Prepared by the Office of Parliamentary Counsel, Canberra
Plant Breeder’s Rights Act 1994
No. 110, 1994 as amended
Compilation start date: 15 April 2013
Includes amendments up to: Act No. 35, 2012
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About this compilation
The compiled Act
This is a compilation of the Plant Breeder’s Rights Act 1994 as amended and in
force on 15 April 2013. It includes any amendment affecting the compiled Act
to that date.
This compilation was prepared on 24 April 2013.
The notes at the end of this compilation (the endnotes) include information
about amending Acts and instruments and the amendment history of each
amended provision.
Uncommenced provisions and amendments
If a provision of the compiled Act is affected by an uncommenced amendment,
the text of the uncommenced amendment is set out in the endnotes.
Application, saving and transitional provisions for amendments
If the operation of an amendment is affected by an application, saving or
transitional provision, the provision is set out in the endnotes.
Modifications
If a provision of the compiled Act is affected by a textual modification that is in
force, the text of the modifying provision is set out in the endnotes.
Provisions ceasing to have effect
If a provision of the compiled Act has expired or otherwise ceased to have
effect in accordance with a provision of the Act, details of the provision are set
out in the endnotes.
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Plant Breeder’s Rights Act 1994 i
Contents
Part 1—Preliminary 1 1 Short title ...........................................................................................1
2 Commencement.................................................................................1
3 Definitions.........................................................................................1
4 Definition of essentially derived varieties .........................................6
5 Definition of breeding .......................................................................6
6 Genetic modification .........................................................................6
8 Approved persons..............................................................................6
9 Act to bind Crown .............................................................................7
9A Application of the Criminal Code .....................................................7
10 Extent of Act .....................................................................................7
Part 2—Plant breeder’s right 8 11 General nature of PBR.......................................................................8
12 Extension of PBR to cover essentially derived varieties....................8
13 Extension of PBR to cover certain dependent plant varieties ............9
14 Extension of PBR to harvested material in certain
circumstances ....................................................................................9
15 Extension of PBR to products obtained from harvested
material in certain circumstances.....................................................10
16 Certain acts done for private, experimental or breeding
purposes do not infringe PBR..........................................................10
17 Conditioning and use of farm saved seed does not infringe
PBR .................................................................................................10
18 Restriction on grantee’s rights in certain circumstances ..................11
19 Reasonable public access to plant varieties covered by PBR ..........12
20 PBR is personal property.................................................................14
21 Registrar must be notified of an assignment of PBR .......................14
22 Duration of PBR..............................................................................15
23 Exhaustion of PBR ..........................................................................16
Part 3—Application for plant breeder’s right 18
Division 1—The making of the application 18
24 Right to apply for PBR ....................................................................18
25 Right to apply for PBR is personal property....................................18
26 Form of application for PBR ...........................................................18
27 Names of new plant varieties...........................................................20
28 Applications to be given priority dates ............................................21
29 Priority dates arising from foreign application ................................22
30 Acceptance or rejection of applications...........................................22
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31 Requests for variation of application ...............................................23
32 Notification of decisions on requests to vary application ................24
33 Withdrawal of application ...............................................................25
Division 2—Dealing with the application after its acceptance 26
34 Detailed description in support of application to be given to
Secretary..........................................................................................26
35 Objection to application for PBR ....................................................27
36 Inspection of applications and objections ........................................28
37 Test growing of plant varieties ........................................................28
38 Characteristics of plant varieties bred or test grown outside
Australia ..........................................................................................31
Division 3—Provisional protection 33
39 Provisional protection......................................................................33
Division 4—Essential derivation 35
40 Applications for declarations of essential derivation .......................35
41 Test growing associated with applications for declarations of
essential derivation ..........................................................................38
Part 4—The grant and revocation of Plant Breeder’s Right 40
Division 1—Grant of Plant Breeder’s Right 40
42 PBR not to be granted in excluded varieties ....................................40
43 Registrable plant varieties ...............................................................40
44 Grant of PBR...................................................................................43
45 Grant of PBR to be exclusive ..........................................................45
46 Grant of PBR to be entered on Register...........................................45
47 Notice of grant of PBR ....................................................................46
48 Effect of grant of PBR.....................................................................46
49 PBR may be subject to conditions ...................................................47
Division 2—Revocation of Plant Breeder’s Right or declaration
of essential derivation 48
50 Revocation of PBR..........................................................................48
51 Entry of particulars of revocation ....................................................50
52 Surrender of PBR ............................................................................50
Part 5—Enforcement of Plant Breeder’s Right 51 53 Infringement of PBR .......................................................................51
54 Actions for infringement .................................................................51
55 Declarations as to non-infringement................................................52
56 Jurisdiction of Court ........................................................................53
57 Innocent infringement .....................................................................53
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Plant Breeder’s Rights Act 1994 iii
Part 6—Administration 55 58 Registrar of Plant Breeder’s Rights .................................................55
59 Delegation .......................................................................................55
60 Certain persons not to acquire PBR.................................................56
61 Register of Plant Varieties ...............................................................57
62 Inspection of Register......................................................................57
Part 7—Plant Breeder’s Rights Advisory Committee 58 63 Establishment of Advisory Committee ............................................58
64 Membership of Advisory Committee ..............................................58
65 Remuneration and allowances .........................................................60
66 Disclosure of interests .....................................................................60
67 Meetings ..........................................................................................60
Part 8—Miscellaneous 62 68 Public notices ..................................................................................62
69 Notices inviting submissions in respect of certain regulations ........62
70 Genetic resource centres ..................................................................63
71 The herbarium .................................................................................63
72 Agents may act in matters relating to PBR......................................63
73 Service of documents ......................................................................63
74 Infringement offences......................................................................64
75 Offences other than infringement offences ......................................64
76 Conduct by directors, servants and agents .......................................65
76A Doing act when PBR office reopens after end of period
otherwise provided for doing act .....................................................66
77 Applications for review ...................................................................67
78 Repeal..............................................................................................69
79 Compensation for acquisition of property .......................................69
80 Regulations......................................................................................69
Part 9—Transitional 71 81 Definitions.......................................................................................71
82 Plant variety rights under old Act to be treated as PBR under
this Act ............................................................................................71
83 Applications for plant variety rights lodged and criminal
proceedings begun before commencing day....................................72
84 Other applications and proceedings under old Act ..........................72
85 Transitional arrangements for membership and functions of
Advisory Committee .......................................................................72
86 Register of Plant Varieties ...............................................................73
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Endnotes 74
Endnote 1—Legislation history 74
Endnote 2—Amendment history 76
Endnote 3—Application, saving and transitional provisions 79
Agriculture, Fisheries and Forestry Legislation Amendment Act
(No. 2) 1999 (No. 170, 1999) ..........................................................79
Agriculture, Fisheries and Forestry Legislation Amendment
(Application of Criminal Code) Act 2001 (No. 115, 2001) .............80
Plant Breeder’s Rights Amendment Act 2002 (No. 148, 2002)......................80
Intellectual Property Laws Amendment Act 2006 (No. 106, 2006) ...............81
Endnote 4—Uncommenced amendments 83
Endnote 5—Misdescribed amendments 84
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Preliminary Part 1
Section 1
Plant Breeder’s Rights Act 1994 1
An Act to provide for the granting of proprietary
rights to breeders of certain new varieties of plants
and fungi, to repeal the Plant Variety Rights Act
1987, and for related purposes
Part 1—Preliminary
1 Short title
This Act may be cited as the Plant Breeder’s Rights Act 1994.
2 Commencement
(1) Subject to subsection (2), the provisions of this Act commence on a
day to be fixed by Proclamation.
(2) If a provision of this Act does not commence under subsection (1)
within the period of 6 months commencing on the day on which
this Act receives the Royal Assent, it commences on the first day
after the end of that period.
3 Definitions
(1) In this Act, unless the contrary intention appears:
AAT means the Administrative Appeals Tribunal.
AAT Act means the Administrative Appeals Tribunal Act 1975.
Advisory Committee means the Plant Breeder’s Rights Advisory
Committee established by section 63.
applicant, in relation to an application, means the person currently
shown in the application as the person making the application.
application means an application under section 24 for PBR in a
plant variety to which this Act extends.
approved form means a form approved by the Secretary for the
purposes of the provision in which the expression appears.
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Part 1 Preliminary
Section 3
2 Plant Breeder’s Rights Act 1994
breeder, in relation to a new plant variety, means:
(a) subject to paragraph (c), if the variety was bred by one
person only—the person; or
(b) subject to paragraph (c), if the variety was bred by 2 or more
persons (whether jointly or independently and whether at the
same time or different times)—each of those persons; or
(c) if the variety was bred:
(i) by a person in the course of performing duties or
functions as a member or employee of a body (whether
incorporate or unincorporate); or
(ii) by 2 or more persons in the course of performing duties
as a member or employee of such a body;
the body of which that person or each of those persons is a
member or employee;
and includes any person or body that is the successor in title to the
person referred to in paragraph (a), to any of the persons referred to
in paragraph (b) or the body referred to in paragraph (c).
conditioning, in relation to propagating material of a plant variety,
means:
(a) cleaning, coating, sorting, packaging or grading of the
material; or
(b) any other similar treatment;
undertaken for the purpose of preparing the material for
propagation or sale.
contracting party means a State, or an intergovernmental
organisation, that is a party to the Convention.
Convention means the International Convention for the Protection
of New Varieties of Plants, done at Geneva on 23 October 1978, as
that treaty is in force for Australia from time to time.
Note: The text of the Convention is set out in Australian Treaty Series 1989 No. 2 ([1989] ATS 2). In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Court means the Federal Court of Australia.
dependent plant variety, in relation to another plant variety in
which a person holds PBR in Australia, means a plant variety over
which PBR in the other plant variety extends under section 13.
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Preliminary Part 1
Section 3
Plant Breeder’s Rights Act 1994 3
essential characteristics, in relation to a plant variety, means
heritable traits that are determined by the expression of one or
more genes, or other heritable determinants, that contribute to the
principal features, performance or value of the variety.
genetic resource centre means a place that the Secretary declares
to be a genetic resource centre under subsection 70(1).
grantee:
(a) in relation to PBR in a plant variety—means the person
currently entered on the Register as the holder of that right in
that variety; and
(b) in relation to PBR in a plant variety declared to be an
essentially derived variety of another plant variety—includes
the person currently entered on the Register as the holder of
that right in relation to that other plant variety.
herbarium means the organisation that the Secretary declares to be
the herbarium under section 71.
hybrid means a plant that is a combination of 2 or more genotypes
of the same or different taxa but excluding a combination
comprising a scion grafted on to a root stock.
indigenous means:
(a) a member of the Aboriginal race of Australia; or
(b) a descendant of the indigenous inhabitants of the Torres
Strait Islands.
member means a member of the Advisory Committee and includes
the Registrar.
PBR, in a plant variety, means the plant breeder’s right specified in
section 11.
PBR, in respect of a plant variety registered in another contracting
party, means a plant breeder’s right corresponding to the right
specified in section 11 conferred under the law of that contracting
party.
PBR office means place of work of the Registrar or a person who
is engaged under the Public Service Act 1999 or otherwise for or
on behalf of the Commonwealth and whose duties involve
providing assistance to the Registrar.
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Part 1 Preliminary
Section 3
4 Plant Breeder’s Rights Act 1994
PBR sub-office means place of work in a single State of the
Registrar or a person who is engaged under the Public Service Act
1999 or otherwise for or on behalf of the Commonwealth and
whose duties involve providing assistance to the Registrar.
plant includes all fungi and algae but does not include bacteria,
bacteroids, mycoplasmas, viruses, viroids and bacteriophages.
plant class, for the purpose of variety denomination, means a class
consisting of all plants:
(a) that belong to a single botanical genus; or
(b) that belong to a group of closely related genera;
that is specified from time to time as a plant class in the Registrar’s
List of Plant Classes maintained under subsection 61(1A).
plant variety means a plant grouping (including a hybrid):
(a) that is contained within a single botanical taxon of the lowest
known rank; and
(b) that can be defined by the expression of the characteristics
resulting from the genotype of each individual within that
plant grouping; and
(c) that can be distinguished from any other plant grouping by
the expression of at least one of those characteristics; and
(d) that can be considered as a functional unit because of its
suitability for being propagated unchanged.
Note: Plant groupings for the purposes of this definition include genetically modified plant groupings. See section 6.
process, in relation to the reproduction of propagating material, of
a plant variety does not include:
(a) the development of a cell or tissue or a plant part into a plant
of that variety; or
(b) the growth of a plant into a larger plant of that variety.
propagating material, in relation to a plant of a particular plant
variety, means any part or product from which, whether alone or in
combination with other parts or products of that plant, another
plant with the same essential characteristics can be produced.
propagation, in relation to a living organism or its components,
means the growth, culture or multiplication of that organism or
component, whether by sexual or asexual means.
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Preliminary Part 1
Section 3
Plant Breeder’s Rights Act 1994 5
Register means the Register of Plant Varieties kept under
section 61.
Registrar means the Registrar of Plant Breeder’s Rights.
reproduction, in relation to propagating material of a plant of a
particular variety, means any process, whereby the number of units
of that propagating material that have the capacity to grow into
independent plants is multiplied.
Secretary means the Secretary of the Department.
sell includes letting on hire and exchanging by way of barter.
successor means:
(a) in relation to a breeder of a plant variety—a person to whom
the right of the breeder to make application for PBR in that
variety has been assigned, or transmitted by will or by
operation of law; and
(b) in relation to a grantee of PBR—a person to whom that right
has been assigned, or transmitted by will or by operation of
law.
synonym, in relation to the name of a plant variety, means a name
that:
(a) is included in an application in addition to the name of the
variety; and
(b) is a name by which the variety will be known or sold in
Australia.
test growing includes a comparative test growing.
Union means the Union for the Protection of New Varieties of
Plants as defined in Article 1 of the Convention.
will includes a codicil.
(2) If a provision of this Act requires or authorises the Secretary or the
Registrar to give written notice of any matter to a particular person
and does not specify the means of giving that notice, that provision
is to be taken, for the purposes of section 29 of the Acts
Interpretation Act 1901 to authorise or require the Secretary or
Registrar to serve the notice on the person personally or by post.
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Part 1 Preliminary
Section 4
6 Plant Breeder’s Rights Act 1994
4 Definition of essentially derived varieties
A plant variety is taken to be an essentially derived variety of
another plant variety if:
(a) it is predominantly derived from that other plant variety; and
(b) it retains the essential characteristics that result from the
genotype or combination of genotypes of that other variety;
and
(c) it does not exhibit any important (as distinct from cosmetic)
features that differentiate it from that other variety.
