Plant Breeder's Rights Act 1994

Breeders and successor companies holding or seeking PBR are the primary participants. This includes plant breeding companies, agricultural research organisations, universities, and individual hobbyist breeders, whether or not they are Australian citizens or residents (section 24(2)). Applicants from UPOV contracting parties may claim a priority date based on an overseas application lodged up to 12 months earlier (section 29).

Licensees, including exclusive licensees, acquire rights and obligations under the Act. An exclusive licensee may sue for infringement in their own name but must join the grantee as a defendant unless the grantee is a co-plaintiff (section 54(2)).

Farmers are affected by the farm-saved seed exception in section 17, which permits conditioning and reproduction of harvested propagating material for the farmer's own reproductive use, provided the variety has not been placed in an excluded taxon by regulation under section 17(2).

Any person who commercially deals in propagating material of a protected variety without authorisation is exposed to civil infringement and criminal liability. Competitors seeking to confirm that a proposed activity will not infringe may apply for a declaration of non-infringement under section 55.

Grantee: Must take all reasonable steps to ensure reasonable public access to the protected variety at reasonable prices and in sufficient quantities to meet demand (section 19(1)). A grantee who receives a notice of assignment must be notified to the Registrar within 30 days (section 21(1)). Annual renewal fees must be paid or the right is treated as surrendered (section 51(2)).

Applicant: Must lodge an application in the approved form containing, among other things, the name and address of the applicant and breeder, a brief description establishing prima facie distinctness, the proposed variety name, particulars of parent varieties used in breeding, and the name of an approved person who will supervise test growing and verify the detailed description (section 26(2)). A detailed description must be provided within 12 months of acceptance, or the application is taken withdrawn (section 34(1) and (2)). Propagating material must be deposited in an approved genetic resource centre as a condition of grant (section 44(1)(b)(vii)).

Persons assigned PBR: Must notify the Registrar of the assignment within 30 days and provide an address for service in Australia or New Zealand (section 21(1) and (5)).

Persons dealing in protected varieties: Must not perform any of the acts described in section 11 without authorisation, subject to the exceptions in sections 16 to 23.

The Registrar holds extensive powers across the lifecycle of a PBR application:

Under section 30, the Registrar accepts or rejects applications. Acceptance requires satisfaction that no earlier application has priority, the application complies with section 26, and it makes a prima facie case for distinctness. Rejection decisions are reviewable by the Administrative Review Tribunal (ART).

Under section 37, the Registrar may require test growing at any stage of dealing with an application, objection, or revocation request. Applicants and grantees who receive a test-growing notification must comply within 12 months (or two years for trees and vines). Failure without reasonable excuse may result in the Registrar declining to proceed with the application or revoking PBR.

Under section 19(3), the Registrar may, on behalf of the grantee, grant licences to third parties to sell or produce propagating material if the grantee fails to ensure reasonable public access. This power is triggered by a written request from an affected person made more than two years after the initial grant, and requires a prescribed consultation and notice process before any licence is granted.

Under sections 40 and 41D, the Registrar may declare a variety to be essentially derived from another variety. This extends the rights of the initial variety's grantee to the second variety. The two sections operate differently: section 40 applies where the second variety has PBR; section 41D applies where it does not. The section 41D process requires the Registrar to be satisfied on the balance of probabilities and to give interested persons a formal opportunity to be heard.

Under section 44, the Registrar grants PBR if all conditions in section 44(1)(b) are satisfied and may refuse if they are not. The Registrar must not grant or refuse until at least six months after public notice of the detailed description.

Under section 50, the Registrar must revoke PBR if facts emerge that would have prevented the original grant, or if annual fees are not paid within 30 days of notice. The Registrar may revoke if the grantee fails to comply with a test-growing notification, fails to notify an assignment, or breaches a ministerial condition imposed under section 49.

The Minister may impose conditions on the grant of PBR considered necessary in the public interest (section 49(2)), which are then reviewable by the ART.

Civil remedies: Infringement of PBR is actionable under Part 5. Only the grantee or an exclusive licensee may commence an infringement action (section 54(1)). The Federal Court and the Federal Circuit and Family Court of Australia (Division 2) have concurrent exclusive jurisdiction (sections 56 and 56A). Available remedies include injunctions, damages, or an account of profits at the plaintiff's election. The court may add an aggravated amount to a damages award, taking into account the flagrancy of the infringement, the need to deter similar conduct, any benefit gained, and all other relevant matters (section 56(3A)).

Innocent infringement provides a defence to damages and account of profits if the defendant proves no awareness and no reasonable grounds for suspecting the existence of PBR (section 57). However, if the propagating material has been sold labelled to indicate PBR to a substantial extent before the infringement, the defendant is presumed to have known.

