Commonwealth Consolidated Acts

PLANT BREEDER'S RIGHTS ACT 1994 - SECT 37

             (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;

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.

          (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.

             (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.