5 Definition of breeding
(1) A reference in this Act to breeding, in relation to a new plant
variety, includes a reference to the discovery of a plant together
with its use in selective propagation so as to enable the
development of the new plant variety.
(2) If a plant is discovered by one person but used in selective
propagation by another so as to enable the development of a new
plant variety, those persons are together taken to be the joint
breeders of the new plant variety.
6 Genetic modification
For the purposes of this Act, an organism may be treated as
constituting a plant grouping within a single botanical taxon
despite the fact that the genome of the plants in that plant grouping
has been altered by the introduction of genetic material that is not
from plants.
8 Approved persons
(1) In this Act, a reference to an approved person is a reference to a
person who, on the basis of the person’s qualifications and
experience, the Secretary has designated, by instrument in writing,
to be such a person in relation to one of more species of plant.
(2) The Registrar must, from time to time, cause lists of all persons
who are approved persons in relation to particular species of plant
to be published in the Plant Varieties Journal.
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Preliminary Part 1
Section 9
Plant Breeder’s Rights Act 1994 7
9 Act to bind Crown
(1) This Act binds the Crown in right of the Commonwealth, of each
of the States, of the Australian Capital Territory and of the
Northern Territory.
(2) Nothing in this Act renders the Crown, in any of its capacities,
liable to be prosecuted for an offence.
9A Application of the Criminal Code
Chapter 2 (other than Part 2.5) of the Criminal Code applies to all
offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
10 Extent of Act
Nothing in this Act requires or permits the granting of PBR in a
plant variety unless:
(a) if Australia is a party to the Convention—the grant is
appropriate to give effect to the obligations of Australia
under the Convention; or
(b) the breeding of the plant variety constitutes an invention for
the purpose of paragraph 51(xviii) of the Constitution.
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Part 2 Plant breeder’s right
Section 11
8 Plant Breeder’s Rights Act 1994
Part 2—Plant breeder’s right
11 General nature of PBR
Subject to sections 16, 17, 18, 19 and 23, PBR in a plant variety is
the exclusive right, subject to this Act, to do, or to license another
person to do, the following acts in relation to propagating material
of the variety:
(a) produce or reproduce the material;
(b) condition the material for the purpose of propagation;
(c) offer the material for sale;
(d) sell the material;
(e) import the material;
(f) export the material;
(g) stock the material for the purposes described in
paragraph (a), (b), (c), (d), (e) or (f).
Note: In certain circumstances, the right conferred by this section extends to essentially derived varieties (see section 12), certain dependent plant varieties (see section 13), harvested material (see section 14) and products obtained from harvested material (see section 15).
12 Extension of PBR to cover essentially derived varieties
Subject to section 23, if:
(a) PBR is granted to a person in a plant variety (the initial
variety); and
(b) PBR is granted to another person in another plant variety;
and
(c) the Secretary makes a declaration, on application by the
first-mentioned person, that the other plant variety is an
essentially derived variety from the initial variety;
the right granted in the initial variety extends, with effect from the
date of the declaration, to that other plant variety.
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Plant breeder’s right Part 2
Section 13
Plant Breeder’s Rights Act 1994 9
13 Extension of PBR to cover certain dependent plant varieties
Subject to section 23, if PBR is granted in a plant variety (the
initial variety), the right extends to:
(a) any other plant variety that:
(i) is not clearly distinguishable from the initial variety;
and
(ii) is clearly distinguishable from any plant variety that was
a matter of common knowledge at the time of the grant
of PBR in the initial variety; and
(b) any other plant variety that cannot be reproduced except by
the repeated use of the initial variety or of a variety referred
to in paragraph (a);
whether or not that other plant variety was in existence at the time
PBR was granted in the initial variety.
14 Extension of PBR to harvested material in certain circumstances
(1) If:
(a) propagating material of a plant variety covered by PBR is
produced or reproduced without the authorisation of the
grantee; and
(b) the grantee does not have a reasonable opportunity to
exercise the grantee’s right in relation to the propagating
material; and
(c) material is harvested from the propagating material;
section 11 operates as if the harvested material were propagating
material.
(2) Subsection (1) applies to so much of the material harvested by a
farmer from propagating material conditioned and reproduced in
the circumstances set out in subsection 17(1) as is not itself
required by the farmer, for the farmer’s own use, for reproductive
purposes.
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Part 2 Plant breeder’s right
Section 15
10 Plant Breeder’s Rights Act 1994
15 Extension of PBR to products obtained from harvested material
in certain circumstances
If:
(a) propagating material of a plant variety covered by PBR is
produced or reproduced without authorisation of the grantee;
and
(b) the grantee does not have a reasonable opportunity to
exercise the grantee’s rights in relation to the propagating
material; and
(c) material is harvested from plants grown from the propagating
material but the grantee does not have, in the circumstances
set out in section 14, a reasonable opportunity of exercising
the grantee’s rights in the harvested material; and
(d) products are made from the harvested material;
section 11 operates as if those products were propagating material.
16 Certain acts done for private, experimental or breeding purposes
do not infringe PBR
Any act done in relation to a plant variety covered by PBR that is
done:
(a) privately and for non-commercial purposes; or
(b) for experimental purposes; or
(c) for the purpose of breeding other plant varieties;
does not infringe the PBR.
17 Conditioning and use of farm saved seed does not infringe PBR
(1) If:
(a) a person engaged in farming activities legitimately obtains
propagating material of a plant variety covered by PBR either
by purchase or by previous operation of this section, for use
in such activities; and
(b) the plant variety is not included within a taxon declared
under subsection (2) to be a taxon to which this subsection
does not apply; and
(c) the person subsequently harvests further propagating material
from plants grown from that first-mentioned propagating
material;
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Plant breeder’s right Part 2
Section 18
Plant Breeder’s Rights Act 1994 11
the PBR is not infringed by:
(d) the conditioning of so much of that further propagating
material as is required for the person’s use for reproductive
purposes; or
(e) the reproduction of that further propagating material.
(2) The regulations may declare a particular taxon to be a taxon to
which subsection (1) does not apply.
18 Restriction on grantee’s rights in certain circumstances
(1) If:
(a) a person is authorised by or under a law of the
Commonwealth or of a State or Territory to do an act
referred to in a paragraph of section 11 in relation to
propagating material of a plant variety; and
(b) the act is one which (apart from this provision) would require
authorisation from the grantee of PBR in the plant variety;
and
(c) before the person does the act, the person either pays
equitable remuneration to the grantee in respect of the act or
arranges for the payment of such remuneration; and
(d) the person does the act;
then the grantee is not entitled to exercise PBR in the plant variety
against the person in respect of that act.
(2) To avoid doubt, subsection (1) does not limit the operation of
section 17 in relation to the conditioning or reproduction of
propagating material in the circumstances referred to in that
section.
(3) In this section:
equitable remuneration, in relation to an act done in relation to
propagating material of a plant variety, means an amount:
(a) that is agreed between the person proposing to undertake the
act and the grantee of PBR in the plant variety; or
(b) if agreement cannot be reached under paragraph (a)—
determined by a court of competent jurisdiction to constitute
equitable remuneration in relation to the act.
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Part 2 Plant breeder’s right
Section 19
12 Plant Breeder’s Rights Act 1994
19 Reasonable public access to plant varieties covered by PBR
(1) Subject to subsection (11), the grantee of PBR in a plant variety
must take all reasonable steps to ensure reasonable public access to
that plant variety.
(2) Reasonable public access to a plant variety covered by PBR is
taken to be satisfied if propagating material of reasonable quality is
available to the public at reasonable prices, or as gifts to the public,
in sufficient quantities to meet demand.
(3) For the purpose of ensuring reasonable public access to a plant
variety covered by PBR, the Secretary may, on behalf of the
grantee, in accordance with subsections (4) to (10), license a
person whom the Secretary considers appropriate:
(a) to sell propagating material of plants of that variety; or
(b) to produce propagating material of plants of that variety for
sale;
during such period as the Secretary considers appropriate and on
such terms and conditions (including the provision of reasonable
remuneration to the grantee) as the Secretary considers would be
granted by the grantee in the normal course of business.
(4) If, at any time more than 2 years after the grant of PBR in a plant
variety, a person considers:
(a) that the grantee is failing to comply with subsection (1) in
relation to the variety; and
(b) that the failure affects the person’s interests;
the person may make a written request to the Secretary to exercise
a power under subsection (3) in relation to the variety.
(5) A request must:
(a) set out the reasons why the person considers that the grantee
is failing to comply with subsection (1); and
(b) give particulars of the way in which the person considers that
the failure affects the person’s interests; and
(c) give an address of the person for the purposes of notifications
under this section.
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Plant breeder’s right Part 2
Section 19
Plant Breeder’s Rights Act 1994 13
(6) The Secretary must give the grantee:
(a) a copy of the request; and
(b) a written invitation to give the Secretary, within 30 days after
giving the request, a written statement of the reasons the
Secretary should be satisfied that the grantee:
(i) is complying with subsection (1) in relation to the
variety; or
(ii) will so comply within a reasonable time.
(7) The Secretary must, after considering the request and any
statement given by the grantee in response to the invitation under
paragraph (6)(b):
(a) decide whether or not to exercise the power concerned; and
(b) within 30 days after so deciding, give written notice of the
decision to the grantee and to the person making the request.
Note: A decision under this subsection is reviewable by the AAT under section 77.
(8) If the Secretary proposes to exercise a power under subsection (3)
in relation to a plant variety, the Secretary must give public notice:
(a) identifying the variety; and
(b) setting out particulars of any licence the Secretary proposes
to grant; and
(c) inviting persons to apply in writing to the Secretary, within
30 days of the publication of the notice, to be granted that
licence.
(9) The Secretary must not grant any such licence unless:
(a) the Secretary has considered all applications made in
response to the invitation; and
(b) at least one month before granting any such licence, the
Secretary has:
(i) given written notice to each such applicant of the name
of the proposed licensee; and
(ii) given public notice of the name of the proposed
licensee.
(10) If the Secretary:
(a) has granted a person a licence to produce propagating
material of plants of a particular variety; and
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Part 2 Plant breeder’s right
Section 20
14 Plant Breeder’s Rights Act 1994
(b) is satisfied that the person will be unable to obtain such
propagating material at a reasonable price or without charge;
the Secretary may, on behalf of the grantee, make that propagating
material available to the person from material stored at a genetic
resource centre.
Note: A decision under this subsection to make propagating material available is reviewable by the AAT under section 77.
(11) This section does not apply in relation to a plant variety in respect
of which the Secretary certifies, in writing, at the time of the grant
of PBR, that he or she is satisfied that plants of that variety have no
direct use as a consumer product.
Note: A decision under this subsection is reviewable by the AAT under section 77.
20 PBR is personal property
(1) PBR is personal property and, subject to any conditions imposed
under section 49, is capable of assignment, or of transmission by
will or by operation of law.
(2) An assignment of PBR (otherwise than because of the order of a
court) does not have effect unless it is in writing signed by, or on
behalf of, the assignor and assignee.
(3) If a grantee of PBR in a plant variety gives another person a
licence in that right, the licence binds every successor in title to the
interest of that grantee to the same extent as it was binding on that
grantee of the PBR.
Note 1: The Personal Property Securities Act 2009 applies to PBR, and any licence in PBR, as intellectual property (see paragraph (d) of the definition of that phrase in section 10 of that Act). That Act deals with security interests in personal property, including intellectual property and intellectual property licences.
Note 2: Section 106 of the Personal Property Securities Act 2009 corresponds to subsection 20(3) of this section. Section 106 of that Act provides for security agreements in relation to intellectual property licences (or sub-licences) to be binding on successors in title to the licences (or sub-licences).
21 Registrar must be notified of an assignment of PBR
(1) If a person (the claimant) claims that PBR was assigned or
transmitted to the claimant, the claimant must inform the Registrar
ComLaw Authoritative Act C2013C00153
Plant breeder’s right Part 2
Section 22
Plant Breeder’s Rights Act 1994 15
in writing that the claimant has acquired that right, giving
particulars of the manner in which that right was acquired, within
30 days after acquiring that right.
(2) If the Registrar is satisfied that the right has been so assigned or
transmitted, the Registrar must amend the Register by entering the
name of the claimant as the holder of that right.
(3) If the Registrar enters the name of the claimant on the Register as
the holder of PBR, the Registrar must, within 30 days after
entering the name, give written notice to the claimant and to the
person who was the holder before the entry was made, stating that
the entry has been made.
(4) If the Registrar is not satisfied that PBR has been assigned or
transmitted to the claimant, the Registrar must, as soon as possible:
(a) give written notice to the claimant:
(i) telling the claimant that the Registrar is not so satisfied;
and
(ii) setting out the reasons why the Registrar is not so
satisfied; and
(b) give written notice to the person entered on the Register as
the holder of the right:
(i) setting out particulars of the information given by the
claimant; and
(ii) telling the claimant that the Registrar is not so satisfied;
and
(iii) setting out the reasons why the Registrar is not so
satisfied.
(5) A claimant must include, in the notice to the Registrar informing of
the assignment or transmission, an address in Australia for the
service of documents in accordance with this Act.
Note: A decision under this section to amend or to refuse to amend the Register is reviewable by the AAT under section 77.
22 Duration of PBR
(1) Subject to subsections (4) and (5), PBR in a plant variety begins on
the day that the grant of PBR in the variety is made.
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Section 23
16 Plant Breeder’s Rights Act 1994
(2) Subject to subsections (3), (4) and (5), PBR in a plant variety lasts
for:
(a) in the case of trees and vines—25 years; and
(b) for any other variety—20 years.
(3) The regulations may provide that PBR in a plant variety included
within a specified taxon lasts for a longer period than is specified
in subsection (2).
(4) PBR in a plant variety that is a dependent plant variety of another
plant variety begins on:
(a) the day that the grant of PBR in the other plant variety is
made; or
(b) the day that dependent variety comes into existence;
whichever occurs last, and ends when PBR in the other variety
ceases.
(5) If:
(a) PBR is held in a plant variety (the initial variety); and
(b) another plant variety is declared under section 40 to be an
essentially derived variety of the initial variety;
PBR in the initial variety extends to the essentially derived variety
from the day on which that declaration is made until the day on
which PBR in the initial variety ends.
23 Exhaustion of PBR
(1) PBR granted in a plant variety does not extend to any act referred
to in section 11:
(a) in relation to propagating material of the variety; or
(b) in relation to propagating material of any essentially derived
variety or dependent plant variety;
that takes place after the propagating material has been sold by the
grantee or with the grantee’s consent unless that act:
(c) involves further production or reproduction of the material;
or
(d) involves the export of the material:
(i) to a country that does not provide PBR in relation to the
variety; and
(ii) for a purpose other than final consumption.
