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This is a Bill, not an Act. For current law, see the Acts databases.
2002
The Parliament of
the
Commonwealth of
Australia
THE
SENATE
As read a third
time
Plant
Breeder’s Rights Amendment Bill
2002
No. ,
2002
A Bill for an Act to
amend the Plant Breeder’s Rights Act 1994, and for related
purposes
Contents
Part 1—Amendments 3
Part 2—Application
provisions 13
THIS bill originated in the Senate; and, having this day passed, is now
ready for presentation to the House of Representatives for its
concurrence.
HARRY EVANS
Clerk of the Senate
The Senate
18 November 2002
A Bill for an Act to amend the Plant Breeder’s
Rights Act 1994, and for related purposes
The Parliament of Australia enacts:
This
Act may be cited as the Plant Breeder’s Rights Amendment Act
2002.
This Act commences on the day after it receives the Royal
Assent.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
1A Subsection 3(1)
Insert:
indigenous means:
(a) a member of the Aboriginal race of Australia; or
(b) a descendant of the indigenous inhabitants of the Torres Strait
Islands.
1 Subsection 3(1) (definition of
synonym)
Repeal the definition, substitute:
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.
2 Subsection 3(1)
Insert:
test growing includes a comparative test growing.
3 At the end of
section 11
Add:
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).
4 Section 18
Repeal the section, substitute:
(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.
5 At the end of
section 23
Add:
(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.
6 Paragraph 26(2)(g)
Repeal the paragraph, substitute:
(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
7 At the end of subsection
26(2)
Add:
Note: The information given under paragraph (ga) is not
available to the public under section 36.
8 Paragraph 27(2)(b)
Omit “, by which the variety will also be known and sold in
Australia”.
9 After subsection 27(3)
Insert:
(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.
10 Subsection 27(4)
Omit “A name under subsection (1), or a synonym under
subsection (3)”, substitute “A name (including a
synonym)”.
11 Paragraph 27(5)(e)
Omit “Trade Marks Act 1955”, substitute “Trade
Marks Act 1995”.
12 Subsections 27(5), (6) and
(7)
Omit “A name under subsection (1), or a synonym under
subsection (3)”, substitute “A name (including a
synonym)”.
13 Subsections 29(1) and
(2)
Repeal the subsections, substitute:
(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).
14 Subsections 29(3) and
(4)
Omit “to the priority date referred to in subsection (2)”,
substitute “to have the date of lodgment of the foreign application
treated as the priority date for the purposes of the local
application”.
15 Paragraph 30(5)(b)
Omit “the application” (first occurring), substitute “the
applicant”.
16 At the end of
section 34
Add:
(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.
17 At the end of
section 36
Add:
(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.
18 Subsection 37(1)
Omit all the words after “relates, the” (other than the note),
substitute:
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.
19 After subsection 37(2)
Insert:
(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.
(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.
20 Paragraphs 37(5)(b) and
(c)
Repeal the paragraphs, substitute:
(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.
21 After paragraph 39(2)(a)
Insert:
(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
22 After paragraph 39(2)(b)
Insert:
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);
23 Subsections 43(5) and
(6)
Omit “propagating or harvested material”, substitute
“plant material”.
24 At the end of subsection
43(6)
Add:
Note: For the definition of sell see
subsection 3(1).
25 Subsection 43(7)
Omit “propagating or harvested material”, substitute
“plant material”.
26 After subsection 43(7)
Insert:
(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 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.
27 Paragraph 43(8)(b)
Repeal the paragraph, substitute:
(b) the application is proceeding, or has led, to the grant of
PBR.
28 At the end of
section 43
Add:
(10) In this section:
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.
29 Paragraph 48(2)(c)
Omit “section 39”, substitute
“section 40”.
30 Subsection 49(1)
Omit “that the Minister proposes to make, or an existing grant of
PBR”, substitute “, whether proposed or made”.
31 After paragraph 50(2)(a)
Insert:
(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
32 After subsection 53(1)
Insert:
(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).
33 Subsection 54(1)
Omit “may be begun in the Court”, substitute “may be
begun in the Court only by the grantee”.
34 After paragraph 63(2)(a)
Insert:
(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
34A Paragraph 64(1)(e)
Repeal the paragraph, substitute:
(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.
34B Subsection 65(1)
Omit “and (e)”, substitute “, (e), (f) and
(g)”.
34C Subsection 67(2)
Repeal the subsection, substitute:
(2) At a meeting of the Advisory Committee, 5 members constitute a
quorum.
35 Subsection 64(4)
Omit “2”, substitute “3”.
36 Paragraph 77(1)(a)
Omit “subsection 49(1)”, substitute “subsection
49(2)”.
37 After subparagraph
77(1)(b)(viii)
Insert:
(viiia) under paragraph 37(2B)(b) not to proceed further with an
application, objection or request for revocation; or
38 Article 14(1)(a)(vii) of the Convention as
set out in Schedule 1
Omit “(iv)”, substitute “(vi),”.
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.
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.