Commonwealth: Plant Breeder's Rights Act 1994 (Cth)

Plant Breeder's Rights Act 1994 No. 110, 1994 Compilation No. 23 Compilation date: 14 October 2024 Includes amendments: Act No. 39, 2024 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 14 October 2024 (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 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 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 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 Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.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 An Act to provide for the granting of proprietary rights to breeders of certain new varieties of plants and fungi, to repeal the Plant Variety Rights Act 1987, and for related purposes Part 1—Preliminary 1 Short title This Act may be cited as the Plant Breeder's Rights Act 1994. 2 Commencement (1) Subject to subsection (2), the provisions of this Act commence on a day to be fixed by Proclamation. (2) 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. 3 Definitions (1) 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. Note: 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: (a) 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 (b) the 1991 Act of the Convention; or (c) 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. Note: 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: (a) subject to paragraph (c), if the variety was bred by one person only—the person; or (b) 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 (c) if the variety was bred: (i) by a person in the course of performing duties or functions as a member or employee of a body (whether incorporate or unincorporate); or (ii) 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: (a) cleaning, coating, sorting, packaging or grading of the material; or (b) 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: (a) 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 (b) 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. Note: 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: (a) 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 (b) 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 (c) 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: (a) that belong to a single botanical genus; or (b) 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): (a) that is contained within a single botanical taxon of the lowest known rank; and (b) that can be defined by the expression of the characteristics resulting from the genotype of each individual within that plant grouping; and (c) that can be distinguished from any other plant grouping by the expression of at least one of those characteristics; and (d) that can be considered as a functional unit because of its suitability for being propagated unchanged. Note: Plant groupings for the purposes of this definition include genetically modified plant groupings. See section 6. preferred means: (a) in relation to lodging a document with, or giving a document to, the Registrar—means the means specified under subsection 72C(4); or (b) 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: (a) the development of a cell or tissue or a plant part into a plant of that variety; or (b) 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: (a) the grant of the PBR; or (b) the infringement of the PBR; or (c) 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: (a) 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 (b) 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: (a) is included in an application in addition to the name of the variety; and (b) 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 (1A) 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). (1B) The Registrar may, by writing, approve a form for the purposes of a provision of this Act. Electronic address (2) After the time specified in the regulations, a reference in this Act to an address includes a reference to an electronic address. (3) The time specified under subsection (2) must be later than the day on which the regulations are registered under the Legislation Act 2003. (4) Subsection (2) of this section does not apply to a reference to an address in subsection 26(2). (5) 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. (6) 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. 4 Definition of essentially derived A plant variety is an essentially derived variety of another plant variety if: (a) it is predominantly derived from that other plant variety; and (b) it retains the essential characteristics that result from the genotype or combination of genotypes of that other variety; and (c) it does not exhibit any important (as distinct from cosmetic) features that differentiate it from that other variety. Note: For declarations of essential derivation, see sections 40 and 41D. 5 Definition of breeding (1) 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. (2) 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. 6 Genetic modification 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. 8 Approved persons (1) 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. (2) 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. 9 Act to bind Crown (1) 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. (2) Nothing in this Act renders the Crown, in any of its capacities, liable to be prosecuted for an offence. 9A Application of the Criminal Code Chapter 2 (other than Part 2.5) of the Criminal Code applies to all offences against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. 9B Extension to Norfolk Island This Act does not extend to Norfolk Island unless the regulations prescribe. 10 Extent of Act Nothing in this Act requires or permits the granting of PBR in a plant variety unless: (a) 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 (b) the breeding of the plant variety constitutes an invention for the purpose of paragraph 51(xviii) of the Constitution. Part 2—Plant breeder's right 11 General nature of PBR 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: (a) produce or reproduce the material; (b) condition the material for the purpose of propagation; (c) offer the material for sale; (d) sell the material; (e) import the material; (f) export the material; (g) stock the material for the purposes described in paragraph (a), (b), (c), (d), (e) or (f). Note: 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). 