Commonwealth Numbered Acts

PLANT BREEDER'S RIGHTS ACT 1994 No. 110, 1994 - SECT 38

38.(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

   (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.