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Section 23
Plant Breeder’s Rights Act 1994 17
(2) If:
(a) a plant variety is declared to be an essentially derived variety
of another plant variety (the initial variety); and
(b) PBR in the essentially derived variety is held both by the
grantee of PBR in the essentially derived variety and by the
grantee of PBR in the initial variety;
the reference in subsection (1) to propagating material sold by the
grantee or with the grantee’s consent is a reference to propagating
material sold by, or with the consent of, both of the grantees
referred to in paragraph (b).
(3) If, under subsection 18(1), equitable remuneration is paid, or
arranged to be paid, to the grantee of PBR in a plant variety in
respect of an act (the first act) in relation to propagating material of
that variety before the person does the act, PBR in that variety does
not extend to any later act (the later act) referred to in section 11 in
relation to that propagating material unless the later act:
(a) involves the further production or reproduction of that
propagating material; or
(b) involves the export of the material:
(i) to a country that does not provide PBR in relation to the
variety; and
(ii) for a purpose other than final consumption.
(4) To avoid doubt, nothing in subsection (1) or (3) prevents the
exercise of the rights of the grantee of PBR in a plant variety in
relation to any propagating material of that variety that is obtained
by reproduction of the propagating material to which that
subsection applies.
ComLaw Authoritative Act C2013C00153
Part 3 Application for plant breeder’s right
Division 1 The making of the application
Section 24
18 Plant Breeder’s Rights Act 1994
Part 3—Application for plant breeder’s right
Division 1—The making of the application
24 Right to apply for PBR
(1) A breeder of a plant variety may make application to the Secretary
for the grant of a PBR in the variety.
(2) The breeder can make the application whether or not:
(a) the breeder is an Australian citizen; and
(b) the breeder is resident in Australia; and
(c) the variety was bred in Australia.
(3) Subject to subsection (4), if 2 or more persons bred a plant variety
jointly, those persons or some of them may make a joint
application for that right.
(4) If 2 or more persons bred a plant variety jointly, one of those
persons is not entitled to apply for PBR in the variety otherwise
than jointly with, or with the consent in writing of, each other of
those persons.
25 Right to apply for PBR is personal property
(1) The right of a breeder of a plant variety to apply for PBR is
personal property and is capable of assignment and of transmission
by will or by operation of law.
(2) An assignment of a right to apply for PBR must be in writing
signed by or on behalf of the assignor.
Note: The Personal Property Securities Act 2009 deals with security interests in personal property, including a right to apply for PBR.
26 Form of application for PBR
(1) An application for PBR in a plant variety must:
(a) be in writing; and
(b) be in an approved form; and
(c) be lodged in a manner set out in the approved form.
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The making of the application Division 1
Section 26
Plant Breeder’s Rights Act 1994 19
(2) The application must contain:
(a) the name and address of the applicant; and
(b) if the applicant is using an agent to make the application on
the applicant’s behalf—the name and address of the agent;
and
(c) if the applicant is the breeder of the variety—a statement of
that effect; and
(d) if the applicant is not the breeder of the variety—the name
and address of the breeder and particulars of the assignment,
or transmission by will or by operation of law, of the right to
make the application; and
(e) a brief description, or a brief description and photograph, of a
plant of the variety sufficient to establish a prima facie case
that the variety is distinct from other varieties of common
knowledge; and
(f) the name of the variety, having regard to the requirements of
section 27, and any proposed synonym for that name; and
(g) the name of the location at which the variety was bred; and
(ga) the name of each variety (the parent variety) used in the
breeding program including, in respect of each parent
variety:
(i) particulars of the names (including synonyms) by which
the parent variety is known or sold in Australia; and
(ii) particulars of any PBR granted in Australia or in any
other contracting party; and
(gb) a brief description of the manner in which the variety was
bred; and
(h) particulars of any application for, or grant of, rights of any
kind in the variety in any other country; and
(i) the name of an approved person who:
(i) will verify the particulars in the application; and
(ii) will supervise any test growing or further test growing
of the variety required under section 37; and
(iii) will verify a detailed description of the variety when
such a description is supplied to the Secretary;
(j) such other particulars (if any) as are required by the approved
form.
Note: The information given under paragraph (ga) is not available to the public under section 36.
ComLaw Authoritative Act C2013C00153
Part 3 Application for plant breeder’s right
Division 1 The making of the application
Section 27
20 Plant Breeder’s Rights Act 1994
(3) If an applicant is resident overseas, the applicant must, unless the
applicant has appointed an agent resident in Australia to act on the
applicant’s behalf in the application, specify, in addition to any
address overseas, a postal address in Australia for the service of
notices on the applicant.
(4) An applicant must, before, or at the time of, lodging an application
under this section, pay to the Commonwealth such application fee
(if any) as is prescribed.
27 Names of new plant varieties
(1) If PBR has not been granted in another contracting party in a plant
variety before an application for that right in that variety is made in
Australia, the name set out in the application must comply with
subsections (4), (5), (6) and (7).
(2) If, before making an application in Australia for PBR in a plant
variety, PBR has been granted in that variety in another contracting
party:
(a) the name of the variety set out in the Australian application
must be the name under which PBR was first granted in
another contracting party; but
(b) there may, and, if the name referred to in paragraph (a) does
not comply with subsections (4), (5), (6) and (7) there must,
also be included in the application a synonym, additional to
the name of the variety.
(3) The synonym must be a name determined in accordance with
subsections (4), (5), (6) and (7) as if the variety had not been the
subject of a grant of PBR in another contracting party.
(3A) If, before making an application in Australia for PBR in a plant
variety, PBR has not been granted in that variety in another
contracting party, a synonym may also be included in the
application.
(4) A name (including a synonym), in respect of a plant variety, must
be a word or words (whether invented or not) with or without the
addition of either or both of the following:
(a) a letter or letters that do not constitute a word;
(b) a figure or figures.
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Application for plant breeder’s right Part 3
The making of the application Division 1
Section 28
Plant Breeder’s Rights Act 1994 21
(5) A name (including a synonym), in respect of a plant variety must
not:
(a) be likely to deceive or cause confusion, including confusion
with the name of another plant variety of the same plant
class; or
(b) be contrary to law; or
(c) contain scandalous or offensive matter; or
(d) be prohibited by regulations in force at the time of the
application; or
(e) be or include a trade mark that is registered, or whose
registration is being sought, under the Trade Marks Act 1995,
in respect of live plants, plant cells and plant tissues.
(6) A name (including a synonym), in respect of a plant variety must
comply with the International Code of Botanical Nomenclature and
subsidiary codes.
(7) A name (including a synonym), in respect of a plant variety must
not consist of, or include:
(a) the name of a natural person living at the time of the
application unless the person has given written consent to the
name of the variety; or
(b) the name of a natural person who died within the period of 10
years before the application unless the legal personal
representative of the person has given written consent to the
name of the variety; or
(c) the name of a corporation or other organisation, unless the
corporation or other organisation has given its written
consent to the name of the variety.
28 Applications to be given priority dates
(1) The Secretary must ensure that each application for PBR is given a
priority date.
(2) The priority date is, unless section 29 applies in relation to the
application, the date on which the application was lodged with the
Secretary or, if another date is determined under the regulations for
the application, the date determined.
ComLaw Authoritative Act C2013C00153
Part 3 Application for plant breeder’s right
Division 1 The making of the application
Section 29
22 Plant Breeder’s Rights Act 1994
(3) If 2 or more applications are made for PBR in the same plant
variety, the Secretary must first consider the application having the
earlier priority date.
29 Priority dates arising from foreign application
(1) If:
(a) a person has lodged an application for PBR in a plant variety
in one or more contracting parties other than Australia; and
(b) within a period of 12 months after the date that the earliest of
those applications (the foreign application) was lodged, the
person lodges an application in Australia (the local
application) for PBR in the variety; and
(c) the local application is accompanied with a claim to have the
date of lodgment of the foreign application treated as the
priority date for the purposes of the local application; and
(d) the local application is accepted;
the person is entitled to have the date of lodgment of the foreign
application treated as the priority date for the purposes of the local
application, subject to subsections (3) and (4).
(3) The entitlement of the person to have the date of lodgment of the
foreign application treated as the priority date for the purposes of
the local application is conditional on the person lodging with the
Secretary, within 3 months of making the local application, a copy
of the documents that constituted the foreign application, certified
by the Authority that received the foreign application to be a true
copy of the documents.
(4) The entitlement of the person to have the date of lodgment of the
foreign application treated as the priority date for the purposes of
the local application is conditional on the person providing to the
Secretary, within a period of 3 years after the making of the foreign
application, such further particulars in relation to the plant variety
as are required to complete the consideration of the local
application.
30 Acceptance or rejection of applications
(1) The Secretary must, as soon as practicable after an application for
PBR is lodged in a plant variety, decide whether to accept or reject
the application.
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Application for plant breeder’s right Part 3
The making of the application Division 1
Section 31
Plant Breeder’s Rights Act 1994 23
(2) If the Secretary is satisfied that:
(a) no other application has, or, if the application were to meet
the requirements of paragraphs (b) and (c), would have, an
earlier priority date in the variety; and
(b) the application complies with the requirements of section 26;
and
(c) the application establishes a prima facie case for treating the
plant variety as distinct from other varieties;
the Secretary must accept the application.
(3) If the Secretary is not satisfied of all of the matters referred to in
subsection (2), the Secretary must reject the application.
(4) If the Secretary decides to accept the application, the Secretary
must:
(a) give written notice to the applicant telling the applicant that
the application has been accepted; and
(b) as soon as possible after notifying the applicant—give public
notice of the acceptance of the application.
(5) If the Secretary decides to reject an application, the Secretary must:
(a) give written notice to the applicant telling the applicant of the
rejection and setting out the reasons for the rejection; and
(b) as soon as possible after notifying the applicant—give public
notice of the rejection of the application.
Note: A decision under this section to accept or reject an application is reviewable by the AAT under section 77.
31 Requests for variation of application
(1) If:
(a) after an application for PBR in a plant variety has been
accepted; but
(b) before concluding the examination of that application
(including the subsequent detailed description of that variety)
and of any objection to the application;
the right of the applicant to apply for PBR in a particular plant
variety is assigned to, or has been transmitted by will or operation
of law to, another person, that other person may request the
Secretary, in writing, to vary the application so that that other
person is shown as the applicant.
ComLaw Authoritative Act C2013C00153
Part 3 Application for plant breeder’s right
Division 1 The making of the application
Section 32
24 Plant Breeder’s Rights Act 1994
(2) If the Secretary is satisfied that the right to apply for PBR in a
particular plant variety has been assigned to, or has been
transmitted by will or operation of law to, to a particular person,
the Secretary must vary the application so that that person is shown
as the applicant.
(3) A request by a person under subsection (1) must give an address in
Australia for the service of notices on the person for the purposes
of this Act.
(4) If the Secretary complies with a request under subsection (1) and
the address for the service of notices that is given in connection
with that request is different from the address contained in the
application as the address for service of documents on the
applicant, the Secretary must vary the application so that the
address so given is shown as the address for service of documents
on the applicant.
(5) If:
(a) after an application for PBR in a plant variety has been
accepted; but
(b) before concluding the examination of that application
(including the subsequent detailed description of that variety)
and of any objection to the application;
the applicant requests the Secretary, in writing, to vary the
application in any other respect other than that referred to in
subsection (1), the Secretary may, in his or her discretion, vary the
application in accordance with the request.
(6) Despite the previous provisions of this section, the Secretary is not
obliged or permitted to vary an application in response to a request
under this section unless the person making the application for the
variation has paid to the Commonwealth the application variation
fee that is prescribed for the purposes of this section.
Note: A decision under this section to vary or to refuse to vary an application is reviewable by the AAT under section 77.
32 Notification of decisions on requests to vary application
(1) If the Secretary varies an application in accordance with a request
under subsection 31(1) or (5), the Secretary must, as soon as
practicable, give written notice to the person making the request
telling the person that the application has been so varied.
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Application for plant breeder’s right Part 3
The making of the application Division 1
Section 33
Plant Breeder’s Rights Act 1994 25
(2) If the Secretary rejects a request under subsection 31(1) or (5), the
Secretary must, as soon as practicable, give written notice to the
person making the request:
(a) telling the person that the request has been rejected; and
(b) setting out the reasons for the rejection.
(3) If the Secretary rejects a request under subsection 31(1), the
Secretary must, as soon as practicable, also give written notice to
the applicant:
(a) setting out particulars of the request; and
(b) telling the applicant that the request has been rejected; and
(c) setting out the reasons for the rejection.
(4) If the Secretary varies an application in accordance with a request
under subsection 31(1), the Secretary must, as soon as practicable,
also give written notice of particulars of the variation to the person
who was the applicant before the variation was made.
(5) If an application:
(a) is varied because of a request under subsection 31(1); or
(b) is varied because of a request under subsection 31(5) in a
significant respect;
the Secretary must, as soon as practicable, give public notice of
particulars of the variation.
33 Withdrawal of application
(1) An application may be withdrawn by the applicant at any time.
(2) If an application is withdrawn after public notice of acceptance of
the application is given, the Secretary must, as soon as practicable,
give public notice of the withdrawal.
ComLaw Authoritative Act C2013C00153
Part 3 Application for plant breeder’s right
Division 2 Dealing with the application after its acceptance
Section 34
26 Plant Breeder’s Rights Act 1994
Division 2—Dealing with the application after its
acceptance
34 Detailed description in support of application to be given to
Secretary
(1) As soon as practicable after, but not later than 12 months after, an
application has been accepted, or within such further period as the
Secretary allows for the purpose, the applicant must, if the
applicant has not already done so, give the Secretary a detailed
description of the plant variety to which the application relates.
Note: A decision under this subsection to refuse to extend the 12 months period is reviewable by the AAT under section 77.
(2) If the applicant fails to give the Secretary the detailed description
required under this section within the required period, the
application is taken to have been withdrawn.
(3) The detailed description must:
(a) be in writing; and
(b) be in an approved form; and
(c) be lodged with the Secretary in a manner set out in the
approved form.
(4) The detailed description must contain:
(a) particulars of the characteristics that distinguish the variety
from other plant varieties the existence of which is a matter
of common knowledge; and
(b) particulars of:
(i) any test growing carried out, including a test growing
carried out as required under section 37, to establish that
the variety is distinct, uniform and stable; and
(ii) any test growing carried out as required under
section 41; and
(c) if the variety was bred outside Australia—particulars of any
test growing outside Australia that tend to establish that the
variety will, if grown in Australia, be distinct, uniform and
stable; and
(d) such other particulars (if any) as are required by the approved
form;
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Dealing with the application after its acceptance Division 2
Section 35
Plant Breeder’s Rights Act 1994 27
and must be accompanied by a certificate, in the approved form,
verifying the particulars of the detailed description, completed by
the approved person nominated in the application as the approved
person in relation to that application.