Unjustified threats: Under sections 57A to 57E, a person threatened with infringement proceedings may apply for declarations that the threats are unjustified, an injunction, and damages. The court may award aggravated damages for flagrant threats. Mere notification of the existence of PBR is not a threat (section 57D). Legal practitioners acting professionally for clients are immune from such proceedings (section 57E).

Criminal offences: Under section 74(1), it is an offence (500 penalty units) to perform any of the acts in section 11 without authorisation in circumstances that would constitute infringement under section 53. Strict liability applies to the physical element that the act would constitute infringement. Prosecution does not bar a civil infringement action for the same act (section 74(2)).

Under section 75, additional offences include: making false statements to the Registrar (six months imprisonment), falsely representing oneself as the grantee of PBR (60 penalty units), misrepresenting the scope of PBR held (60 penalty units), and representing that a non-protected variety is protected (60 penalty units).

Under section 60, former Registrar and Departmental employees involved in assisting the Registrar are prohibited from applying for or acquiring PBR within 12 months of ceasing their duties (60 penalty units), and any such grant or acquisition is void.

Corporate liability provisions in section 76 extend the mental and physical elements of offences through directors, employees, and agents acting within actual or apparent authority. An employer who took reasonable precautions and exercised due diligence may rebut liability.

Application: Lodged in approved form with the Registrar. Application fee payable before or at lodgment. The Registrar assigns a priority date, which may be backdated to a foreign application date if claimed within 12 months (section 29).

Acceptance or rejection: As soon as practicable after lodging, the Registrar decides whether to accept or reject. Acceptance is notified to the applicant and publicly advertised in the Plant Varieties Journal.

Detailed description: Must be provided within 12 months of acceptance; failure causes the application to be treated as withdrawn (section 34(1) and (2)). The Registrar publicly notifies the detailed description and gives at least six months before granting or refusing PBR.

Objection period: Persons whose commercial interests are affected may lodge objections within six months of public notice of the detailed description (section 35). The Registrar gives the applicant 30 days to respond.

Test growing: May be ordered at any time. Timelines are 12 months for most species and two years for trees and vines (section 37(2A)). Costs fall on the applicant (for general test growing) or the party that fails to rebut the prima facie case in an objection or revocation context (section 37(5)).

Grant: Once all conditions in section 44(1)(b) are satisfied and the six-month objection window has closed, the Registrar must grant PBR by issuing a certificate. Particulars are entered in the Register and public notice is given in the Plant Varieties Journal.

Duration: 25 years for trees and vines; 20 years for other varieties, measured from the date of grant (section 22). Regulations may extend these periods for specified taxa.

Renewal: Annual fees must be paid or the right is surrendered by operation of section 51(2).

Revocation: The Registrar must give the grantee particulars of grounds and allow 30 days for a written response before revoking. Revocation takes effect at the end of the ART application period if unchallenged, or when a challenge is withdrawn or finally determined (section 50).

ART review: A wide range of Registrar and Ministerial decisions are reviewable by the Administrative Review Tribunal (ART) under section 77, including decisions to accept or reject applications, to require test growing, to grant or refuse to grant PBR, to declare or refuse to declare essential derivation, and to revoke or refuse to revoke PBR or an essential derivation declaration.

UPOV Convention: The Act was enacted to give effect to Australia's obligations under the Acts of the UPOV Convention (section 10). The 1991 Act of the Convention is set out in Australian Treaty Series 2000 No. 6. The Registrar must have regard to the Union's List of Classes for Variety Denomination Purposes in maintaining the Registrar's List of Plant Classes (section 61(1B)).

Personal Property Securities Act 2009: PBR and any licence in PBR constitute intellectual property within the meaning of the PPSA, which governs security interests in them (section 20, Note 1). Section 106 of the PPSA provides that security agreements in relation to intellectual property licences bind successors in title (section 20, Note 2).

Trade Marks Act 1995: A variety name must not be or include a registered trade mark, or a trade mark whose registration is being sought, in respect of live plants, plant cells, and plant tissues (section 27(5)(e)).

Biosecurity Act 2015: Fee obligations for providing detailed descriptions are suspended while plant material is subject to biosecurity control orders or biosecurity response zone determinations (section 34(7) and (8)). The Registrar may arrange supply of propagating material from a genetic resource centre if a biosecurity response zone prevents commercial access (section 19(10)).

Criminal Code: Chapter 2 (other than Part 2.5) of the Criminal Code Act 1995 applies to all offences against the Act (section 9A). This brings the general principles of criminal responsibility, including the fault elements and the treatment of strict liability, to bear on offences under sections 74 and 75.

Crimes Act 1914: Referenced in section 76(9) for the purposes of determining the scope of corporate criminal liability through the conduct of accessories.