12 Extension of PBR to cover essentially derived varieties Subject to section 23 (exhaustion of PBR), if PBR is granted in a plant variety (the initial variety), and a declaration is made that another plant variety is essentially derived from the initial variety, the right granted in the initial variety extends, with effect from the date of declaration, to that other plant variety. Note: For declarations of essential derivation, see sections 40 and 41D. 13 Extension of PBR to cover certain dependent plant varieties Subject to section 23, if PBR is granted in a plant variety (the initial variety), the right extends to: (a) any other plant variety that: (i) is not clearly distinguishable from the initial variety; and (ii) is clearly distinguishable from any plant variety that was a matter of common knowledge at the time of the grant of PBR in the initial variety; and (b) any other plant variety that cannot be reproduced except by the repeated use of the initial variety or of a variety referred to in paragraph (a); whether or not that other plant variety was in existence at the time PBR was granted in the initial variety. 14 Extension of PBR to harvested material in certain circumstances (1) If: (a) propagating material of a plant variety covered by PBR is produced or reproduced without the authorisation of the grantee; and (b) the grantee does not have a reasonable opportunity to exercise the grantee's right in relation to the propagating material; and (c) material is harvested from the propagating material; section 11 operates as if the harvested material were propagating material. (2) Subsection (1) applies to so much of the material harvested by a farmer from propagating material conditioned and reproduced in the circumstances set out in subsection 17(1) as is not itself required by the farmer, for the farmer's own use, for reproductive purposes. 15 Extension of PBR to products obtained from harvested material in certain circumstances If: (a) propagating material of a plant variety covered by PBR is produced or reproduced without authorisation of the grantee; and (b) the grantee does not have a reasonable opportunity to exercise the grantee's rights in relation to the propagating material; and (c) material is harvested from plants grown from the propagating material but the grantee does not have, in the circumstances set out in section 14, a reasonable opportunity of exercising the grantee's rights in the harvested material; and (d) products are made from the harvested material; section 11 operates as if those products were propagating material. 16 Certain acts done for private, experimental or breeding purposes do not infringe PBR Any act done in relation to a plant variety covered by PBR that is done: (a) privately and for non‑commercial purposes; or (b) for experimental purposes; or (c) for the purpose of breeding other plant varieties; does not infringe the PBR. 17 Conditioning and use of farm saved seed does not infringe PBR (1) If: (a) a person engaged in farming activities legitimately obtains propagating material of a plant variety covered by PBR either by purchase or by previous operation of this section, for use in such activities; and (b) the plant variety is not included within a taxon declared under subsection (2) to be a taxon to which this subsection does not apply; and (c) the person subsequently harvests further propagating material from plants grown from that first‑mentioned propagating material; the PBR is not infringed by: (d) the conditioning of so much of that further propagating material as is required for the person's use for reproductive purposes; or (e) the reproduction of that further propagating material. (2) The regulations may declare a particular taxon to be a taxon to which subsection (1) does not apply. 18 Restrictions on exercise of PBR in certain circumstances (1) If: (a) a person is authorised by or under a law of the Commonwealth or of a State or Territory to do an act referred to in a paragraph of section 11 in relation to propagating material of a plant variety; and (b) the act is one which (apart from this provision) would require authorisation from the grantee of PBR in the plant variety, or an exclusive licensee of the grantee; and (c) before the person does the act, the person either pays equitable remuneration to the grantee, or an exclusive licensee of the grantee, in respect of the act or arranges for the payment of such remuneration; and (d) the person does the act; then neither the grantee, nor any exclusive licensee of the grantee, nor any other person authorised by the grantee or exclusive licensee, is entitled to exercise PBR in the plant variety against the person in respect of that act. (2) To avoid doubt, subsection (1) does not limit the operation of section 17 in relation to the conditioning or reproduction of propagating material in the circumstances referred to in that section. (3) In this section: equitable remuneration, in relation to an act done in relation to propagating material of a plant variety, means an amount: (a) that is agreed between the person proposing to undertake the act and the grantee of PBR in the plant variety, or an exclusive licensee of the grantee; or (b) if agreement cannot be reached under paragraph (a)—determined by a court of competent jurisdiction to constitute equitable remuneration in relation to the act. 19 Reasonable public access to plant varieties covered by PBR (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 Registrar may, on behalf of the grantee, in accordance with subsections (4) to (10), license a person whom the Registrar 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 Registrar considers appropriate and on such terms and conditions (including the