PLANT BREEDER'S RIGHTS ACT 1994 - NOTES

PLANT BREEDER'S RIGHTS ACT 1994 - NOTES

No. 110, 1994

Compilation No. 22

Compilation date: 1 March 2023

Includes amendments up to: Act No. 13, 2021

Registered: 8 March 2023

About this compilation

This compilation

This is a compilation of the Plant Breeder's Rights Act 1994 that shows the text of the law as amended and in force on 1 March 2023 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self-repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Contents

Part 1--Preliminary

1 Short title

2 Commencement

3 Definitions

4 Definition of essentially derived

5 Definition of breeding

6 Genetic modification

8 Approved persons

9 Act to bind Crown

9A Application of the Criminal Code

9B Extension to Norfolk Island

10 Extent of Act

Part 2--Plant breeder's right

11 General nature of PBR

12 Extension of PBR to cover essentially derived varieties

13 Extension of PBR to cover certain dependent plant varieties

14 Extension of PBR to harvested material in certain circumstances

15 Extension of PBR to products obtained from harvested material in certain circumstances

16 Certain acts done for private, experimental or breeding purposes do not infringe PBR

17 Conditioning and use of farm saved seed does not infringe PBR

18 Restrictions on exercise of PBR in certain circumstances

19 Reasonable public access to plant varieties covered by PBR

20 PBR is personal property

21 Registrar must be notified of an assignment of PBR

22 Duration of PBR

23 Exhaustion of PBR

Part 3--Application for plant breeder's right

Division 1--The making of the application

24 Right to apply for PBR

25 Right to apply for PBR is personal property

26 Form of application for PBR

27 Names of new plant varieties

28 Applications to be given priority dates

29 Priority dates arising from foreign application

30 Acceptance or rejection of applications

31 Requests for variation of application

32 Notification of decisions on requests to vary application

33 Withdrawal of application

Division 2--Dealing with the application after its acceptance

34 Detailed description in support of application to be given to Registrar

35 Objection to application for PBR

36 Inspection of applications and objections

37 Test growing of plant varieties

38 Characteristics of plant varieties bred or test grown outside Australia

Division 3--Provisional protection

39 Provisional protection

Division 4--Essential derivation

40 Essential derivation for PBR-protected varieties--declaration

41 Essential derivation for PBR-protected varieties--test growing

41A Essential derivation for non-PBR-protected second varieties--application for declaration

41B Essential derivation for non-PBR-protected varieties--publication of applications

41C Essential derivation for non-PBR-protected varieties--opportunity to be heard

41D Essential derivation for non-PBR-protected varieties--declaration

41E Essential derivation for non-PBR-protected varieties--test growing

41F Essential derivation for non-PBR-protected varieties--application lodged for PBR in second variety

Part 4--The grant and revocation of Plant Breeder's Right

Division 1--Grant of Plant Breeder's Right

43 Registrable plant varieties

44 Grant of PBR

45 Grant of PBR to be exclusive

46 Grant of PBR to be entered on Register

47 Notice of grant of PBR

48 Effect of grant of PBR

49 PBR may be subject to conditions

Division 2--Revocation of Plant Breeder's Right or declaration of essential derivation

50 Revocation of PBR

51 Entry of particulars of revocation

52 Surrender of PBR

Part 5--Enforcement of Plant Breeder's Right

53 Infringement of PBR

54 Actions for infringement

54A Counterclaims to actions for infringement

55 Declarations as to non-infringement

56 Jurisdiction of the Federal Court

56A Jurisdiction of Federal Circuit and Family Court of Australia (Division 2)

57 Innocent infringement

57A Application for relief from unjustified threats

57B Court's power to grant relief

57C Counterclaim for infringement

57D Notification of PBR in a plant variety not a threat

57E Liability of legal practitioner

Part 6--Administration

58 Registrar of Plant Breeder's Rights

59 Delegation

60 Certain persons not to acquire PBR

61 Register of Plant Varieties

62 Inspection of Register

62A Registrar's power to rectify Register

Part 8--Miscellaneous

68 Public notices

69 Notices inviting submissions in respect of certain regulations

70 Genetic resource centres

71 The herbarium

72 Agents may act in matters relating to PBR

72A Notifications by Registrar under this Act or regulations

72B Manner in which documents may be lodged with or given to Registrar

72C Approved means of lodging or giving documents

73 Service of documents

74 Infringement offences

75 Offences other than infringement offences

76 Conduct by directors, employees and agents

76A Doing act when PBR office reopens after end of period otherwise provided for doing act

76B Computerised decision-making

77 Applications for review

78 Repeal

79 Compensation for acquisition of property

80 Regulations

80A Approved means of paying a fee

Part 9--Transitional

81 Definitions

82 Plant variety rights under old Act to be treated as PBR under this Act

83 Applications for plant variety rights lodged and criminal proceedings begun before commencing day

84 Other applications and proceedings under old Act

86 Register of Plant Varieties

Endnotes

Endnote 1--About the endnotes

Endnote 2--Abbreviation key

Endnote 3--Legislation history

Endnote 4--Amendment history

Endnotes

Endnote 1--About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1--About the endnotes

Endnote 2--Abbreviation key

Endnote 3--Legislation history

Endnote 4--Amendment history

Abbreviation key--Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history--Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe how an amendment is to be made. If, despite the misdescription, the amendment can be given effect as intended, then the misdescribed amendment can be incorporated through an editorial change made under section  15V of the Legislation Act 2003.

If a misdescribed amendment cannot be given effect as intended, the amendment is not incorporated and "(md not incorp)" is added to the amendment history.

Endnote 2--Abbreviation key

Endnote 3--Legislation history

Endnote 4--Amendment history