Commonwealth Numbered Acts

PLANT BREEDER'S RIGHTS ACT 1994 No. 110, 1994 - SECT 19

19.(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.

(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

   (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.