Commonwealth Consolidated Acts Commonwealth Consolidated Acts(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.