Plant Variety Rights Act 1987: Repealed by section 78. Rights granted under the old Act were converted to PBR under Part 9, subject to preserved duration limits and without conferring additional rights to dependent varieties or essentially derived varieties (sections 82 to 84).

Farm-saved seed is limited: The section 17 exception for farm-saved seed applies only where the variety is not listed in a taxon excluded by regulation under section 17(2). Breeders of economically important horticultural crops should check whether the relevant taxon has been excluded before assuming the exemption applies.

Priority date window: A person who has applied abroad must file in Australia within 12 months of the earliest foreign application and claim priority at the time of lodging to preserve the foreign priority date (section 29). Missing this window means a later Australian application takes the date it was actually lodged, risking loss of novelty.

Provisional protection begins on acceptance: Under section 39, an accepted applicant is treated as the grantee for the purposes of Part 5 from the date of acceptance. However, the applicant cannot actually commence infringement proceedings until PBR is finally granted. This creates a zone of protection that is real but not yet enforceable in court.

Essentially derived varieties require dual consent: Where PBR in a variety is extended by an essential derivation declaration to cover a second variety, authorisation from both the initial variety's grantee and the derived variety's grantee is required for dealings in the derived variety (section 53(2)). This is a common trap for licensees who obtain rights only from the derived variety's grantee.

Duration runs from grant, not from acceptance: The Full Federal Court confirmed in Elders Rural Services Australia Limited v Registrar of Plant Breeder's Rights [2012] FCAFC 14 that the 20-year PBR term under the new Act runs from the date of grant, not from the date the application was accepted. Applicants whose applications were accepted under the old Act but granted under the new Act receive the new Act's term.

Reasonable public access is mandatory: Section 19 imposes a positive obligation on grantees. A grantee who restricts supply, raises prices unreasonably, or fails to meet demand can be subjected to a Registrar-granted licence to a third party. This is not merely a policy aspiration; it is an enforceable statutory duty.

Name of variety is permanent: Once entered on the Register, the variety name (and any synonym) is protected as a designation for that plant class. Using that name for any other variety in the same plant class infringes section 53(1)(c), even after PBR has lapsed. Traders who rebrand or rename varieties should verify that proposed names are not reserved on the Register.

Parent variety information is confidential: Information about parent varieties provided under section 26(2)(ga) is not available for public inspection under section 36(3), except to the applicant, the applicant's authorised agent, the Minister, the Registrar, persons performing statutory duties, or prescribed persons. Third parties cannot inspect breeding pedigree details.

Cereal grain farmer and farm-saved seed: A wheat farmer legitimately purchases certified propagating material of a PBR-protected wheat variety. She sows the seed, harvests the resulting grain, and retains some for the following season. Under section 17(1), she may condition and reproduce that retained material for her own reproductive purposes without infringing PBR, provided wheat is not in a regulation-excluded taxon. She cannot, however, sell the retained seed to a neighbour without the grantee's authorisation, as that sale would involve propagating material and would not fall within any of the exemptions in sections 16 to 23.

Horticultural breeder applying for PBR: A nursery company develops a new rose variety over several years and begins preliminary commercial trials one year before lodging an application. Since the variety has not been sold to a third party more than one year before the application date in Australia (section 43(6)(a)), the variety is treated as "only recently exploited" and remains registrable. The company lodges an application under section 24, pays the application fee, provides a brief description establishing prima facie distinctness, and nominates an approved person to supervise the subsequent test growing and verify the detailed description. Twelve months after acceptance, the company supplies the detailed description and pays the examination fee. The Registrar arranges comparative test growing. Six months after public notice of the detailed description, the Registrar grants PBR.

Competitor using a protected variety name: A retail garden centre begins selling grass under the name "Sir Walter" without holding a licence from the PBR grantee. Even if the grass supplied is of the same species but a different variety, using the registered name for any other variety in the same plant class infringes section 53(1)(c). The grantee or an exclusive licensee may commence proceedings in the Federal Court for an injunction and damages.

Test growing dispute: A third party objects to a pending application on the ground that the variety is not clearly distinguishable from an existing variety of common knowledge. The Registrar, unable to determine the question on the documentary record, orders test growing under section 37. The test growing demonstrates that the objection has merit. The costs of the test growing fall on the applicant (section 37(5)(b)(i)). If the test growing instead shows no valid basis for the objection, costs fall on the objector (section 37(5)(b)(ii)).

Essential derivation claim: A company holds PBR in a parent wheat variety. A competitor releases a new variety that the company believes was predominantly derived from its protected variety and differs only in a cosmetic characteristic. The company applies under section 40(1A) for a declaration that the competitor's variety is essentially derived. If satisfied of the prima facie case, the Registrar notifies the competitor and gives it 30 days to rebut. If the competitor fails to rebut, the Registrar declares essential derivation. From that point, dealings in the competitor's variety require authorisation from both grantees.