(5) The Secretary must, as soon as practicable after receiving a
detailed description of a plant variety to which an application for
PBR relates, give public notice of that description.
(6) The applicant must:
(a) unless paragraph (b) applies—within 12 months after the
application has been accepted; and
(b) if the detailed description has been given to the Secretary
before the end of that period—at the time when the
description was given;
pay to the Commonwealth such examination fee as is prescribed.
(7) Subsection (6) does not apply to an applicant if the plant variety to
which the application relates is in quarantine under the Quarantine
Act 1908 when the examination fee becomes payable. Instead, the
applicant must pay the prescribed examination fee within 12
months after the plant variety is released from quarantine.
35 Objection to application for PBR
(1) Any person who considers, in relation to an application for PBR in
a plant variety that has been accepted:
(a) that his or her commercial interests would be affected by the
grant of that PBR to the applicant; and
(b) that the Secretary cannot be satisfied, in relation to that
application, of a matter referred to in a paragraph of
subsection 26(2) or in subparagraph 44(1)(b)(i), (ii), (iii),
(iv), (v), (vi), (vii) or (viii);
may lodge a written objection to the grant of PBR with the
Secretary at any time after the giving of that public notice of
acceptance of the application and before the end of the period of 6
months starting with the public notice of that detailed description.
(2) An objection must set out:
(a) particulars of the manner in which the person considers his or
her commercial interests would be affected; and
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Part 3 Application for plant breeder’s right
Division 2 Dealing with the application after its acceptance
Section 36
28 Plant Breeder’s Rights Act 1994
(b) the reasons why the person considers that the Secretary
cannot be satisfied of a matter referred to in paragraph (1)(b).
(2A) An objection is of no effect unless it is accompanied by the
prescribed fee.
(3) The Registrar must give a copy of the objection to the applicant.
36 Inspection of applications and objections
(1) A person may, at any reasonable time, inspect an application for
PBR in a plant variety (including any detailed description of the
plant variety given in support of the application) or an objection
lodged in respect of that application (including that detailed
description).
(2) A person is entitled, on payment of such fee as is prescribed, to be
given a copy of an application for PBR in a plant variety, of an
objection to such an application, or of a detailed description of the
plant variety.
(3) However, this section does not entitle a person to inspect the part
of the application that contains the information referred to in
paragraph 26(2)(ga) or to have a copy of the part of the application
containing that information, unless the person is:
(a) the applicant; or
(b) the applicant’s authorised agent; or
(c) the Minister; or
(d) the Secretary; or
(e) a person who is required to inspect the part of the application
in the course of performing his or her duties in accordance
with this Act; or
(f) a person prescribed for the purposes of this subsection.
37 Test growing of plant varieties
(1) If, in dealing with:
(a) an application for PBR that has been accepted; or
(b) an objection to such an application for PBR; or
(c) a request for revocation of PBR;
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Dealing with the application after its acceptance Division 2
Section 37
Plant Breeder’s Rights Act 1994 29
the Secretary decides that there should be a test growing or a
further test growing of the variety to which the application,
objection or request relates, the Secretary:
(d) must give written notice of that decision:
(i) to the person who made the application, objection or
request; and
(ii) in the case of an objection to an application for PBR—
also to the applicant; and
(iii) in the case of a request for revocation of PBR—also to
the grantee; and
(e) may also give written notice of that decision to any other
person whom the Secretary considers appropriate if the test
growing or further test growing is a comparative test
growing.
Note: A decision under this subsection to require a test growing is reviewable by the AAT under section 77.
(2) The notice, in addition to telling the person of the Secretary’s
decision:
(a) must specify the purpose of the test growing; and
(b) may require the person:
(i) to supply the Secretary with sufficient plants or
sufficient propagating material of plants of the variety,
and with any necessary information, to enable the
Secretary to arrange a test growing; or
(ii) to make arrangements for an approved person to
supervise the test growing, to supply the approved
person with sufficient plants or propagating material to
enable the test growing, to give the Secretary a copy of
the records of observations made during the test
growing and to certify the records of observations so
provided;
whichever the Secretary considers appropriate.
(2A) A person to whom a notice is sent under this section must comply
with the requirements of the notice:
(a) in the case of trees and vines, or propagating materials of
trees and vines—within 2 years from the date of service of
the notice; and
(b) in the case of other species of plant or propagating materials
of other species of plant—within 12 months from that date.
ComLaw Authoritative Act C2013C00153
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Division 2 Dealing with the application after its acceptance
Section 37
30 Plant Breeder’s Rights Act 1994
(2B) If a person, without reasonable excuse, fails to comply with the
requirements of a notice issued under this section, the Secretary
may:
(a) if the person is the grantee—revoke PBR, in the plant variety
to which the notice relates, under section 50; or
(b) if the person made an application, objection or request—
decide not to further proceed with the application, objection
or request for revocation.
Note: A decision not to further proceed with the application, objection or request for revocation is reviewable by the AAT under section 77.
(3) If a notice under this section contains the requirement referred to in
subparagraph (2)(b)(i) and the applicant complies with the request,
the Secretary must arrange to have the variety concerned test
grown.
(4) After completion of a test growing arranged by the Secretary, any
propagating material of the variety used in, or resulting from, the
test growing, that is capable of being transported must be delivered
to the person by whom propagating material of that variety was
supplied for the purposes of the test growing.
(5) All of the costs associated with a test growing must be paid:
(a) if it is conducted to deal with an application for PBR—by the
applicant for PBR; or
(b) if it is conducted to deal with an objection to an application
for PBR:
(i) by the applicant for PBR, where the test growing shows
that there are valid reasons for the objection; or
(ii) by the objector, in any other case; or
(c) if it is conducted to deal with a request for revocation of
PBR:
(i) by the grantee, where the test growing shows that there
are valid reasons for the request; or
(ii) by the person making the request, in any other case.
(6) If a contracting party, or a national or an organisation of a
contracting party, requests the Secretary to conduct in Australia a
test growing of a plant variety, the Secretary may decide to conduct
the test growing as so requested.
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Plant Breeder’s Rights Act 1994 31
(7) If the Secretary decides to conduct a test growing under
subsection (6), subsections (1), (2), (3), (4) and (5) apply to such
test growing as if:
(a) the person or organisation requesting the test growing under
subsection (6) was an applicant for PBR; and
(b) the test growing had been decided on in relation to that
application.
38 Characteristics of plant varieties bred or test grown outside
Australia
(1) If:
(a) a plant variety (the subject variety):
(i) was bred outside Australia; or
(ii) was bred in Australia but, before an application for PBR
was made in Australia, an application for PBR was
made in a contracting party other than Australia; and
(b) an application under this Act for PBR in the variety has been
accepted;
the variety is not to be taken to have a particular characteristic
unless subsection (2), (3), (4) or (5) applies to the variety.
(2) This subsection applies to the subject variety if a test growing in
Australia has demonstrated that the variety has the particular
characteristic.
(3) This subsection applies to the subject variety if:
(a) a test growing of the variety has been carried out outside
Australia; and
(b) that test growing has demonstrated that the variety has the
particular characteristic; and
(c) under an agreement between Australia and the country in
which the test growing was carried out, Australia is required
to accept that the variety has that particular characteristic.
(4) This subsection applies to the subject variety if the Secretary is
satisfied that:
(a) a test growing of the variety carried out outside Australia has
demonstrated that the variety has the particular characteristic;
and
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32 Plant Breeder’s Rights Act 1994
(b) that test growing of the variety is equivalent to a test growing
of the variety in Australia.
(5) This subsection applies to the subject variety if the Secretary is
satisfied that:
(a) a test growing of the variety carried out outside Australia has
demonstrated that the variety has the particular characteristic;
and
(b) any test growing of the variety carried out in Australia would
probably demonstrate that the variety has that characteristic;
and
(c) if a test growing of the variety in Australia sufficient to
demonstrate whether the variety has that characteristic were
to be carried out, it would take longer than 2 years.
Note: A decision to the effect that the Secretary is, or is not, satisfied of the matters referred to in subsection (4) or (5) is reviewable by the AAT under section 77.
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Provisional protection Division 3
Section 39
Plant Breeder’s Rights Act 1994 33
Division 3—Provisional protection
39 Provisional protection
(1) When an application for PBR in a plant variety is accepted, the
applicant is taken to be the grantee of that right for the purposes of
Part 5 from the day the application is accepted until:
(a) the application is disposed of; or
(b) if the Secretary gives the applicant a notice under
subsection (2)—the notice is disposed of;
whichever occurs first.
(2) If the Secretary is satisfied in relation to an application for PBR in
a plant variety, that:
(a) PBR will not be granted or is unlikely to be granted to the
applicant; or
(aa) a decision has been taken under paragraph 37(2B)(b) not to
proceed with the application; or
(ab) the application has been withdrawn; or
(b) the applicant has given an undertaking to a person (whether
or not for consideration) not to commence proceedings for
infringement of the right of which the applicant is deemed to
be the grantee; or
(c) at least 12 months have elapsed since the publication of the
detailed description that was given to the Secretary under
subsection 34(1);
the Secretary may notify the applicant, in writing, that this section
will cease to apply to that variety on a day specified in the notice
unless, before that time the applicant has made a submission to the
Secretary providing reasons why this section should not cease to
apply.
Note: A decision under this subsection to notify an applicant is reviewable by the AAT under section 77.
(3) For the purposes of paragraph (1)(b) a notice referred to in that
paragraph is not taken to be disposed of until:
(a) the end of the period within which application may be made
to the AAT for a review of the giving of the notice; or
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34 Plant Breeder’s Rights Act 1994
(b) if such an application is made to the AAT—the application is
withdrawn or finally determined, whether by the AAT or a
court.
(4) As soon as practicable after a person ceases to be taken to be the
grantee of PBR under this section, the Secretary must give public
notice that the person has ceased to be so taken.
(5) Nothing in this section affects the powers of the Federal Court
under subsection 44A(2) of the AAT Act where an appeal is begun
in that Court from a decision of the AAT.
(6) A person who is taken to be the grantee of PBR in a plant variety is
not entitled to begin an action or proceeding for an infringement of
that right occurring during the period when the person is so taken
unless and until that right is finally granted to the person under
section 44.
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Essential derivation Division 4
Section 40
Plant Breeder’s Rights Act 1994 35
Division 4—Essential derivation
40 Applications for declarations of essential derivation
(1) If:
(a) a person is the grantee of PBR in a particular plant variety—
(the initial variety); and
(b) another person is the grantee of, or has applied for, PBR in
another plant variety (the second variety); and
(c) the grantee of PBR in the initial variety is satisfied that the
second variety is, within the meaning of section 4, an
essentially derived variety of the initial variety; and
(d) the initial variety has not itself been declared to be an
essentially derived variety of another variety in which PBR
has been granted;
the grantee of PBR in the initial variety may make written
application to the Secretary for a declaration that the second variety
is so derived.
(2) Nothing in this section implies that a person who is the grantee of
PBR in the initial variety may not, in relation to an application by
another person for PBR in the second variety that has been
accepted but not finally determined:
(a) make an objection, under section 35, to the granting of PBR
in the second variety; and
(b) in the alternative, if PBR is granted to another person in the
second variety—apply under subsection (1) for a declaration
that the second variety is essentially derived from the initial
variety.
(3) If the second variety:
(a) is the subject of an application for PBR; and
(b) is also the subject of an application for a declaration of
essential derivation;
then, unless and until the Secretary decides to grant the application
for PBR:
(c) the Secretary must not make the declaration of essential
derivation; but
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Section 40
36 Plant Breeder’s Rights Act 1994
(d) the Secretary may, in his or her discretion:
(i) examine both the application for PBR and the
application for a declaration of essential derivation at
the same time; and
(ii) for the purpose only of examining the application for a
declaration of essential derivation—treat the applicant
for PBR as the grantee of PBR in the variety.
(4) An application for a declaration of essential derivation must:
(a) be in writing; and
(b) be in an approved form; and
(c) be lodged with the Secretary in a manner set out in the
approved form; and
(d) be accompanied by the prescribed fee in respect of the
application.
(5) An application must contain such information relevant to
establishing a prima facie case that the second variety is an
essentially derived variety of the initial variety as is required by the
form.
(6) If the initial variety has itself been declared to be essentially
derived from another variety, the Secretary must refuse to declare
the second variety essentially derived from:
(a) the initial variety; and
(b) inform the applicant for the declaration in writing, to that
effect, and give the applicant reasons for the decision.
(7) If the initial variety has not been so declared, the Secretary must
determine, on the basis of the application, whether the Secretary is
satisfied that there is a prima facie case that the second variety is
an essentially derived variety of the initial variety.
(8) If the Secretary is satisfied of that prima facie case, the Secretary
must:
(a) inform the applicant and the grantee of PBR in the second
variety that the Secretary is so satisfied; and
(b) inform the grantee of PBR in the second variety that, unless
the grantee establishes, within 30 days after being so
informed or such longer period as the Secretary allows, that
the second variety is not an essentially derived variety of the
initial variety, the Secretary will, at the end of that period,
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Plant Breeder’s Rights Act 1994 37
declare the second variety to be such an essentially derived
variety.
Note: A decision under this subsection to refuse to extend the period of 30 days is reviewable by the AAT under section 77.
(9) If the Secretary is not satisfied of that prima facie case, the
Secretary must inform the applicant, in writing, to that effect, and
give the applicant reasons for the decision.
(10) If, after considering:
(a) the information presented by the grantee of PBR in the
second variety; and
(b) any information obtained from a test growing conducted in
accordance with section 41; and
(c) any other relevant information obtained by the Secretary;
the Secretary is not satisfied that the grantee of PBR in the second
variety has rebutted the prima facie case, the Secretary must:
(d) declare, in writing, that the second variety is an essentially
derived variety of the initial variety; and
(e) by notice in writing given to the grantee of PBR in the initial
variety, tell that grantee of the declaration; and
(f) by notice in writing given to the grantee of PBR in the
second variety, tell that grantee of the declaration and set out
the reasons for not being satisfied that the prima facie case
has been rebutted.
(11) If, after considering the information referred to in
paragraph (10)(a), (b) or (c), the Secretary is satisfied that the
grantee of PBR in the second variety has rebutted the prima facie
case, the Secretary must:
(a) by notice in writing given to the grantee of PBR in the initial
variety, tell that grantee that he or she is so satisfied and set
out the reasons for being so satisfied; and
(b) by notice in writing given to the grantee of PBR in the
second variety, tell that grantee that he or she is so satisfied.