provision of reasonable remuneration to the grantee) as the Registrar 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 Registrar 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. (5A) An address given under paragraph (5)(c) must be an address in Australia or New Zealand. Note: After the time specified in regulations made for the purposes of subsection 3(2), the address may be an electronic address: see subsections 3(2), (5) and (6). (6) The Registrar must: (a) give the grantee a copy of the request; and (b) by notification to the grantee, invite the grantee to give the Registrar, within 30 days after giving the request, a written statement of the reasons the Registrar 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 Registrar 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, notify the grantee, and the person making the request, of the decision. Note: A decision under this subsection is reviewable by the ART under section 77. (8) If the Registrar proposes to exercise a power under subsection (3) in relation to a plant variety, the Registrar must give public notice: (a) identifying the variety; and (b) setting out particulars of any licence the Registrar proposes to grant; and (c) inviting persons to apply in writing to the Registrar, within 30 days of the publication of the notice, to be granted that licence. (9) The Registrar must not grant any such licence unless: (a) the Registrar has considered all applications made in response to the invitation; and (b) at least one month before granting any such licence, the Registrar has: (i) notified 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 Registrar: (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 Registrar 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 ART under section 77. (11) This section does not apply in relation to a plant variety in respect of which the Registrar 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 ART under section 77. 20 PBR is personal property (1) PBR is personal property and, subject to any conditions imposed under section 49, is capable of assignment, or of transmission by will or by operation of law. (2) An assignment of PBR (otherwise than because of the order of a court) does not have effect unless it is in writing signed by, or on behalf of, the assignor and assignee. (3) If a grantee of PBR in a plant variety gives another person a licence in that right, the licence binds every successor in title to the interest of that grantee to the same extent as it was binding on that grantee of the PBR. Note 1: The Personal Property Securities Act 2009 applies to PBR, and any licence in PBR, as intellectual property (see paragraph (d) of the definition of that phrase in section 10 of that Act). That Act deals with security interests in personal property, including intellectual property and intellectual property licences. Note 2: Section 106 of the Personal Property Securities Act 2009 corresponds to subsection 20(3) of this section. Section 106 of that Act provides for security agreements in relation to intellectual property licences (or sub‑licences) to be binding on successors in title to the licences (or sub‑licences). 21 Registrar must be notified of an assignment of PBR (1) If a person (the claimant) claims that PBR was assigned or transmitted to the claimant, the claimant must inform the Registrar in writing that the claimant has acquired that right, giving particulars of the manner in which that right was acquired, within 30 days after acquiring that right. (2) If the Registrar is satisfied that the right has been so assigned or transmitted, the Registrar must amend the Register by entering the name of the claimant as the holder of that right. (3) If the Registrar enters the name of the claimant on the Register as the holder of PBR, the Registrar must, within 30 days after entering the name, notify the claimant, and the person who was the holder before the entry was made, that the entry has been made. (4) If the Registrar is not satisfied that PBR has been assigned or transmitted to the claimant, the Registrar must, as soon as possible: (a) notify the claimant: (i) that the Registrar is not so satisfied; and (ii) of the reasons why the Registrar is not so satisfied; and (b) notify the person entered on the Register as the holder of the right: (i) of the particulars of the information given by the claimant; and (ii) that the Registrar is not so satisfied; and (iii) of the reasons why the Registrar is not so satisfied. (5) A claimant must include, in the notice to the Registrar informing of the assignment or transmission, an address in Australia or New Zealand for the service of documents in accordance with this Act. Note 1: After the time specified in regulations made for the purposes of subsection 3(2), the address may be an electronic address: see subsections 3(2), (5) and (6). Note 2: A decision under this section to amend or to refuse to amend the Register is reviewable by the ART under section 77. 22 Duration of PBR (1) Subject to subsections (4) and (5), PBR in a plant variety begins on the day that the grant of PBR in the variety is made. (2) Subject to subsections (3), (4) and (5), PBR in a plant variety lasts for: (a) in the case of trees and vines—25 years; and (b) for any other variety—20 years. (3) The regulations may provide that PBR in a plant variety included within a specified taxon lasts for a longer period than is specified in subsection (2). (4) PBR in a plant variety that is a dependent plant variety of another plant variety begins on: (a) the day that the grant of PBR in the other plant variety is made; or (b) the day that dependent variety comes into existence; whichever occurs last, and ends when PBR in the other variety ceases. (5) If: (a) PBR is held in a plant variety (the initial variety); and (b) another plant variety is declared to be an essentially derived variety of the initial variety; PBR in the initial variety extends to the essentially derived variety from the day on which that declaration is made until the day on which PBR in the initial