1Short title
This Act may be cited as the Plant Breeder’s Rights Act 1994.
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This Act may be cited as the Plant Breeder’s Rights Act 1994.
Subject to subsection (2), the provisions of this Act commence on a day to be fixed by Proclamation.
If a provision of this Act does not commence under subsection (1) within the period of 6 months commencing on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.
In this Act, unless the contrary intention appears:
1991 Act of the Convention means the Act of the International Convention for the Protection of New Varieties of Plants, done at Geneva on 19 March 1991, as that Act is in force for Australia from time to time.
The text of the 1991 Act of the Convention is set out in Australian Treaty Series 2000 No. 6 ([2000] ATS 6). In 2018, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Act of the Convention means:
the Act of the International Convention for the Protection of New Varieties of Plants, done at Geneva on 23 October 1978, as that Act is in force for Australia from time to time; or
the 1991 Act of the Convention; or
any other Act of that Convention determined by the Minister under subsection (1A), as that Act is in force for Australia from time to time.
The text of the Act mentioned in paragraph (a) is set out in Australian Treaty Series 1989 No. 2 ([1989] ATS 2). In 2018, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
address has a meaning affected by subsection (2).
applicant, in relation to an application, means the person currently shown in the application as the person making the application.
application means an application under section 24 for PBR in a plant variety to which this Act extends.
approved form, in relation to a provision of this Act, means a form approved in an instrument under subsection (1B) for the purposes of that provision.
ART means the Administrative Review Tribunal.
ART Act means the Administrative Review Tribunal Act 2024.
biosecurity control order has the same meaning as in the Biosecurity Act 2015.
biosecurity response zone has the same meaning as in the Biosecurity Act 2015.
biosecurity response zone determination has the same meaning as in the Biosecurity Act 2015.
breeder, in relation to a new plant variety, means:
subject to paragraph (c), if the variety was bred by one person only—the person; or
subject to paragraph (c), if the variety was bred by 2 or more persons (whether jointly or independently and whether at the same time or different times)—each of those persons; or
if the variety was bred:
by a person in the course of performing duties or functions as a member or employee of a body (whether incorporate or unincorporate); or
by 2 or more persons in the course of performing duties as a member or employee of such a body;
the body of which that person or each of those persons is a member or employee;
and includes any person or body that is the successor in title to the person referred to in paragraph (a), to any of the persons referred to in paragraph (b) or the body referred to in paragraph (c).
commercial‑in‑confidence has the meaning given by subsection 41B(4).
conditioning, in relation to propagating material of a plant variety, means:
cleaning, coating, sorting, packaging or grading of the material; or
any other similar treatment;
undertaken for the purpose of preparing the material for propagation or sale.
contracting party means a State, or an intergovernmental organisation, in relation to which Australia has obligations under an Act of the Convention.
dependent plant variety, in relation to another plant variety in which a person holds PBR in Australia, means a plant variety over which PBR in the other plant variety extends under section 13.
essential characteristics, in relation to a plant variety, means heritable traits that are determined by the expression of one or more genes, or other heritable determinants, that contribute to the principal features, performance or value of the variety.
essentially derived, in relation to a plant variety, has the meaning given by section 4.
exclusive licensee of the grantee of PBR in a plant variety means a licensee under a licence granted by the grantee that confers on the licensee, or on the licensee and persons authorised by the licensee, PBR in the plant variety to the exclusion of the grantee and all other persons.
Federal Court means the Federal Court of Australia.
genetic resource centre means a place that the Registrar declares to be a genetic resource centre under subsection 70(1).
grantee:
in relation to PBR in a plant variety—means the person currently entered on the Register as the holder of that right in that variety; and
in relation to PBR in a plant variety declared to be an essentially derived variety of another plant variety—includes the person currently entered on the Register as the holder of that right in relation to that other plant variety.
For declarations of essential derivation, see sections 40 and 41D.
hearing period has the meaning given by subsection 41C(3).
herbarium means the organisation that the Registrar declares to be the herbarium under section 71.
hybrid means a plant that is a combination of 2 or more genotypes of the same or different taxa but excluding a combination comprising a scion grafted on to a root stock.
legal practitioner means a barrister or solicitor of the High Court or of the Supreme Court of a State or Territory.
PBR means:
in relation to a plant variety registered (or to be registered) in Australia under this Act—the plant breeder’s right specified in section 11; or
in relation to a plant variety registered (or to be registered) in another contracting party—a plant breeder’s right, corresponding to the right specified in section 11, conferred under the law of that contracting party; or
in relation to a plant variety registered (or to be registered) in a foreign country that is not a contracting party—a plant breeder’s right, corresponding to the right specified in section 11, conferred under the law of that foreign country.
PBR office means place of work of the Registrar or a person who is engaged under the Public Service Act 1999 or otherwise for or on behalf of the Commonwealth and whose duties involve providing assistance to the Registrar.
PBR sub‑office means place of work in a single State of the Registrar or a person who is engaged under the Public Service Act 1999 or otherwise for or on behalf of the Commonwealth and whose duties involve providing assistance to the Registrar.
plant includes all fungi and algae but does not include bacteria, bacteroids, mycoplasmas, viruses, viroids and bacteriophages.
plant class, for the purpose of variety denomination, means a class consisting of all plants:
that belong to a single botanical genus; or
that belong to a group of closely related genera;
that is specified from time to time as a plant class in the Registrar’s List of Plant Classes maintained under subsection 61(1A).
plant variety means a plant grouping (including a hybrid):
that is contained within a single botanical taxon of the lowest known rank; and
that can be defined by the expression of the characteristics resulting from the genotype of each individual within that plant grouping; and
that can be distinguished from any other plant grouping by the expression of at least one of those characteristics; and
that can be considered as a functional unit because of its suitability for being propagated unchanged.