(12) While a declaration that the second variety is essentially derived
from the initial variety remains in force, section 19 applies in
relation to the second variety as if:
(a) the references in that section to the grantee, in relation to that
variety were references both to the person holding PBR in
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38 Plant Breeder’s Rights Act 1994
that variety and to the person holding PBR in the initial
variety; and
(b) the reference in subsection 19(4) to 2 years after the grant of
PBR were a reference to 2 years after the grant of PBR in the
second variety whether or not the declaration of essential
derivation was made at the same time or a later time; and
(c) a failure by the other person holding PBR in the initial
variety or the person holding PBR in the second variety to
co-operate in making the second variety available to the
public in accordance with the requirements of
subsection 19(1) was a failure of the grantee to comply with
the requirements of that subsection.
Note: A decision under this section to declare, or not to declare, a plant variety essentially derived is reviewable by the AAT under section 77.
41 Test growing associated with applications for declarations of
essential derivation
(1) If:
(a) the grantee of PBR in a plant variety (the initial variety)
applies for a declaration that another variety (the second
variety) is an essentially derived variety of the initial variety;
and
(b) in the course of that application the grantee of PBR in the
initial variety establishes a prima facie case that the second
variety is essentially derived; and
(c) on the basis of information supplied by the grantees of PBR
in the initial variety and in the second variety, the Secretary
comes to the view that a test growing or further test growing
is necessary to determine whether the prima facie case has
been rebutted;
the Secretary must give notice of that decision both to the grantee
of PBR in the initial variety and in the second variety.
Note: A decision under this subsection to require a test growing is reviewable by the AAT under section 77.
(2) The notice must require:
(a) the grantee of PBR in the initial variety to supply the
Secretary with sufficient plants or sufficient propagating
material of plants of that variety and with any necessary
information; and
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Plant Breeder’s Rights Act 1994 39
(b) the grantee of PBR in the second variety to supply the
Secretary with sufficient plants or sufficient propagating
material of plants of that second variety and with any
necessary information;
to enable the Secretary to arrange a test growing.
(3) After completion of the test growing, any propagating material of a
variety used in, or resulting from, the test growing that is capable
of being transported must be delivered to the person by whom
propagating material of that variety was supplied for the purpose of
the test growing.
(4) All costs associated with the test growing must be paid by the
person who, without the test growing, failed to rebut the prima
facie case of essential derivation, whether or not the test growing
led to rebuttal of that case.
(5) If the Secretary requires a test growing or further test growing,
subsection 40(8) has effect as if the reference in that subsection to
30 days after being so informed were a reference to 30 days after
being informed of the results of the test growing.
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Section 42
40 Plant Breeder’s Rights Act 1994
Part 4—The grant and revocation of Plant
Breeder’s Right
Division 1—Grant of Plant Breeder’s Right
42 PBR not to be granted in excluded varieties
(1) PBR must not be granted in any variety of plant in a taxon that the
regulations declare to be a taxon to which this Act does not apply.
(2) The Governor-General must not make a regulation for the purposes
of subsection (1) unless the Governor-General has been informed
by the Minister that the Minister has considered advice given by
the Advisory Committee in relation to the desirability of making
the regulation.
(3) If:
(a) a plant variety is a hybrid; and
(b) each of the plant varieties from which it is derived is a plant
variety included in a taxon to which this Act does not apply;
PBR must not be granted in the hybrid.
43 Registrable plant varieties
(1) For the purposes of this Act, a plant variety in which an application
for PBR is made is registrable if:
(a) the variety has a breeder; and
(b) the variety is distinct; and
(c) the variety is uniform; and
(d) the variety is stable; and
(e) the variety has not been exploited or has been only recently
exploited.
(2) For the purposes of this section, a plant variety is distinct if it is
clearly distinguishable from any other variety whose existence is a
matter of common knowledge.
(3) For the purposes of this section, a plant variety is uniform if,
subject to the variation that may be expected from the particular
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features of its propagation, it is uniform in its relevant
characteristics on propagation.
(4) For the purposes of this section, a plant variety is stable if its
relevant characteristics remain unchanged after repeated
propagation.
(5) For the purposes of this section, a plant variety is taken not to have
been exploited if, at the date of lodging the application for PBR in
the variety, plant material of the variety has not been sold to
another person by, or with the consent of, the breeder.
(6) For the purposes of this section, a plant variety is taken to have
been only recently exploited if, at the date of lodging the
application for PBR in the variety, plant material of the variety has
not been sold to another person by, or with the consent of, the
breeder, either:
(a) in Australia—more than one year before that date; or
(b) in the territory of another contracting party:
(i) in the case of trees or vines—more than 6 years before
that date; or
(ii) in any other case—more than 4 years before that date.
Note: For the definition of sell see subsection 3(1).
(7) Subsection (6) does not apply to a sale by the breeder of a plant
variety of plant material of the variety to another person if that sale
is a part of, or related to, another transaction under which the right
of the breeder to make application for PBR in that plant variety is
sold to that other person.
(7A) Subsection (6) does not apply to a sale of plant material of a plant
variety to a person by, or with the consent of, the breeder if:
(a) the sole purpose of the sale is for the person to multiply plant
material of that plant variety on behalf of the breeder; and
(b) under the agreement for the sale, immediately after the plant
material is multiplied, property in the new plant material
vests in the breeder.
(7B) Subsection (6) does not apply to a sale of plant material of a plant
variety to a person by, or with the consent of, the breeder if the sale
is part of an agreement under which the person agrees to use plant
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Section 43
42 Plant Breeder’s Rights Act 1994
material of that variety for the sole purpose of evaluating the
variety in one or more of the following tests or trials:
(a) field tests;
(b) laboratory trials;
(c) small-scale processing trials;
(d) tests or trials prescribed for the purposes of this subsection.
(7C) Subsection (6) does not apply to a sale of plant material of a plant
variety to a person by, or with the consent of, the breeder if:
(a) the sale only involves plant material that is a by-product or
surplus product of one or more of the following:
(i) the creation of the variety;
(ii) a multiplication of the variety;
(iii) tests or trials covered by subsection (7B); and
(b) the plant material is sold:
(i) without identification of the plant variety of the plant
material; and
(ii) for the sole purpose of final consumption.
(8) In addition to any other reason for treating a plant variety as a
variety of common knowledge, a variety is to be treated as a
variety of common knowledge if:
(a) an application for PBR in the variety has been lodged in a
contracting party; and
(b) the application is proceeding, or has led, to the grant of PBR.
(9) A plant variety that is to be treated as a variety of common
knowledge under subsection (8) because of an application for PBR
in the variety is to be so treated from the time of the application.
(10) In this section:
authority has the same meaning as in the Convention.
plant material, in relation to a plant variety, means one or more of
the following:
(a) propagating material of the plant variety;
(b) harvested material of the plant variety;
(c) products obtained from harvested material of the plant
variety.
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Plant Breeder’s Rights Act 1994 43
territory has the same meaning as in the Convention.
variety has the same meaning as in the Convention.
44 Grant of PBR
(1) If:
(a) an application for PBR in a plant variety is accepted; and
(b) after examining the application (including the subsequent
detailed description) and any objection to the application, the
Secretary is, or continues to be, satisfied that:
(i) there is such a variety; and
(ii) the variety is a registrable plant variety within the
meaning of section 43; and
(iii) the applicant is entitled to make the application; and
(iv) the grant of that right is not prohibited by this Act; and
(v) that right has not been granted to another person; and
(vi) the name of the variety complies with section 27; and
(vii) propagating material of that variety has been deposited
for storage, at the expense of the applicant, in a genetic
resource centre approved by the Secretary; and
(viii) if the Secretary so requires, a satisfactory specimen
plant of the variety has been supplied to the herbarium;
and
(ix) all fees payable under this Act in respect of the
application, examination and grant have been paid;
the Secretary must grant that right to the applicant.
(2) If:
(a) an application for PBR in a plant variety is accepted; and
(b) the plant variety is a variety of a species indigenous to
Australia;
the Secretary must require supply of a satisfactory specimen plant
of the variety to the herbarium.
(3) If:
(a) an application for PBR in a plant variety is accepted; and
(b) the Secretary is not satisfied of all of the matters referred to
in paragraph (1)(b);
the Secretary must refuse to grant that right to the applicant.
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44 Plant Breeder’s Rights Act 1994
(4) The Secretary must not grant or refuse to grant PBR in a plant
variety until at least 6 months after the giving of public notice of
the detailed description of the variety.
(5) If:
(a) an application for PBR in a plant variety has been varied
under section 31; and
(b) the variation relates to the detailed description of the variety
that has been given to the Secretary; and
(c) the Secretary has given public notice of the variation;
the Secretary must not grant, or refuse to grant, PBR in the variety
until 6 months after giving public notice of the variation or of the
last such variation.
(6) If an objection to an application for PBR is made under section 35,
the Secretary must give the applicant 30 days, starting when a copy
of the objection is given to the applicant, or such longer period as
the Secretary considers to be reasonable in the circumstances, to
provide an answer to the objection.
(7) A quantity of propagating material of a plant variety that is lodged
with a genetic resource centre must be sufficient to enable that
variety to be kept in existence if there were no other propagating
material of plants of that variety.
(8) The delivery and storage of propagating material of a plant variety
does not affect the ownership of the material but the material must
not be dealt with otherwise than for the purposes of this Act.
(9) The propagating material of a plant stored at a genetic resource
centre may be used by the Secretary for the purposes of this Act,
including the purposes of section 19.
(10) PBR is granted to a person by the issue to that person by the
Secretary of a certificate in an approved form, signed by the
Secretary or the Registrar, containing such particulars of the plant
variety concerned as the Secretary considers appropriate.
(11) If the PBR is granted to persons who make a joint application for
the right, the right is to be granted to those persons jointly.
(12) If the Secretary refuses to grant PBR in a plant variety, the
Secretary must, within 30 days of so refusing, give written notice
to the applicant:
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Plant Breeder’s Rights Act 1994 45
(a) telling the applicant of the refusal; and
(b) setting out the reasons for the refusal.
Note: A decision under this section to grant, or refuse to grant, PBR in a plant variety is reviewable by the AAT under section 77.
45 Grant of PBR to be exclusive
(1) Subject to subsections (2) and (3), only one grant of PBR may be
made under this Act in relation to a plant variety.
(2) If 2 breeders lodge a joint application for PBR, the Registrar may
grant PBR to them jointly.
(3) If:
(a) a person is the grantee of PBR in a plant variety (the initial
variety); and
(b) another person is the grantee of PBR in another plant variety;
and
(c) the Secretary declares the other variety to be an essentially
derived variety of the initial variety;
subsection (1) does not prevent PBR in the initial variety extending
to the other variety.
46 Grant of PBR to be entered on Register
(1) When the Secretary grants PBR in a plant variety, the Registrar
must enter in the Register:
(a) a description, or description and photograph, of a plant of
that variety; and
(b) the name of the variety and any proposed synonym; and
(c) the name of the grantee; and
(d) the name and address of the breeder; and
(e) the address for the service of documents on the grantee for
the purposes of this Act as shown on the application for the
right; and
(f) the day on which the right is granted; and
(g) such other particulars relating to the granting as the Registrar
considers appropriate.
(2) When the Secretary makes a declaration that a variety (the derived
variety) is essentially derived from another variety (the initial
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46 Plant Breeder’s Rights Act 1994
variety), the Registrar must enter in the Register both in respect of
the derived variety and the initial variety:
(a) the fact that the declaration has been made; and
(b) the day on which the declaration was made.
47 Notice of grant of PBR
(1) The Secretary must, as soon as possible after granting PBR to a
person, give public notice of the grant in the Plant Varieties
Journal.
(2) The Secretary must, as soon as possible after the making of a
declaration that a plant variety is an essentially derived variety of
another plant variety, give public notice of the making of the
declaration in the Plant Varieties Journal.
48 Effect of grant of PBR
(1) If a person is granted PBR in a plant variety:
(a) any other person who was entitled to make, but had not
made, application for the right in the variety:
(i) ceases to be entitled to make such application; and
(ii) is not entitled to any interest in the right; and
(b) any other person who had made application for the right in
the variety:
(i) ceases to be entitled to have his or her application
considered or further considered; and
(ii) is not entitled to any interest in the right.
(2) Subsection (1) does not prevent a person:
(a) from applying for a revocation of the rights under section 50;
or
(b) from instituting proceedings before a court or the AAT in
relation to the right; or
(c) from requesting the Secretary to make a declaration under
section 40 that the plant variety in which the right was
granted is essentially derived from another plant variety in
which the person holds PBR.
(3) If:
(a) PBR in a particular plant variety is granted to a person; and
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Plant Breeder’s Rights Act 1994 47
(b) another person (the eligible person) was entitled, at law or
equity, to an assignment of the right to make an application
for the PBR;
the eligible person is entitled to an assignment of the PBR.
49 PBR may be subject to conditions
(1) The Minister may, if the Minister thinks it necessary, in the public
interest, refer to the Plant Breeder’s Rights Advisory Committee
the question whether a grant of PBR, whether proposed or made,
should be subject to conditions.
(2) The Minister may, having regard to the views of the Plant
Breeder’s Rights Advisory Committee on a matter referred under
subsection (1), impose such conditions on PBR that is to be granted
or that has been granted as the Minister considers appropriate.
(3) If the Minister imposes conditions on PBR:
(a) the Secretary must give public notice of those conditions and
give the grantee a copy of the instrument setting them out;
and
(b) the Registrar must enter details of those conditions in the
Register.
Note: A decision under this section by the Minister to make a grant subject to conditions is reviewable by the AAT under section 77.
ComLaw Authoritative Act C2013C00153
Part 4 The grant and revocation of Plant Breeder’s Right
Division 2 Revocation of Plant Breeder’s Right or declaration of essential derivation
Section 50
48 Plant Breeder’s Rights Act 1994
Division 2—Revocation of Plant Breeder’s Right or
declaration of essential derivation
50 Revocation of PBR
(1) The Secretary must revoke PBR in a plant variety or a declaration
that a plant variety is essentially derived from another plant variety
if:
(a) the Secretary becomes satisfied that facts existed that, if
known before the grant of that right or the making of that
declaration, would have resulted in the refusal to grant that
right or make that declaration; or
(b) the grantee has failed to pay a fee payable in respect of that
right or of that declaration within 30 days after having been
given notice that the fee has become payable.
(2) The Secretary may revoke PBR in a plant variety if:
(a) the Secretary is satisfied that a person to whom that right has
been assigned or transmitted has failed to comply with
section 21; or
(aa) the Secretary is satisfied that the grantee, without reasonable
excuse, has failed to comply with the requirements of a
notice under section 37; or
(b) the Secretary is satisfied that the grantee has failed to comply
with a condition imposed under section 49.
