1996 No 141) Plant Variety Rights Amendment Act 1994 (1994 No 52) Plant Variety Rights Amendment Act 1990 (1990 No 82) Ministry of Agriculture and Fisheries Amendment Act 1990 (1990 No 53): section 2(4)(l) Public Finance Act 1989 (1989 No 44): section 83(7) Plant Variety Rights (Commencement) Order 1988 (SR 1988/111)

Notes Plant Variety Rights Act 1987 Reprinted as at

1 July 2013

State Sector Act 1988 (1988 No 20): section 88(2)

Wellington, New Zealand: Published under the authority of the New Zealand Government—2013

Plant Variety Rights Act 1987 (reprint as at 1 July 2013), New Zealand

Available Materials