variety ends. Note: For declarations of essential derivation, see sections 40 and 41D. 23 Exhaustion of PBR (1) PBR granted in a plant variety does not extend to any act referred to in section 11: (a) in relation to propagating material of the variety; or (b) in relation to propagating material of any essentially derived variety or dependent plant variety; that takes place after the propagating material has been sold by the grantee or with the grantee's consent unless that act: (c) involves further production or reproduction of the material; or (d) involves the export of the material: (i) to a country that does not provide PBR in relation to the variety; and (ii) for a purpose other than final consumption. (2) If: (a) a plant variety is declared to be an essentially derived variety of another plant variety (the initial variety); and (b) PBR in the essentially derived variety is held both by the grantee of PBR in the essentially derived variety and by the grantee of PBR in the initial variety; the reference in subsection (1) to propagating material sold by the grantee or with the grantee's consent is a reference to propagating material sold by, or with the consent of, both of the grantees referred to in paragraph (b). Note: For declarations of essential derivation to which this subsection applies, see section 40. (3) If, under subsection 18(1), equitable remuneration is paid, or arranged to be paid, to the grantee of PBR, or an exclusive licensee of the grantee, in a plant variety in respect of an act (the first act) in relation to propagating material of that variety before the person does the act, PBR in that variety does not extend to any later act (the later act) referred to in section 11 in relation to that propagating material unless the later act: (a) involves the further production or reproduction of that propagating material; or (b) involves the export of the material: (i) to a country that does not provide PBR in relation to the variety; and (ii) for a purpose other than final consumption. (4) To avoid doubt, nothing in subsection (1) or (3) prevents the exercise of the rights of the grantee of PBR in a plant variety in relation to any propagating material of that variety that is obtained by reproduction of the propagating material to which that subsection applies. Part 3—Application for plant breeder's right Division 1—The making of the application 24 Right to apply for PBR (1) A breeder of a plant variety may make application to the Registrar for the grant of a PBR in the variety. (2) The breeder can make the application whether or not: (a) the breeder is an Australian citizen; and (b) the breeder is resident in Australia; and (c) the variety was bred in Australia. (3) Subject to subsection (4), if 2 or more persons bred a plant variety jointly, those persons or some of them may make a joint application for that right. (4) If 2 or more persons bred a plant variety jointly, one of those persons is not entitled to apply for PBR in the variety otherwise than jointly with, or with the consent in writing of, each other of those persons. 25 Right to apply for PBR is personal property (1) The right of a breeder of a plant variety to apply for PBR is personal property and is capable of assignment and of transmission by will or by operation of law. (2) An assignment of a right to apply for PBR must be in writing signed by or on behalf of the assignor. Note: The Personal Property Securities Act 2009 deals with security interests in personal property, including a right to apply for PBR. 26 Form of application for PBR (1) An application for PBR in a plant variety must be in the approved form. (1A) Without limiting subsection (1), the approved form must require the inclusion of an address in Australia or New Zealand for service, being an address that is in accordance with the requirements of the approved form. Note: After the time specified in regulations made for the purposes of subsection 3(2), the address may be an electronic address: see subsections 3(2), (5) and (6). (2) The application must contain: (a) the name and address of the applicant; and (b) if the applicant is using an agent to make the application on the applicant's behalf—the name and address of the agent; and (c) if the applicant is the breeder of the variety—a statement of that effect; and (d) if the applicant is not the breeder of the variety—the name and address of the breeder and particulars of the assignment, or transmission by will or by operation of law, of the right to make the application; and (e) a brief description, or a brief description and photograph, of a plant of the variety sufficient to establish a prima facie case that the variety is distinct from other varieties of common knowledge; and (f) the name of the variety, having regard to the requirements of section 27, and any proposed synonym for that name; and (g) the name of the location at which the variety was bred; and (ga) the name of each variety (the parent variety) used in the breeding program including, in respect of each parent variety: (i) particulars of the names (including synonyms) by which the parent variety is known or sold in Australia; and (ii) particulars of any PBR granted in Australia or in any other contracting party; and (gb) a brief description of the manner in which the variety was bred; and (h) particulars of any application for, or grant of, rights of any kind in the variety in any other country; and (i) the name of an approved person who: (i) will verify the particulars in the application; and (ii) will supervise any test growing or further test growing of the variety required under section 37; and (iii) will verify a detailed description of the variety when such a description is supplied to the Registrar; (j) such other particulars (if any) as are required by the approved form. Note: The information given under paragraph (ga) is not available to the public under section 36. (4) An applicant must, before, or at the time of, lodging an application under this section, pay to the Commonwealth such application fee (if any) as is prescribed. 