Plant groupings for the purposes of this definition include genetically modified plant groupings. See section 6.
preferred means:
in relation to lodging a document with, or giving a document to, the Registrar—means the means specified under subsection 72C(4); or
in relation to paying a fee—means the means specified under subsection 80A(4).
process, in relation to the reproduction of propagating material, of a plant variety does not include:
the development of a cell or tissue or a plant part into a plant of that variety; or
the growth of a plant into a larger plant of that variety.
propagating material, in relation to a plant of a particular plant variety, means any part or product from which, whether alone or in combination with other parts or products of that plant, another plant with the same essential characteristics can be produced.
propagation, in relation to a living organism or its components, means the growth, culture or multiplication of that organism or component, whether by sexual or asexual means.
Register means the Register of Plant Varieties kept under section 61.
Registrar means the Registrar of Plant Breeder’s Rights.
release from biosecurity control has the same meaning as in the Biosecurity Act 2015.
relevant proceedings, in relation to PBR in a plant variety, means proceedings in a court, or proceedings (within the meaning of the ART Act) in the ART, relating to:
the grant of the PBR; or
the infringement of the PBR; or
a decision to revoke, or not to revoke, the PBR.
reproduction, in relation to propagating material of a plant of a particular variety, means any process, whereby the number of units of that propagating material that have the capacity to grow into independent plants is multiplied.
sell includes letting on hire and exchanging by way of barter.
subject to biosecurity control has the same meaning as in the Biosecurity Act 2015.
successor means:
in relation to a breeder of a plant variety—a person to whom the right of the breeder to make application for PBR in that variety has been assigned, or transmitted by will or by operation of law; and
in relation to a grantee of PBR—a person to whom that right has been assigned, or transmitted by will or by operation of law.
synonym, in relation to the name of a plant variety, means a name that:
is included in an application in addition to the name of the variety; and
is a name by which the variety will be known or sold in Australia.
test growing includes a comparative test growing.
Union means the Union for the Protection of New Varieties of Plants as defined in Article 1 of the 1991 Act of the Convention.
will includes a codicil.
Act of the Convention
The Minister may, by legislative instrument, make a determination for the purposes of paragraph (c) of the definition of Act of the Convention in subsection (1).
The Registrar may, by writing, approve a form for the purposes of a provision of this Act.
Electronic address
After the time specified in the regulations, a reference in this Act to an address includes a reference to an electronic address.
The time specified under subsection (2) must be later than the day on which the regulations are registered under the Legislation Act 2003.
Subsection (2) of this section does not apply to a reference to an address in subsection 26(2).
For the purposes of this Act, the question of whether an electronic address is in Australia is to be determined in accordance with the regulations.
For the purposes of this Act, the question of whether an electronic address is in New Zealand is to be determined in accordance with the regulations.
A plant variety is an essentially derived variety of another plant variety if:
it is predominantly derived from that other plant variety; and
it retains the essential characteristics that result from the genotype or combination of genotypes of that other variety; and
it does not exhibit any important (as distinct from cosmetic) features that differentiate it from that other variety.
For declarations of essential derivation, see sections 40 and 41D.
A reference in this Act to breeding, in relation to a new plant variety, includes a reference to the discovery of a plant together with its use in selective propagation so as to enable the development of the new plant variety.
If a plant is discovered by one person but used in selective propagation by another so as to enable the development of a new plant variety, those persons are together taken to be the joint breeders of the new plant variety.
For the purposes of this Act, an organism may be treated as constituting a plant grouping within a single botanical taxon despite the fact that the genome of the plants in that plant grouping has been altered by the introduction of genetic material that is not from plants.
In this Act, a reference to an approved person is a reference to a person who, on the basis of the person’s qualifications and experience, the Registrar has designated, by instrument in writing, to be such a person in relation to one of more species of plant.
The Registrar must, from time to time, cause lists of all persons who are approved persons in relation to particular species of plant to be published in the Plant Varieties Journal.
This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.
Nothing in this Act renders the Crown, in any of its capacities, liable to be prosecuted for an offence.
Chapter 2 (other than Part 2.5) of the Criminal Code applies to all offences against this Act.
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
This Act does not extend to Norfolk Island unless the regulations prescribe.
Nothing in this Act requires or permits the granting of PBR in a plant variety unless:
if Australia is a party to an Act of the Convention—the grant is appropriate to give effect to the obligations of Australia under that Act; or
the breeding of the plant variety constitutes an invention for the purpose of paragraph 51(xviii) of the Constitution.
Subject to sections 16, 17, 18, 19 and 23, PBR in a plant variety is the exclusive right, subject to this Act, to do, or to license another person to do, the following acts in relation to propagating material of the variety:
produce or reproduce the material;
condition the material for the purpose of propagation;
offer the material for sale;
sell the material;
import the material;
export the material;
stock the material for the purposes described in paragraph (a), (b), (c), (d), (e) or (f).
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).
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