Purpose:

The purpose of this legislation is to provide for the granting of proprietary rights to breeders of new varieties of plants and fungi and to repeal the previous Plant Variety Rights Act 1987.

Objectives:

• To establish proprietary rights for breeders of new plant varieties.
• To define the scope and nature of Plant Breeder’s Right (PBR), including extensions to essentially derived varieties, dependent varieties, harvested material, and products obtained from harvested material.
• To outline the application process for obtaining PBR, including detailed description requirements and priority date rules.
• To establish a system for declaring varieties as essentially derived from PBR-protected varieties.
• To regulate the grant and revocation of PBR, ensuring varieties meet registrability criteria such as distinctness, uniformity, and stability.
• To provide mechanisms for the enforcement of PBR, including actions for infringement and relief from unjustified threats.
• To ensure reasonable public access to plant varieties covered by PBR.
• To establish an administrative framework for the management of PBR, including the Registrar of Plant Breeder’s Rights and the Register of Plant Varieties.

Key Provisions:

• General Nature of PBR (Section 11): Grants the exclusive right to produce, reproduce, condition, offer for sale, sell, import, export, and stock propagating material of a variety, or to license others to do so.
• Extension of PBR (Sections 12-15): Extends PBR to cover essentially derived varieties, certain dependent plant varieties, harvested material, and products obtained from harvested material under specific conditions.
• Exceptions to PBR Infringement (Sections 16, 17): Acts done privately for non-commercial purposes, for experimental purposes, or for breeding other plant varieties do not infringe PBR; conditioning and use of farm saved seed also does not infringe PBR for most taxa.
• Reasonable Public Access (Section 19): Requires grantees of PBR to take all reasonable steps to ensure public access to the variety, with provisions for the Registrar to license others if access is not met, subject to remuneration.
• PBR as Personal Property (Section 20): Declares PBR as personal property capable of assignment or transmission, with notification requirements for the Registrar.
• Application for PBR (Sections 24-34): Details the right to apply, form and content of applications, naming conventions, priority dates, and requirements for detailed descriptions and test growing.
• Essential Derivation Declarations (Sections 40-41F): Establishes processes for declaring a plant variety as essentially derived from another, including applications by eligible persons and provisions for test growing.
• Registrable Plant Varieties (Section 43): Defines the criteria for a plant variety to be registrable (distinct, uniform, stable, and not exploited or only recently exploited).
• Grant and Revocation of PBR (Sections 44-52): Outlines the conditions for granting PBR, its exclusivity, entry on the Register, and grounds and procedures for revocation or surrender of PBR or essential derivation declarations.
• Enforcement of PBR (Sections 53-57E): Defines acts of infringement, provides for legal actions for infringement, counterclaims, declarations of non-infringement, and protection against unjustified threats.
• Administration (Sections 58-62A): Establishes the Registrar of Plant Breeder’s Rights, the Register of Plant Varieties, and provisions for delegation, inspection, and rectification of the Register.
• Offences (Sections 74-75): Prescribes penalties for infringement and other offences, such as making false statements or misrepresenting PBR status.

Evidence of Compliance Requirements For Agricultural Organisations:

• Payment of Equitable Remuneration (Section 18): If an agricultural organisation is authorised by law to perform PBR-covered acts on propagating material, it must pay equitable remuneration to the PBR grantee or exclusive licensee, or arrange for such payment, before doing the act. This requires agreement on the amount or a court determination.
• Ensuring Reasonable Public Access (Section 19): Grantee organisations must take all reasonable steps to ensure propagating material of reasonable quality is available to the public at reasonable prices, or as gifts, in sufficient quantities to meet demand. If this is not met (after 2 years from PBR grant), the Registrar may license others. The grantee may be required to provide propagating material from a genetic resource centre for such licensing.
• Notification of PBR Assignment (Section 21): If an agricultural organisation acquires PBR, it must inform the Registrar in writing of the acquisition, providing particulars of the manner of acquisition, within 30 days after acquiring the right. This written notification must include an address in Australia or New Zealand for service of documents.
• Application for PBR (Section 26): Organisations applying for PBR must submit the application in the approved form. The application must contain:
  • The applicant’s (organisation’s) name and address.
  • The name and address of any agent making the application on its behalf.
  • A statement of whether the applicant is the breeder, or the breeder’s name and address with particulars of assignment/transmission if not.
  • A brief description, or description and photograph, of the plant variety to establish prima facie distinctness.
  • The variety’s name (complying with Section 27) and any proposed synonym.
  • The location where the variety was bred.
  • The name of each parent variety used in the breeding program, including particulars of names/synonyms known or sold in Australia, and any PBR granted in Australia or other contracting parties for each parent variety.
  • A brief description of the manner in which the variety was bred.
  • Particulars of any foreign applications or grants of rights for the variety.
  • The name of an approved person who will verify application particulars, supervise any required test growing (Section 37), and verify a detailed description (Section 34).
  • Any other particulars required by the approved form.
  • An application fee must be paid to the Commonwealth before or at the time of lodging the application.
• Compliance with Naming Requirements (Section 27): The proposed name (and any synonym) for a new plant variety must comply with specific rules: it must be a word(s) with or without letters/figures, not be deceptive/confusing (especially with names of other varieties of the same plant class), not be contrary to law, not contain scandalous/offensive matter, not be prohibited by regulations, not be a registered or sought-after trade mark for live plants/cells/tissues, and must comply with the International Code of Botanical Nomenclature and subsidiary codes. It must not use a person’s name (living or recently deceased) or an organisation’s name without written consent.
• Foreign Priority Claim Requirements (Section 29): If an organisation claims a priority date based on an earlier foreign application, it must:
  • Lodge the Australian application within 12 months of the earliest foreign application.
  • The local application must be accompanied by a claim for the foreign priority date.
  • Lodge a certified copy of the foreign application documents with the Registrar within 3 months of making the local application.
  • Provide further particulars to complete the local application consideration within 5 years of the foreign application.
• Provision of Detailed Description (Section 34): The applicant organisation must give the Registrar a detailed description of the plant variety in the approved form as soon as practicable after, but not later than 12 months after, the application has been accepted, or within any further period allowed by the Registrar. Failure to do so results in the application being withdrawn. The description must contain:
  • Particulars of distinguishing characteristics from common knowledge varieties.
  • Particulars of any test growing carried out (including those under Sections 37, 41, 41E).
  • If bred outside Australia, particulars of foreign test growing to establish distinctness, uniformity, and stability in Australia.
  • Any other particulars required by the approved form.
  • The description must be accompanied by a certificate from the approved person nominated in the application, verifying the particulars.
• Payment of Examination Fee (Section 34): An examination fee must be paid by the applicant organisation:
  • Within 12 months after the application has been accepted, or
  • At the time the detailed description is given to the Registrar if before the end of the 12-month period.
  • If the plant variety is subject to biosecurity control, the fee is due within 12 months after the variety is released from biosecurity control, the biosecurity control order ceases, or the biosecurity response zone determination ceases to be in force.
• Test Growing Requirements (Section 37): If the Registrar decides a test growing is required (for an application, objection, or revocation request), the notified organisation must comply with the notification requirements. This may involve:
  • Supplying the Registrar with sufficient plants or propagating material of the variety and any necessary information to enable the Registrar to arrange a test growing.
  • Making arrangements for an approved person to supervise the test growing, supplying the approved person with sufficient plants or propagating material, giving the Registrar a copy of the records of observations made during the test growing, and certifying those records.
  • Compliance must occur within 2 years for trees and vines (or their propagating materials) or within 12 months for other plant species (or their propagating materials) from the notification date.