27 Names of new plant varieties (1) If PBR has not been granted in another contracting party in a plant variety before an application for that right in that variety is made in Australia, the name set out in the application must comply with subsections (4), (5), (6) and (7). (2) If, before making an application in Australia for PBR in a plant variety, PBR has been granted in that variety in another contracting party: (a) the name of the variety set out in the Australian application must be the name under which PBR was first granted in another contracting party; but (b) there may, and, if the name referred to in paragraph (a) does not comply with subsections (4), (5), (6) and (7) there must, also be included in the application a synonym, additional to the name of the variety. (3) The synonym must be a name determined in accordance with subsections (4), (5), (6) and (7) as if the variety had not been the subject of a grant of PBR in another contracting party. (3A) If, before making an application in Australia for PBR in a plant variety, PBR has not been granted in that variety in another contracting party, a synonym may also be included in the application. (4) A name (including a synonym), in respect of a plant variety, must be a word or words (whether invented or not) with or without the addition of either or both of the following: (a) a letter or letters that do not constitute a word; (b) a figure or figures. (5) A name (including a synonym), in respect of a plant variety must not: (a) be likely to deceive or cause confusion, including confusion with the name of another plant variety of the same plant class; or (b) be contrary to law; or (c) contain scandalous or offensive matter; or (d) be prohibited by regulations in force at the time of the application; or (e) be or include a trade mark that is registered, or whose registration is being sought, under the Trade Marks Act 1995, in respect of live plants, plant cells and plant tissues. (6) A name (including a synonym), in respect of a plant variety must comply with the International Code of Botanical Nomenclature and subsidiary codes. (7) A name (including a synonym), in respect of a plant variety must not consist of, or include: (a) the name of a natural person living at the time of the application unless the person has given written consent to the name of the variety; or (b) the name of a natural person who died within the period of 10 years before the application unless the legal personal representative of the person has given written consent to the name of the variety; or (c) the name of a corporation or other organisation, unless the corporation or other organisation has given its written consent to the name of the variety. 28 Applications to be given priority dates (1) The Registrar must ensure that each application for PBR is given a priority date. (2) The priority date is, unless section 29 applies in relation to the application, the date on which the application was lodged with the Registrar or, if another date is determined under the regulations for the application, the date determined. (3) If 2 or more applications are made for PBR in the same plant variety, the Registrar must first consider the application having the earlier priority date. 29 Priority dates arising from foreign application (1) If: (a) a person has lodged an application for PBR in a plant variety in one or more contracting parties other than Australia; and (b) within a period of 12 months after the date that the earliest of those applications (the foreign application) was lodged, the person lodges an application in Australia (the local application) for PBR in the variety; and (c) the local application is accompanied with a claim to have the date of lodgment of the foreign application treated as the priority date for the purposes of the local application; and (d) the local application is accepted; the person is entitled to have the date of lodgment of the foreign application treated as the priority date for the purposes of the local application, subject to subsections (3) and (4). (3) The entitlement of the person to have the date of lodgment of the foreign application treated as the priority date for the purposes of the local application is conditional on the person lodging with the Registrar, within 3 months of making the local application, a copy of the documents that constituted the foreign application, certified by the Authority that received the foreign application to be a true copy of the documents. (4) The entitlement of the person to have the date of lodgment of the foreign application treated as the priority date for the purposes of the local application is conditional on the person providing to the Registrar, within a period of 5 years after the making of the foreign application, such further particulars in relation to the plant variety as are required to complete the consideration of the local application. 30 Acceptance or rejection of applications (1) The Registrar must, as soon as practicable after an application for PBR is lodged in a plant variety, decide whether to accept or reject the application. (2) If the Registrar is satisfied that: (a) no other application has, or, if the application were to meet the requirements of paragraphs (b) and (c), would have, an earlier priority date in the variety; and (b) the application complies with the requirements of section 26; and (c) the application establishes a prima facie case for treating the plant variety as distinct from other varieties; the Registrar must accept the application. (3) If the Registrar is not satisfied of all of the matters referred to in subsection (2), the Registrar must reject the application. (4) If the Registrar decides to accept the application, the Registrar must: (a) notify the applicant that the application has been accepted; and (b) as soon as possible after notifying the applicant—give public notice of the acceptance of the application. (5) If the Registrar decides to reject an application, the Registrar must: (a) notify the applicant of the rejection and of the reasons for the rejection; and (b) as soon as possible after notifying the applicant—give public notice of the rejection of the application. Note: A decision under this section to accept or reject an application is reviewable by the ART under section 77. 