(3) If the Secretary revokes PBR in a plant variety or a declaration that
a plant variety is essentially derived from another plant variety, the
Secretary must, within 7 days after the decision to revoke was
taken, by notice given to the grantee of the right that has been
revoked or of the right that is affected by the giving of the
declaration of essential derivation, tell that grantee of the decision
and set out the reasons for the revocation.
(4) The Secretary must not revoke PBR under this section unless:
(a) the Secretary has given the grantee, or any person to whom
the Secretary believes that right has been assigned or
transmitted, particulars of the grounds of the proposed
revocation; and
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The grant and revocation of Plant Breeder’s Right Part 4
Revocation of Plant Breeder’s Right or declaration of essential derivation Division 2
Section 50
Plant Breeder’s Rights Act 1994 49
(b) the grantee or that other person has had 30 days after being
given those particulars to make a written statement to the
Secretary in relation to the proposed revocation.
(5) The Secretary must not under this section, revoke a declaration that
a plant variety is essentially derived from another plant variety (the
initial variety) unless:
(a) the Secretary has given the grantee of PBR in the initial
variety, or any person to whom the Secretary believes that
that PBR has been assigned or transmitted, particulars of the
grounds of the proposed revocation of that declaration of
essential derivation; and
(b) the grantee or that other person has had 30 days after being
given those particulars to make a written statement to the
Secretary in relation to the proposed revocation.
(6) The revocation of PBR in a plant variety or of a declaration that a
plant variety is essentially derived from another plant variety takes
effect:
(a) if no application for review of the revocation is made to the
AAT—at the end of the period within which such an
application might be made; or
(b) if such an application is made—at the time when the
application is withdrawn, or finally determined, whether by
the Tribunal or by a court.
(7) Nothing in this section affects the power of the Court under
subsection 44A(2) of the AAT Act.
(8) A person whose interests are affected by the grant of PBR in a
plant variety may apply to the Secretary, in writing, for the
revocation of the right.
(9) A person whose interests are affected by the making of a
declaration that a plant variety is essentially derived from another
plant variety may apply to the Secretary, in writing, for a
revocation of that declaration.
(9A) An application under subsection (8) or (9) is of no effect unless it
is accompanied by the prescribed fee.
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Part 4 The grant and revocation of Plant Breeder’s Right
Division 2 Revocation of Plant Breeder’s Right or declaration of essential derivation
Section 51
50 Plant Breeder’s Rights Act 1994
(10) If the Secretary decides not to revoke PBR in a plant variety in
accordance with an application under subsection (8) or not to
revoke a declaration of essential derivation in accordance with
subsection (9), the Secretary must, within 7 days of making that
decision, by notice in writing to the person who applied for the
revocation, tell the person of the decision and set out the reasons
for the decision.
Note: A decision under this section to revoke, or refuse to revoke, PBR or a declaration of essential derivation is reviewable by the AAT under section 77.
51 Entry of particulars of revocation
(1) If:
(a) PBR in a plant variety is revoked in accordance with
section 50; or
(b) the Secretary is served with a copy of an order of a court
given under subsection 54(3) revoking that right;
the Secretary must:
(c) enter particulars of the revocation in the Register; and
(d) give public notice of the revocation.
(2) If the holder of PBR in a plant variety fails to pay the prescribed
annual fee for the renewal of the right by the last day for payment
of that fee, the holder is taken to have surrendered the right.
(3) The Secretary must:
(a) enter particulars of the surrender in the Register; and
(b) give public notice of the surrender.
52 Surrender of PBR
The holder of PBR in a plant variety may, at any time, by written
notice to the Secretary, offer to surrender that right.
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Enforcement of Plant Breeder’s Right Part 5
Section 53
Plant Breeder’s Rights Act 1994 51
Part 5—Enforcement of Plant Breeder’s Right
53 Infringement of PBR
(1) Subject to sections 16, 17, 18, 19 and 23, PBR in a plant variety is
infringed by:
(a) a person doing, without, or otherwise than in accordance
with, authorisation from the grantee of the right, an act
referred to in a paragraph of section 11 in respect of the
variety or of a dependent variety; or
(b) a person claiming, without, or otherwise than in accordance
with, authorisation from the grantee of that right, the right to
do an act referred to in a paragraph of section 11 in respect of
that variety or of a dependent variety; or
(c) a person using a name of the variety that is entered in the
Register in relation to:
(i) any other plant variety of the same plant class; or
(ii) a plant of any other variety of the same plant class.
(1A) To avoid doubt, an infringement of PBR in a plant variety under
paragraph (1)(c) can include using a synonym in relation to the
name of a plant variety, if that synonym is entered in the Register
under paragraph 46(1)(b).
(2) If a plant variety (the derived variety) has been declared to be an
essentially derived variety of another plant variety (the initial
variety), the reference in paragraphs (1)(a) and (b) to authorisation
from the grantee of the right means, in relation to the derived
variety, authorisation from both the grantee of PBR in the derived
variety and from the grantee of PBR in the initial variety.
(3) In this section, a reference to the grantee of PBR in a plant variety
includes a reference to a person who has, by assignment or
transmission, become the holder of that right.
54 Actions for infringement
(1) An action for infringement of PBR in a plant variety may be begun
in the Court only by the grantee.
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Section 55
52 Plant Breeder’s Rights Act 1994
(2) A defendant in an action for infringement of PBR in a plant variety
may apply, by way of counterclaim, for revocation of that right on
the ground that:
(a) the variety was not a new plant variety; or
(b) facts exist that would have resulted in the refusal of the grant
of that right if they had been known to the Secretary before
the grant of that right.
(3) If, in an action for infringement of PBR in a plant variety:
(a) the defendant applies, by way of counterclaim, for the
revocation of that right; and
(b) the Court is satisfied that a ground for revocation of that right
exists;
the Court may make an order revoking that right.
(4) If the Court revoked PBR in a plant variety on the counterclaim of
a defendant, the Court may order the defendant to serve on the
Registrar a copy of the order revoking that right.
55 Declarations as to non-infringement
(1) A person who proposes to perform an act described in a paragraph
of section 11 in relation to the propagating material of a plant
variety may, by an action in the Court against the grantee of PBR
in a plant variety, apply for a declaration that the performance of
that act would not constitute an infringement of that right.
(2) A person may apply for a declaration whether or not there has been
an assertion of an infringement of PBR by the grantee of that right.
(3) The Court must not make such a declaration unless:
(a) the person proposing to perform the act:
(i) has applied in writing to the grantee of the PBR
concerned for an admission that the proposed
performance of the act would not infringe that right; and
(ii) has given the grantee full written particulars of the
propagating material concerned; and
(iii) has undertaken to repay all expenses reasonably
incurred by the grantee in obtaining advice in the
declaration; and
(b) the grantee has refused or failed to make such an admission.
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Section 56
Plant Breeder’s Rights Act 1994 53
(4) The costs of all parties in proceedings for a declaration under this
section are to be paid by the person seeking the declaration unless
the Court otherwise orders.
(5) The validity of a grant of PBR in a plant variety is not to be called
in question in proceedings for a declaration under this section.
(6) The making of, or the refusal to make, a declaration under this
section does not imply that a grant of PBR in a plant variety is, or
is not, valid.
56 Jurisdiction of Court
(1) The Court has jurisdiction with respect to matters in which actions
may, under this Part, be begun in the Court.
(2) That jurisdiction is exclusive of the jurisdiction of all other courts,
other than the jurisdiction of the High Court under section 75 of the
Constitution.
(3) The relief that the Court may grant in an action or proceeding for
infringement of PBR includes an injunction (subject to such terms,
if any, as the Court thinks fit) and, at the option of the plaintiff,
either damages or an account of profits.
(4) The regulations may make provision in relation to the practice and
procedure of the Court in actions under this Act, including
provision prescribing the time within which any action may be
begun, or any other act or thing may be done, and providing for the
extension of any such time.
(5) Subsection (4) does not limit the power of the Judges of the Court
or a majority of them to make rules of Court under section 59 of
the Federal Court of Australia Act 1976 that are consistent with the
regulations referred to in that subsection.
57 Innocent infringement
(1) The Court may refuse to award damages, or to make an order for
an account of profits, against a person in an action for infringement
of PBR in a plant variety, if the person satisfies the Court that, at
the time of the infringement, the person was not aware of, and had
no reasonable grounds for suspecting, the existence of that right.
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Section 57
54 Plant Breeder’s Rights Act 1994
(2) If the propagating material of plants of the plant variety, labelled so
as to indicate that PBR is held in the variety in Australia, has been
sold to a substantial extent before the date of the infringement, the
person against whom the action for infringement is brought is
taken to have been aware of the existence of PBR in the variety,
unless the contrary is established.
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Administration Part 6
Section 58
Plant Breeder’s Rights Act 1994 55
Part 6—Administration
58 Registrar of Plant Breeder’s Rights
(1) There is established by this section a Registrar of Plant Breeder’s
Rights.
(2) The office of the Registrar of Plant Breeder’s Rights is an office in
the Department.
(3) The Registrar has the functions and powers:
(a) that are conferred on the Registrar by this Act or by the
regulations; or
(b) that are delegated to the Registrar by the Secretary under
section 59.
59 Delegation
Delegation of Minister’s statutory powers and functions
(1) The Minister may, by signed instrument, delegate to the Registrar,
or to an SES employee, or acting SES employee, in the
Department, any of the powers or functions of the Minister under
this Act or the regulations.
Delegation of Secretary’s statutory powers and functions
(2) The Secretary may, by signed instrument, delegate to the Registrar,
or to an SES employee, or acting SES employee, in the
Department, any of the powers or functions of the Secretary under
this Act or the regulations.
Delegation of Registrar’s statutory powers and functions
(3) The Registrar may, by signed instrument, delegate to a prescribed
employee, or employees in a prescribed class, any of the powers or
functions of the Registrar under this Act or the regulations.
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Section 60
56 Plant Breeder’s Rights Act 1994
Subdelegation of delegated powers and functions
(4) A person to whom a power or function under this Act or the
regulations has been delegated by the Minister or the Secretary
under subsection (1) or (2) may, by signed instrument, delegate the
power or function to a prescribed employee, or employees in a
prescribed class.
(5) A power or function that is exercised or performed by an employee
under a delegation under subsection (4) is taken, for the purposes
of this Act and the regulations, to have been exercised or
performed by the person who originally delegated the
corresponding power or function under subsection (1) or (2).
Requirement to act under direction or supervision
(6) If required by an instrument under subsection (3) or (4) delegating
a power or function to an employee, the employee must exercise
the power or perform the function under the direction or
supervision of:
(a) the person who delegated the power or function to the
employee; or
(b) another employee specified in the instrument.
This subsection applies whether the instrument identifies the
employee specifically or by reference to a class.
Definition
(7) In subsections (3), (4), (5) and (6):
employee means a person who is engaged under the Public Service
Act 1999 or otherwise for or on behalf of the Commonwealth and
whose duties involve providing assistance to the Registrar.
60 Certain persons not to acquire PBR
(1) A person must not apply for, or otherwise acquire, except than by
will or by operation of law, PBR in a plant variety or an interest in
such right if the person has during the 12 months before the
application, held, or performed the duties of:
(a) the office of Secretary; or
(b) the office of Registrar of Plant Breeder’s Rights; or
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Plant Breeder’s Rights Act 1994 57
(c) an office in the Department the duties of which involve
providing assistance to the Registrar.
Penalty: 60 penalty units.
(2) A grant of PBR applied for in contravention of subsection (1) or an
acquisition of PBR in contravention of that subsection is void.
61 Register of Plant Varieties
(1) The Registrar must keep a register, to be known as the Register of
Plant Varieties, at a place approved by the Secretary.
(1A) The Registrar must maintain, for the purposes of this Act, a list of
all plant classes to be known as the Registrar’s List of Plant
Classes.
(1B) In maintaining that list the Registrar must, for so long as the Union
maintains the document presently known as the List of Classes for
Variety Denomination Purposes, have regard to that list and to any
variations to that list as so maintained.
(1C) The list maintained by the Registrar must be kept as a part of the
Register.
(2) In order to foster public access to the information contained in the
Register, the Registrar may disseminate that information on the
internet or in such other manner as the Registrar considers most
likely to enhance its accessibility.
62 Inspection of Register
(1) A person may inspect the Register at any reasonable time.
(2) A person is entitled, on payment of such fee (if any) as is
prescribed, to be given a copy of an entry in the Register.
(3) For the purposes of subsection (2), a reference to an entry in the
Register does not include a reference to the Registrar’s List of
Plant Classes or to any part of that list.
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Part 7 Plant Breeder’s Rights Advisory Committee
Section 63
58 Plant Breeder’s Rights Act 1994
Part 7—Plant Breeder’s Rights Advisory
Committee
63 Establishment of Advisory Committee
(1) There is established by this section a Committee by the name of the
Plant Breeder’s Rights Advisory Committee.
(2) The functions of the Advisory Committee are:
(a) at the request of the Minister, to advise the Minister on the
desirability of declaring:
(i) in regulations made for the purpose of
subsection 17(2)—that subsection 17(1) does not apply
to a particular taxon; or
(ii) in regulations made for the purpose of
subsection 22(3)—that the duration of PBR in a
particular taxon will be longer than provided in
subsection 22(2); or
(iii) in regulations made for the purpose of
subsection 42(1)—that a particular taxon is a taxon to
which this Act does not apply; and
(aa) at the request of the Minister, to advise the Minister on the
question of whether an existing, or proposed, grant of PBR
should be subject to conditions; and
(b) to advise the Registrar on such technical matters arising
under this Act, and such other matters relating to the
administration of this Act, as the Registrar refers to the
Advisory Committee.
64 Membership of Advisory Committee
(1) The Advisory Committee consists of:
(a) the Registrar; and
(b) 2 members who, in the opinion of the Minister, are
appropriate persons to represent breeders, and likely
breeders, of new plant varieties; and
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Section 64
Plant Breeder’s Rights Act 1994 59
(c) one member who, in the opinion of the Minister, is an
appropriate person to represent users, and likely users, of
new plant varieties; and
(d) one member who, in the opinion of the Minister, is an
appropriate person to represent the interests of consumers,
and likely consumers, of new plant varieties or of the
products of new plant varieties; and
(e) one member who will represent the conservation interests in
relation to new plant varieties and the potential impacts of
new plant varieties; and
(f) one member who will represent indigenous Australian
interests in relation to new plant varieties and the source, use
and impacts of new plant varieties; and
(g) 2 other members who, in the opinion of the Minister, possess
qualifications or experience that are appropriate for a
member of the Advisory Committee.
(2) The members, other than the Registrar, must be appointed by the
Minister.
(3) The members, other than the Registrar, hold office as part-time
members.