  • All costs associated with the test growing must be paid: by the applicant for PBR (if for an application), by the PBR applicant (if for an objection and the objection is valid) or the objector (otherwise), or by the grantee (if for a revocation request and the request is valid) or the person making the request (otherwise).
• Essential Derivation Application (PBR-protected, Section 40): An eligible person (grantee or exclusive licensee) may apply for a declaration of essential derivation. The application must be in the approved form, accompanied by the prescribed fee, and contain information establishing a prima facie case. The grantee of the second variety must provide information to rebut the prima facie case within 30 days (or an extended period) of Registrar notification.
• Essential Derivation Test Growing (PBR-protected, Section 41): If a test growing is required for an essential derivation application (for PBR-protected varieties), both the applicant and the grantee of PBR in the second variety must supply the Registrar with sufficient plants or propagating material and necessary information. All costs associated with the test growing must be paid by the person who failed to rebut the prima facie case of essential derivation without the test growing.
• Essential Derivation Application (non-PBR-protected, Section 41A): An eligible person (grantee or exclusive licensee) may apply for a declaration of essential derivation for a non-PBR-protected second variety. The application must be in the approved form, accompanied by any prescribed fee, and contain information to establish the second variety is essentially derived and registrable. It must also include information to notify the breeder of the second variety, or evidence of reasonable steps taken if that information cannot be obtained.
• Opportunity to be Heard for Essential Derivation (non-PBR-protected, Section 41C): An interested person (e.g., the breeder of the second variety) must provide the Registrar with an address for service in Australia or New Zealand within the 2-month hearing period to receive an opportunity to be heard. Information provided must comply with regulations (e.g., written information at Registrar’s request, oral information at a hearing).
• Essential Derivation Test Growing (non-PBR-protected, Section 41E): If a test growing is conducted for an essential derivation declaration (for non-PBR-protected varieties), the applicant must supply the Registrar with sufficient plants or propagating material of the initial variety and information within a reasonable period specified in the notification. Any interested person notified must supply the Registrar with sufficient plants or propagating material of the second variety and information within a reasonable period specified in the notification. The applicant must pay all costs associated with this test growing.
• Deposit of Propagating Material (Section 44): Applicant organisations must ensure that propagating material of the variety, sufficient to keep it in existence, is deposited for storage at the applicant’s expense in a Registrar-approved genetic resource centre.
• Supply of Specimen Plant (Section 44): If required by the Registrar (mandatory for Australian indigenous species), a satisfactory specimen plant of the variety must be supplied to the herbarium.
• Payment of Grant Fees (Section 44): All fees payable under the Act in respect of the application, examination, and grant must be paid before PBR is granted.
• Compliance with Minister’s Conditions (Section 49): Grantee organisations must comply with any conditions imposed by the Minister on the PBR in the public interest.
• Payment of Annual Fees (Section 50): Grantees must pay any fees payable in respect of the right or declaration within 30 days after being notified that the fee has become payable. Failure to pay may result in revocation of PBR or essential derivation declaration. Failure to pay the prescribed annual fee for renewal by the last day for payment results in the right being taken to have been surrendered (Section 51).
• Avoiding Infringement (Section 53): Organisations must not, without authorisation from the PBR grantee (which may require authorisation from both the initial variety and essentially derived variety grantees), perform any PBR-covered acts (produce, reproduce, condition, offer for sale, sell, import, export, stock propagating material) or claim the right to do so. Organisations must also not use a variety’s registered name or synonym for any other plant variety of the same plant class or a plant of any other variety of the same plant class.
• Avoiding False Statements (Section 75): Organisations must not make false statements in any application or other document given to the Registrar for the purposes of this Act.
• Avoiding Misrepresentation of PBR (Section 75): Organisations must not represent to another person that they are the grantee of PBR if they are not, or that PBR extends to a variety it does not cover (e.g., not a dependent or essentially derived variety), or that a plant of a non-PBR variety is a PBR variety.
• Due Diligence for Conduct of Directors, Employees, and Agents (Section 76): Organisations (body corporate or other persons) must take reasonable precautions and exercise due diligence to avoid their directors, employees, or agents engaging in conduct that constitutes an offence under the Act (e.g., infringement offences or other offences like false statements).

Metadata Keywords:

Plant Breeder’s Rights, PBR, Australia, Plant Varieties, Agriculture, Intellectual Property, Genetic Resources, Legislation, Farm Saved Seed, Plant Breeding

Publication Information:

Compilation No. 23, Compilation date: 14 October 2024. Original Act No. 110, 1994.

Agricultural Industry Alignment:

Coarse Grains, Cotton, Forestry, Horticulture, Oilseeds, Sugar, Wheat, Wine.

Date Added to database:

This document was parsed and added to the database on 25-07-2025

URL:

https://www.legislation.gov.au/C2004A04783/2024-10-14/2024-10-14/text/original/pdf →