31 Requests for variation of application (1) If: (a) after an application for PBR in a plant variety has been accepted; but (b) before concluding the examination of that application (including the subsequent detailed description of that variety) and of any objection to the application; the right of the applicant to apply for PBR in a particular plant variety is assigned to, or has been transmitted by will or operation of law to, another person, that other person may request the Registrar, in writing, to vary the application so that that other person is shown as the applicant. (2) If the Registrar is satisfied that the right to apply for PBR in a particular plant variety has been assigned to, or has been transmitted by will or operation of law to, to a particular person, the Registrar must vary the application so that that person is shown as the applicant. (3) A request by a person under subsection (1) must give an address in Australia or New Zealand for the service of documents on the person for the purposes of this Act. Note: After the time specified in regulations made for the purposes of subsection 3(2), the address may be an electronic address: see subsections 3(2), (5) and (6). (4) If the Registrar complies with a request under subsection (1) and the address for the service of documents that is given in connection with that request is different from the address contained in the application as the address for service of documents on the applicant, the Registrar must vary the application so that the address so given is shown as the address for service of documents on the applicant. (5) If: (a) after an application for PBR in a plant variety has been accepted; but (b) before concluding the examination of that application (including the subsequent detailed description of that variety) and of any objection to the application; the applicant requests the Registrar, in writing, to vary the application in any other respect other than that referred to in subsection (1), the Registrar may, in his or her discretion, vary the application in accordance with the request. (6) Despite the previous provisions of this section, the Registrar is not obliged or permitted to vary an application in response to a request under this section unless the person making the application for the variation has paid to the Commonwealth the application variation fee that is prescribed for the purposes of this section. Note: A decision under this section to vary or to refuse to vary an application is reviewable by the ART under section 77. 32 Notification of decisions on requests to vary application (1) If the Registrar varies an application in accordance with a request under subsection 31(1) or (5), the Registrar must, as soon as practicable, notify the person making the request that the application has been so varied. (2) If the Registrar rejects a request under subsection 31(1) or (5), the Registrar must, as soon as practicable, notify the person making the request: (a) that the request has been rejected; and (b) of the reasons for the rejection. (3) If the Registrar rejects a request under subsection 31(1), the Registrar must, as soon as practicable, also notify the applicant: (a) of the particulars of the request; and (b) that the request has been rejected; and (c) of the reasons for the rejection. (4) If the Registrar varies an application in accordance with a request under subsection 31(1), the Registrar must, as soon as practicable, also notify particulars of the variation to the person who was the applicant before the variation was made. (5) If an application: (a) is varied because of a request under subsection 31(1); or (b) is varied because of a request under subsection 31(5) in a significant respect; the Registrar must, as soon as practicable, give public notice of particulars of the variation. 33 Withdrawal of application (1) An application may be withdrawn by the applicant at any time. (2) If an application is withdrawn after public notice of acceptance of the application is given, the Registrar must, as soon as practicable, give public notice of the withdrawal. Division 2—Dealing with the application after its acceptance 34 Detailed description in support of application to be given to Registrar (1) As soon as practicable after, but not later than 12 months after, an application has been accepted, or within such further period as the Registrar allows for the purpose, the applicant must, if the applicant has not already done so, give the Registrar a detailed description of the plant variety to which the application relates. Note: A decision under this subsection to refuse to extend the 12 months period is reviewable by the ART under section 77. (2) If the applicant fails to give the Registrar the detailed description required under this section within the required period, the application is taken to have been withdrawn. (3) The detailed description must be in the approved form. (4) The detailed description must contain: (a) particulars of the characteristics that distinguish the variety from other plant varieties the existence of which is a matter of common knowledge; and (b) particulars of: (i) any test growing carried out, including a test growing carried out as required under section 37, to establish that the variety is distinct, uniform and stable; and (ii) any test growing carried out as required under section 41 or 41E (both of which deal with test growing of essentially derived varieties); and (c) if the variety was bred outside Australia—particulars of any test growing outside Australia that tend to establish that the variety will, if grown in Australia, be distinct, uniform and stable; and (d) such other particulars (if any) as are required by the approved form; and must be accompanied by a certificate, in the approved form, verifying the particulars of