(4) Each member, other than the Registrar, holds office for the period,
not exceeding 3 years, that is specified in the instrument of
appointment, but is eligible for re-appointment.
(5) The Minister may terminate the appointment of a member, other
than the Registrar, for misbehaviour or for physical or mental
incapacity.
(6) The Minister must terminate the appointment of a member, other
than the Registrar, if the member:
(a) becomes bankrupt, applies to take the benefit of any law for
the relief of bankrupt or insolvent debtors, compounds with
his or her creditors or makes an assignment of his or her
remuneration for their benefit; or
(b) fails, without reasonable excuse, to disclose any interest in a
matter required to be disclosed under section 66.
(7) If a person’s appointment as a member is terminated under
subsection (6), the Minister must give the person a written notice
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Section 65
60 Plant Breeder’s Rights Act 1994
informing the person of the termination and setting out the reasons
for the termination.
(8) A member, other than the Registrar, may resign his or her office by
writing signed by the member and delivered to the Minister.
65 Remuneration and allowances
(1) The members referred to in paragraphs 64(1)(b), (c), (d), (e), (f)
and (g) must be paid:
(a) such remuneration as is determined by the Remuneration
Tribunal; and
(b) such allowances as are prescribed.
(2) Subsection (1) has effect subject to the Remuneration Tribunal Act
1973.
66 Disclosure of interests
(1) A member who has a direct or indirect pecuniary interest in a
matter being considered at a meeting of the Advisory Committee
must, as soon as possible after the relevant facts have come to the
member’s knowledge, disclose the nature of the interest at the
meeting.
(2) A disclosure must:
(a) be recorded in the minutes of the meeting of the Advisory
Committee; and
(b) be made known in any advice given by the Committee in
relation to that matter.
67 Meetings
(1) The Registrar may convene such meetings of the Advisory
Committee as are necessary for the purposes of the performance of
the functions of the Advisory Committee.
(2) At a meeting of the Advisory Committee, 5 members constitute a
quorum.
(3) The Registrar presides at a meeting of the Advisory Committee at
which the Registrar is present.
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(4) If the Registrar is not present, the members present must elect one
of their number to preside at the meeting.
(5) Subject to subsection (2), the Advisory Committee may determine
the procedure to be followed at a meeting of the Committee.
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Part 8 Miscellaneous
Section 68
62 Plant Breeder’s Rights Act 1994
Part 8—Miscellaneous
68 Public notices
(1) The Secretary must issue a journal, to be called the Plant Varieties
Journal, at least 4 times each year.
(2) Any public notice that the Secretary is required to make under this
Act must be published in the Journal.
(3) Public notice of any matter additional to the matters referred to in
subsection (2) that the Secretary considers it necessary or desirable
to publicise may also be published in the Journal.
(4) If the Secretary considers it desirable to give additional public
notice of matters by publishing notices of those matters in a
periodical other than the Journal, the Secretary may arrange for, or
consent to, the giving of additional public notice of those matters in
the periodical.
69 Notices inviting submissions in respect of certain regulations
(1) Regulations must not be made for the purposes of subsection 17(2),
22(3) or 42(1) unless, before the making of the regulations and
before the Minister seeks any advice from the Advisory Committee
concerning those regulations:
(a) the Minister has, in accordance with section 68, given public
notice of the Minister’s intention to make a regulation for the
purposes of that subsection in relation to a particular taxon
that is specified in the notice; and
(b) the notice has given a broad indication of the objectives of
the intended regulations and invited persons to make
submissions to the Minister concerning it within a period of
30 days after the publication of the notice.
(2) If the Minister receives, in accordance with an invitation in a
public notice under subsection (1), a submission concerning an
intended regulation, the Minister must have regard to the
submission so made.
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(3) If the Minister seeks advice of the Advisory Committee concerning
an intended regulation, the Minister may comply with
subsection (2):
(a) by providing to the Committee, at the time of requesting the
advice of that Committee, a copy of all submissions received;
and
(b) requesting the Advisory Committee to have regard to those
submissions in preparing its advice to the Minister.
70 Genetic resource centres
(1) If, in the opinion of the Secretary, a place is suitable for the storage
and maintenance of germplasm material, the Secretary may, by
notice in writing, declare that place to be a genetic resource centre
for the purposes of this Act.
(2) The person in charge of a genetic resource centre may do all things
necessary to maintain the viability of propagating material stored at
that centre.
71 The herbarium
If, in the opinion of the Secretary, an organisation has facilities
suitable for the storage of plant specimens, the Secretary may, by
notice in writing, declare the organisation to be the herbarium for
the purposes of this Act.
72 Agents may act in matters relating to PBR
Subject to any other law of the Commonwealth, including the High
Court Rules and the Federal Court Rules, an application, a written
submission or any other document may be prepared or lodged, and
any business may be transacted, for the purposes of this Act, by
one person on behalf of another person.
73 Service of documents
If the Secretary or the Registrar is required by this Act to give a
written notice or other document to an applicant for, or a grantee
of, PBR, that notice or other document may be given by being
posted by pre-paid post as a letter addressed to the applicant or the
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Section 74
64 Plant Breeder’s Rights Act 1994
grantee at the address for service shown on the application or
entered in the Register, as the case requires.
74 Infringement offences
(1) A person must not, in relation to propagating material of a plant
variety in which PBR has been granted, do any of the acts referred
to in a paragraph of section 11 if such an act would, under
section 53, infringe the PBR in the variety.
Penalty: 500 penalty units.
(1A) In subsection (1), strict liability applies to the physical element of
circumstance, that the infringement of the PBR would be under
section 53.
Note: For strict liability, see section 6.1 of the Criminal Code.
(2) The fact that an action for infringement has been brought against a
person under section 54 in respect of a particular act does not
prevent a prosecution under this section in respect of the same act.
75 Offences other than infringement offences
(1) A person must not make a false statement in an application or other
document given to the Secretary or the Registrar for the purposes
of this Act.
Penalty: 6 months imprisonment.
(2) A person who is not the grantee of PBR in a plant variety must not
represent to another person that he or she is the grantee of PBR in
that variety.
Penalty: 60 penalty units.
(3) A person must not represent to another person that PBR granted to
that first-mentioned person in a plant variety extends to cover
another plant variety that is not:
(a) a dependent variety of the first-mentioned variety; or
(b) a variety that has been declared to be an essentially derived
variety of the first-mentioned variety.
Penalty: 60 penalty units.
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(4) A person must not represent to another person that a plant of a
variety in which PBR has not been granted is a plant of a variety in
which PBR has been granted.
Penalty: 60 penalty units.
76 Conduct by directors, servants and agents
(1) If, in proceedings for an offence against section 74 or 75, it is
necessary to establish the state of mind of a body corporate in
relation to particular conduct, it is sufficient to show:
(a) that the conduct was engaged in by a director, servant or
agent of the body corporate, within the scope of his or her
actual or apparent authority; and
(b) that the director, servant or agent had the state of mind.
(2) Any conduct engaged in on behalf of a body corporate by a
director, servant or agent of the body corporate within the scope of
his or her actual or apparent authority is to be taken, for the
purposes of a prosecution for an offence against section 74 or 75,
to have been engaged in also by the body corporate unless the body
corporate establishes that the body corporate took reasonable
precautions and exercised due diligence to avoid the conduct.
(3) If, in proceedings for an offence against section 74 or 75, it is
necessary to establish the state of mind of a person other than a
body corporate in relation to a particular conduct, it is sufficient to
show:
(a) that the conduct was engaged in by a servant or agent of the
person, within the scope of his or her actual or apparent
authority; and
(b) that the servant or agent had the state of mind.
(4) Any conduct engaged in on behalf of a person other than a body
corporate by a servant or agent of the person within the scope of
his or her actual or apparent authority is to be taken, for the
purposes of a prosecution for an offence against section 74 or 75,
to have been engaged in also by the first-mentioned person unless
the first-mentioned person establishes that the first-mentioned
person took reasonable precautions and exercised due diligence to
avoid the conduct.
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66 Plant Breeder’s Rights Act 1994
(5) If:
(a) a person other than a body corporate is convicted of an
offence; and
(b) the person would not have been convicted for the offence if
subsections (3) and (4) had not been enacted;
the person is not liable to be punished by imprisonment for that
offence.
(6) A reference in subsection (1) or (3) to the state of mind of a person
includes a reference to:
(a) the knowledge, intention, opinion, belief or purpose of the
person; and
(b) the person’s reasons for the intention, opinion, belief or
purpose.
(7) A reference in this section to a director of a body corporate
includes a reference to a constituent member of a body corporate
incorporated for a public purpose by a law of the Commonwealth,
of a State or of a Territory.
(8) A reference in this section to engaging in conduct includes a
reference to failing or refusing to engage in conduct.
(9) A reference in this section to an offence against section 74 or 75
includes a reference to an offence:
(a) against section 6 of the Crimes Act 1914; or
(b) that is taken to have been committed because of section 11.2
or 11.2A of the Criminal Code; or
(c) against section 11.1, 11.4 or 11.5 of the Criminal Code;
that relates to section 74 or 75 of this Act.
76A Doing act when PBR office reopens after end of period
otherwise provided for doing act
(1) If the last day of a period provided by this Act (except this section)
or the regulations for doing an act is a day when the PBR office or
a PBR sub-office is not open for business, the act may be done in
prescribed circumstances on the next day when the office or
sub-office is open for business.
(2) For the purposes of this section, the PBR office or a PBR
sub-office is taken not to be open for business on a day:
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(a) declared by regulations to be a day on which the office or
sub-office is not open for business; or
(b) declared, by a prescribed person in writing published in the
prescribed way, to be a day on which the office or sub-office
is not open for business.
Declarations
(3) A declaration mentioned in paragraph (2)(a) or (b) may identify the
day by reference to its being declared a public holiday by or under
a law of a State or Territory. This does not limit the way the
declaration may identify the day.
(4) A declaration mentioned in paragraph (2)(b):
(a) may be made before, on or after the day; and
(b) is not a legislative instrument.
Relationship with other law
(5) This section has effect despite the rest of this Act.
(6) Subsection 36(2) of the Acts Interpretation Act 1901 does not
apply in relation to the act mentioned in subsection (1) of this
section.
Exception for prescribed act
(7) This section does not apply to a prescribed act.
Note: Subsection 36(2) of the Acts Interpretation Act 1901 is relevant to a prescribed act.
77 Applications for review
(1) Applications may be made to the AAT for review of:
(a) a decision by the Minister under subsection 49(2); or
(b) a decision by the Secretary:
(i) under subsection 19(7) to exercise a power under
subsection 19(3); or
(ii) under subsection 19(3) to license, or refuse to license, a
person who applied to be so licensed in response to an
invitation under paragraph 19(8)(c); or
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Part 8 Miscellaneous
Section 77
68 Plant Breeder’s Rights Act 1994
(iii) under subsection 19(10) to make propagating material
available; or
(iv) under subsection 19(11) to certify, or to refuse to
certify, a plant variety; or
(v) under section 30 to accept or reject an application; or
(vi) under section 31 to vary, or refuse to vary, an
application; or
(vii) under subsection 34(1) refusing to extend the period for
giving a detailed description; or
(viii) under section 37 to require a test growing; or
(viiia) under paragraph 37(2B)(b) not to proceed further with
an application, objection or request for revocation; or
(ix) under subsection 38(4) to the effect that the Secretary is
satisfied of the matters referred to in that subsection; or
(x) under subsection 38(5) to the effect that the Secretary is
satisfied of the matters referred to in that subsection; or
(xi) under subsection 39(2) to issue a notice to an applicant;
or
(xii) under paragraph 40(8)(b) refusing to extend the period
for rebutting the prima facie case of essential derivation;
or
(xiii) under section 40 in respect of an application for a
declaration of essential derivation; or
(xiv) under section 41 to require a test growing; or
(xv) under section 44 to grant, or refuse to grant, PBR in a
plant variety; or
(xvi) under section 50 to revoke, or not to revoke, PBR in a
plant variety or a declaration that a plant variety is
essentially derived from another plant variety; or
(c) a decision of the Registrar under section 21 to amend, or
refuse to amend, the Register.
(2) The AAT does not have power under subsection 29(7) of the AAT
Act to extend the time for making an application to that Tribunal
for a review of a decision referred to in subsection (1).
(3) The Secretary must give public notice of:
(a) any application made under subsection (1); and
(b) any decision of the AAT on such an application; and
(c) any decision of a court in relation to, or arising out of:
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Miscellaneous Part 8
Section 78
Plant Breeder’s Rights Act 1994 69
(i) such an application; or
(ii) a decision of the AAT on such an application.
(4) In this section:
decision has the same meaning as in the AAT Act.
78 Repeal
The Plant Variety Rights Act 1987 is repealed.
79 Compensation for acquisition of property
(1) If, apart from this section, the operation of this Act would result in
an acquisition of property from a person otherwise than on just
terms, the Commonwealth is to pay the person such reasonable
amount of compensation as is agreed on between the person and
the Commonwealth, or failing agreement, as is determined by a
court of competent jurisdiction.
(2) Any damages or compensation recovered, or other remedy given,
in proceedings that are begun otherwise than under this section
must be taken into account in assessing compensation payable in
proceedings begun under this section and arising out of the same
event or circumstance.
(3) In this section:
acquisition of property has the same meaning as in
paragraph 51(xxxi) of the Constitution.
just terms has the same meaning as in paragraph 51(xxxi) of the
Constitution.
80 Regulations
(1) The Governor-General may make regulations prescribing all
matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or
giving effect to this Act.
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Part 8 Miscellaneous
Section 80
70 Plant Breeder’s Rights Act 1994
(2) Without limiting subsection (1), that subsection includes the power
to make regulations:
(a) prescribing fees including:
(i) fees payable in respect of the making of applications for
PBR, the examination of those applications and the
issue of certificates in respect of the grant of PBR; and
(ii) fees payable in respect of the making of applications for
declarations of essential derivation, the examination of
those applications and the making of those declarations;
and
(iii) fees payable by grantees of PBR at specified intervals or
on specified dates; and
(iv) fees payable in respect of costs incurred by the
Secretary in respect of the conduct or supervision of the
test growing of plants;
and, if the matter is not dealt with by another provision of
this Act, specifying the time at which, or the circumstances in
which, such fees are to be paid and the manner of payment of
such fees; and
(b) making provision in relation to the refund, in specified
circumstances, of the whole or part of a fee paid under this
Act; and
(c) making provision in relation to the remission of, or the
exemption of specified classes of persons from the payment
of, the whole or a part of a fee; and
(d) making provision in relation to the amendment of an entry in
the Register to correct a clerical error or an obvious mistake;
and
(e) making such transitional and saving provisions as are
necessary or convenient as a result of the repeal of the Plant
Variety Rights Act 1987 and the enactment of this Act.