the detailed description, completed by the approved person nominated in the application as the approved person in relation to that application. (5) The Registrar must, as soon as practicable after receiving a detailed description of a plant variety to which an application for PBR relates, give public notice of that description. (6) The applicant must: (a) unless paragraph (b) applies—within 12 months after the application has been accepted; and (b) if the detailed description has been given to the Registrar before the end of that period—at the time when the description was given; pay to the Commonwealth such examination fee as is prescribed. (7) Subsection (6) does not apply to an applicant if, when the examination fee would become payable apart from this subsection: (a) the plant variety to which the application relates is subject to biosecurity control; or (b) a biosecurity control order is in force in relation to the plant variety to which the application relates; or (c) a biosecurity response zone determination is in force and the plant variety to which the application relates is in the biosecurity response zone. (8) If subsection (7) applies, the applicant must pay the prescribed examination fee within 12 months after (as the case requires): (a) the plant variety is released from biosecurity control; or (b) the biosecurity control order ceases to be in force in relation to the plant variety; or (c) the biosecurity response zone determination ceases to be in force. 35 Objection to application for PBR (1) Any person who considers, in relation to an application for PBR in a plant variety that has been accepted: (a) that his or her commercial interests would be affected by the grant of that PBR to the applicant; and (b) that the Registrar cannot be satisfied, in relation to that application, of a matter referred to in a paragraph of subsection 26(2) or in subparagraph 44(1)(b)(i), (ii), (iii), (iv), (v), (vi), (vii) or (viii); may lodge a written objection to the grant of PBR with the Registrar at any time after the giving of that public notice of acceptance of the application and before the end of the period of 6 months starting with the public notice of that detailed description. (2) An objection must set out: (a) particulars of the manner in which the person considers his or her commercial interests would be affected; and (b) the reasons why the person considers that the Registrar cannot be satisfied of a matter referred to in paragraph (1)(b). (2A) An objection is of no effect unless it is accompanied by the prescribed fee. (3) The Registrar must give a copy of the objection to the applicant. 36 Inspection of applications and objections (1) A person may, at any reasonable time, inspect an application for PBR in a plant variety (including any detailed description of the plant variety given in support of the application) or an objection lodged in respect of that application (including that detailed description). (2) A person is entitled, on payment of such fee as is prescribed, to be given a copy of an application for PBR in a plant variety, of an objection to such an application, or of a detailed description of the plant variety. (3) However, this section does not entitle a person to inspect the part of the application that contains the information referred to in paragraph 26(2)(ga) or to have a copy of the part of the application containing that information, unless the person is: (a) the applicant; or (b) the applicant's authorised agent; or (c) the Minister; or (d) the Registrar; or (e) a person who is required to inspect the part of the application in the course of performing his or her duties in accordance with this Act; or (f) a person prescribed for the purposes of this subsection. 37 Test growing of plant varieties (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 Registrar 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 Registrar: (d) must notify 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 notify that decision to any other person whom the Registrar 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 ART under section 77. (2) The notification, in addition to telling the person of the Registrar's decision: (a) must specify the purpose of the test growing; and (b) may require the person: (i) to supply the Registrar with sufficient plants or sufficient propagating material of plants of the variety, and with any necessary information, to enable the Registrar 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 Registrar a copy of the records of observations made during the test growing and to certify the records of observations so provided; whichever the Registrar considers appropriate. (2A) A person to whom a notification is given under this section must comply with the requirements of the notification: (a) in the case of trees and vines, or propagating materials of trees and vines—within 2 years from the date the notification is given; 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 notification given under this section, the Registrar may: (a) if the person is the grantee—revoke PBR, in the plant variety to which the notification 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 ART under section 77. (3) If a notification under this section contains the requirement referred to in subparagraph (2)(b)(i) and the applicant complies with the request, the Registrar must arrange to have the variety concerned test grown. (4) After completion of a test growing arranged by the Registrar, 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 Registrar to conduct in Australia a test growing of a plant variety, the Registrar may decide to conduct the test growing as so requested. (7) If the Registrar 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. 38 Characteristics of plant varieties bred or test grown outside Australia (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 Registrar 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 Registrar 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 Registrar is, or is not, satisfied of the matters r