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Transitional Part 9
Section 81
Plant Breeder’s Rights Act 1994 71
Part 9—Transitional
81 Definitions
In this Part:
commencing day means the day on which, in accordance with
section 2, this Act commences.
old Act means the Plant Variety Rights Act 1987.
82 Plant variety rights under old Act to be treated as PBR under
this Act
(1) If:
(a) a person was granted plant variety rights in respect of a plant
variety under the old Act; and
(b) those rights were still in force immediately before the
commencing day;
then, subject to the regulations, those rights have effect, despite the
repeal of the old Act, on and after that day, as if:
(c) this Act had been in force at the time when those rights were
granted; and
(d) they had been granted at that time as PBR in that variety.
(2) Despite subsection (1), rights treated as if they had been granted as
PBR under this Act continue in force for so long only as they
would have continued in force if the old Act had not been repealed.
(3) Nothing in this section gives the holder of rights treated as PBR in
a particular plant variety under this Act the right to claim PBR in
respect of plant varieties that would, under this Act, be dependent
plant varieties in relation to that particular plant variety.
(4) Nothing in this section gives the holder of rights treated as PBR in
a particular plant variety under this Act the right to seek a
declaration that another plant variety is an essentially derived
variety of the particular plant variety unless PBR in that other plant
variety was given only on or after the commencing day.
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Part 9 Transitional
Section 83
72 Plant Breeder’s Rights Act 1994
83 Applications for plant variety rights lodged and criminal
proceedings begun before commencing day
(1) If, before the commencing day:
(a) a person has made application for plant variety rights under
the old Act; but
(b) the application has not been finally disposed of under that
Act;
the provisions of the old Act are taken to continue in force, for the
purpose of dealing with the application, and any objection that has
been made before that day, or is made after that day, in relation to
the application.
(2) If before the commencing day, criminal proceedings had been
begun under the old Act but those proceedings had not been finally
determined before that day, the provisions of the old Act are taken
to continue in force, for the purposes of those proceedings.
84 Other applications and proceedings under old Act
(1) Subject to the regulations, this Act applies, on and after the
commencing day, to any application, request, action or proceeding
made or started under the old Act and not finally dealt with or
determined under that Act before that day as if the application,
request, action or proceeding had been made or started under a
corresponding provision of this Act.
(2) Subsection (1) does not apply in relation to an application for plant
variety rights, or to criminal proceedings, covered by section 83.
85 Transitional arrangements for membership and functions of
Advisory Committee
(1) The persons who, under the old Act, were members of the Plant
Variety Rights Advisory Committee established under section 44
of that Act are to be taken, with effect from the commencing day,
to be members of the Plant Breeder’s Rights Advisory Committee
established by section 63 of this Act.
(2) Those members who were appointed by the Minister under
section 45 of the old Act continue to hold office as if they had been
appointed by the Minister under section 64 of the new Act on the
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Transitional Part 9
Section 86
Plant Breeder’s Rights Act 1994 73
same terms and conditions for the balance of the term of their
respective appointments.
(3) Any advice given to the Minister or to the Secretary by the Plant
Variety Rights Advisory Committee has effect, on and after the
commencing day, as if it had been given by the Plant Breeder’s
Rights Advisory Committee.
86 Register of Plant Varieties
On and after the commencing day, the Register of Plant Varieties
under the old Act is taken to form part of the Register of Plant
Varieties under this Act.
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Endnotes
Endnote 1—Legislation history
74 Plant Breeder’s Rights Act 1994
Endnotes
Endnote 1—Legislation history
This endnote sets out details of the legislation history of the Plant Breeder’s
Rights Act 1994.
Act Number
and year
Assent
date
Commencement
date
Application,
saving and
transitional
provisions
Plant Breeder’s Rights
Act 1994
110, 1994 5 Sept 1994 10 Nov 1994 (see
Gazette 1994, No. S392)
Agriculture, Fisheries
and Forestry Legislation
Amendment Act (No. 1)
1999
4, 1999 31 Mar
1999
31 Mar 1999 —
Public Employment
(Consequential and
Transitional)
Amendment Act 1999
146, 1999 11 Nov
1999
Schedule 1 (item 733): 5
Dec 1999 (see s. 2(1)
and (2) and Gazette
1999, No. S584)
—
Agriculture, Fisheries
and Forestry Legislation
Amendment Act (No. 2)
1999
170, 1999 10 Dec
1999
Schedule 1: Royal
Assent
Sch. 1 (item 7)
Agriculture, Fisheries
and Forestry Legislation
Amendment
(Application of Criminal
Code) Act 2001
115, 2001 18 Sept
2001
16 Oct 2001 s. 4
Plant Breeder’s Rights
Amendment Act 2002
148, 2002 19 Dec
2002
20 Dec 2002 Sch. 1 (items 39–
45)
Intellectual Property
Laws Amendment Act
2006
106, 2006 27 Sept
2006
Schedule 11 (items 1, 2),
Schedule 14 and
Schedule 15 (items 2, 3):
28 Sept 2006
Schedule 12 (items 5–7):
27 Mar 2007
Sch. 11 (item 2),
Sch. 14 (item 3)
and Sch. 15
(item 3)
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Endnotes
Endnote 1—Legislation history
Plant Breeder’s Rights Act 1994 75
Act Number
and year
Assent
date
Commencement
date
Application,
saving and
transitional
provisions
Personal Property
Securities
(Consequential
Amendments) Act 2009
131, 2009 14 Dec
2009
Schedule 2 (items 16,
17): 30 Jan 2012 (see
F2011L02397)
—
Crimes Legislation
Amendment (Serious
and Organised Crime)
Act (No. 2) 2010
4, 2010 19 Feb
2010
Schedule 11 (item 15):
20 Feb 2010
—
Statute Law Revision
Act 2010
8, 2010 1 Mar 2010 Schedule 1 (item 40):
Royal Assent
Schedule 5
(item 137(a)): (a)
—
Statute Law Revision
Act 2011
5, 2011 22 Mar
2011
Schedule 1 (item 92):
Royal Assent
—
Intellectual Property
Laws Amendment
(Raising the Bar) Act
2012
35, 2012 15 Apr
2012
Schedule 6 (items 104–
108): 15 Apr 2013
—
(a) Subsection 2(1) (items 31 and 38) of the Statute Law Revision Act 2010
provides as follows:
(1) Each provision of this Act specified in column 1 of the table commences,
or is taken to have commenced, in accordance with column 2 of the table.
Any other statement in column 2 has effect according to its terms.
Commencement information
Column 1 Column 2 Column 3
Provision(s) Commencement Date/Details
31. Schedule 5,
items 1 to 51
The day this Act receives the Royal Assent. 1 March 2010
38. Schedule 5,
Parts 2 and 3
Immediately after the provision(s) covered by table
item 31.
1 March 2010
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Endnotes
Endnote 2—Amendment history
76 Plant Breeder’s Rights Act 1994
Endnote 2—Amendment history
This endnote sets out the amendment history of the Plant Breeder’s Rights Act
1994.
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
Part 1
s. 3 .................................................am. No. 4, 1999; No. 148, 2002; No. 106, 2006; No. 35, 2012
s. 7 .................................................rep. No. 106, 2006
s. 9A ..............................................ad. No. 115, 2001
Part 2
Note to s. 11 ..................................ad. No. 148, 2002
s. 18 ...............................................rs. No. 148, 2002
Notes 1, 2 to s. 20 ..........................ad. No. 131, 2009
s. 21 ...............................................am. No. 170, 1999
s. 23 ...............................................am. No. 148, 2002
Part 3
Division 1
Note to s. 25 ..................................ad. No. 131, 2009
s. 26 ...............................................am. No. 148, 2002
Note to s. 26(2)..............................ad. No. 148, 2002
s. 27 ...............................................am. No. 4, 1999; No. 148, 2002
s. 28 ...............................................am. No. 106, 2006
s. 29 ...............................................am. No. 148, 2002
s. 30 ...............................................am. No. 148, 2002
Division 2
s. 34 ...............................................am. No. 148, 2002
s. 35 ...............................................am. No. 170, 1999
s. 36 ...............................................am. No. 148, 2002
s. 37 ...............................................am. No. 170, 1999; No. 148, 2002
Division 3
s. 39 ...............................................am. No. 148, 2002
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Endnotes
Endnote 2—Amendment history
Plant Breeder’s Rights Act 1994 77
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
Part 4
Division 1
s. 43 ...............................................am. No. 170, 1999; No. 148, 2002; No. 35, 2012
Note to s. 43(6)..............................ad. No. 148, 2002
s. 48 ...............................................am. No. 148, 2002
s. 49 ...............................................am. No. 148, 2002
Division 2
s. 50 ...............................................am. No. 170, 1999; No. 148, 2002
s. 51 ...............................................am. No. 5, 2011
Part 5
s. 53 ...............................................am. No. 4, 1999; No. 148, 2002
s. 54 ...............................................am. No. 148, 2002
Part 6
s. 59 ...............................................am. No. 146, 1999
rs. No. 106, 2006
s. 61 ...............................................am. Nos. 4 and 170, 1999; No. 8, 2010
s. 62 ...............................................am. No. 4, 1999
Part 7
s. 63 ...............................................am. No. 148, 2002
s. 64 ...............................................am. No. 148, 2002
s. 65 ...............................................am. No. 148, 2002
s. 67 ...............................................am. No. 148, 2002
Part 8
s. 74 ...............................................am. No. 115, 2001
s. 75 ...............................................am. No. 115, 2001
s. 76 ...............................................am. No. 4, 2010
s. 76A ............................................ad. No. 106, 2006
s. 77 ...............................................am. No. 148, 2002
s. 80 ...............................................am. No. 170, 1999
Schedule ........................................am. No. 148, 2002; No. 8, 2010
ComLaw Authoritative Act C2013C00153
Endnotes
Endnote 2—Amendment history
78 Plant Breeder’s Rights Act 1994
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
exp. = expired or ceased to have effect
Provision affected How affected
rep. No. 35, 2012
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Endnotes
Endnote 3—Application, saving and transitional provisions
Plant Breeder’s Rights Act 1994 79
Endnote 3—Application, saving and transitional provisions
This endnote sets out application, saving and transitional provisions for
amendments of the Plant Breeder’s Rights Act 1994.
Agriculture, Fisheries and Forestry Legislation Amendment Act (No. 2)
1999 (No. 170, 1999)
Schedule 1
7 Transitional provision
(1) If:
(a) a person first sold a plant variety in the territory of a
contracting party other than Australia after 9 November 1988
and before 10 November 1990; and
(b) the person lodged an application for PBR under the Plant
Breeder’s Rights Act 1994 more than 4 years but less than 6
years after the date of that first sale; and
(c) the application was rejected only because of the operation of
subsection 43(6) of that Act;
then, despite the terms of that subsection and subject to subitem (2), the
Registrar may further consider that application as if the sales of that
plant variety occurring after 9 November 1988 but more than 4 years
before the application had not taken place.
(2) Subitem (1) does not apply in relation to an application referred to in
that subitem unless the applicant in relation to that application, or any
successor in title to that applicant, notifies the Registrar, in writing, to
take action under this item in relation to that application within 6
months after the commencement of this item.
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Endnotes
Endnote 3—Application, saving and transitional provisions
80 Plant Breeder’s Rights Act 1994
Agriculture, Fisheries and Forestry Legislation Amendment (Application
of Criminal Code) Act 2001 (No. 115, 2001)
4 Application of amendments
(1) Each amendment made by this Act applies to acts and omissions
that take place after the amendment commences.
(2) For the purposes of this section, if an act or omission is alleged to
have taken place between 2 dates, one before and one on or after
the day on which a particular amendment commences, the act or
omission is alleged to have taken place before the amendment
commences.
Plant Breeder’s Rights Amendment Act 2002 (No. 148, 2002)
Schedule 1
39 Application of item 4
The amendment made by item 4 applies in relation to an act done on or
after the commencement of that item.
40 Application of item 16
The amendment made by item 16 applies in relation to:
(a) an application made before the commencement of that item,
if the applicant has not paid the examination fee in respect of
the application; and
(b) an application made on or after the commencement of that
item.
41 Application of items 18, 19 and 31
The amendments made by items 18, 19 and 31 apply in relation to a
decision that there should be a test growing or further test growing that
is made on or after the commencement of those items.
42 Application of item 20
The amendment made by item 20 applies in relation to a test growing
begun on or after the commencement of that item.
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Endnotes
Endnote 3—Application, saving and transitional provisions
Plant Breeder’s Rights Act 1994 81
43 Application of items 21 and 22
The amendments made by items 21 and 22 apply in relation to:
(a) an application made, but not disposed of, before the
commencement of those items; and
(b) an application made on or after the commencement of those
items.
44 Application of items 23, 25, 26 and 28
The amendments made by items 23, 25, 26 and 28 apply in relation to a
sale that occurs on or after the commencement of those items.
45 Application of item 27
The amendment made by item 27 applies in relation to an application
made before, on or after the commencement of that item.
Intellectual Property Laws Amendment Act 2006 (No. 106, 2006)
Schedule 11
2 Application
The amendment of the Plant Breeder’s Rights Act 1994 made by this
Schedule applies in relation to applications lodged after the
commencement of the amendment.
Schedule 14
3 Transitional provision
(1) A form that, just before the commencement of this Schedule, was
approved under section 7 of the Plant Breeder’s Rights Act 1994 has
effect as if it had been approved, on that commencement, for the
purposes of each provision of that Act to which the form is relevant, by
the Secretary of the Department administering that Act.
(2) This item does not prevent the Secretary from approving another form
for the purposes of a provision of that Act.
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Endnotes
Endnote 3—Application, saving and transitional provisions
82 Plant Breeder’s Rights Act 1994
Schedule 15
3 Saving
(1) A delegation in force under section 59 of the Plant Breeder’s Rights Act
1994 immediately before the commencement of this Schedule has effect
on and after that commencement as if it had been made on that
commencement.
(2) This item does not prevent the revocation or variation of the delegation
after that commencement.
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Endnotes
Endnote 4—Uncommenced amendments
Plant Breeder’s Rights Act 1994 83
Endnote 4—Uncommenced amendments
This endnote sets out amendments of the Plant Breeder’s Rights Act 1994 that
have not yet commenced.
There are no uncommenced amendments.
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Endnotes
Endnote 5—Misdescribed amendments
84 Plant Breeder’s Rights Act 1994
Endnote 5—Misdescribed amendments
This endnote sets out amendments of the Plant Breeder’s Rights Act 1994 that
have been misdescribed.
There are no misdescribed amendments.
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