This Act has been repealed and is no longer in force. It is retained for historical reference.
Jurisdiction
Commonwealth
Act Number
2 of 1987
Collection
act
Plain English Summary
7/10 complexity
What this law does, mechanically
Establishes a national, statutory system that creates exclusive commercial rights for persons who originate certain new plant varieties. Those exclusive rights cover selling and producing plants and their reproductive material, and licensing others to do those things (section 12).
Sets up an administrative structure: a Registrar and a Register (sections 6 and 9), a Plant Variety Rights Advisory Committee to give technical advice (Part IV; section 44), and powers for the Secretary and Minister to administer, delegate and make decisions (sections 7, 6, 34).
Controls which plants are eligible: rights are only available for varieties of genera or species that the regulations declare to be covered (section 13). The Governor‑General may make those regulations only after the Minister has considered Advisory Committee advice (section 13(2)).
Defines application, examination and grant mechanics: breeders (or their assignees) apply in a prescribed form (sections 15–16); the Secretary accepts or rejects applications and gives public notice (section 18); a period for objections and challenge is built into the procedure (sections 20–21). The Secretary can require test growing and related evidence (section 24) and make equivalence findings for varieties originated outside Australia (section 23).
Provides provisional protection during the pendency of an accepted application, but with limits and the Secretary may terminate provisional protection on specified grounds (section 22).
Records grants in a public Register and issues a certificate on grant (sections 26–28). Rights last 20 years from acceptance of the successful application (section 32), are personal property and generally assignable (sections 30–31), but assignments must be recorded and notified (section 31).
Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
Sets mandatory deposit and preservation steps as conditions of rights: grantees may be required to deliver specified quantities of reproductive material to a genetic resources centre at the grantee’s expense and to deposit a herbarium specimen (section 33). The Secretary may store and use that material for Act purposes (section 33(4),(6)).
Allows the Minister/Secretary to impose public‑interest conditions on rights (section 34) and—if the Secretary is satisfied the grantee is not meeting public requirements—authorise licensing to other parties to ensure availability to the public (section 39). Such licensing includes prescribed terms and public process (section 39(3)–(10)).
Sets the scope of infringement and remedies: the Act identifies infringing conduct (unauthorised sale or production, misuse of registered name, breach of licence terms) and gives the Federal Court exclusive jurisdiction to hear infringement suits and grant injunctions, damages or account of profits (sections 40–43). There is also a statutory route to seek a declaration that proposed conduct would not infringe (section 42).
Provides criminal and civil penalties for false statements, false representations about rights and a prohibition on Secretary/Registrar applying for rights while in office or for 12 months after (sections 8, 52).
Provides merits review rights to the Administrative Appeals Tribunal against a wide range of administrative decisions under the Act, and requires notices to inform affected persons of review rights (sections 53–54).
Who this affects and who pays (concrete allocation of costs and decisions)
Beneficiaries: breeders (or assignees) who originate qualifying new plant varieties can obtain exclusive commercial rights (section 12). Those rights concentrate commercial exclusivity on the grantee (section 12).
Obligors/Cost‑bearers: applicants and grantees pay prescribed application and maintenance fees (sections 16, 26(1)(viii), 55). Grantees may be required to deliver reproductive material to genetic resources centres at their own expense and deposit herbarium specimens (section 33(2), (8)). Applicants may need to fund test growing or supply material for testing (section 24; fees may be prescribed under section 55(c)).
Decision‑makers: Secretary and Registrar make most intake, acceptance, testing and grant decisions (sections 18, 24, 26, 27). The Minister can impose public‑interest conditions (section 34) and is given a role in the regulatory scope for genera/species (section 13). The Federal Court adjudicates infringement and can revoke rights in litigation (sections 41–43). The Administrative Appeals Tribunal reviews many administrative decisions (section 53).
Third parties: seed producers, nurseries, growers and downstream sellers who want to sell or produce a protected variety must either be licensed or rely on statutory exceptions (sections 12, 38, 39, 40).
Why the Act matters (stated purpose and an assessment of mechanisms and trade‑offs)
Stated purpose: the Act provides proprietary rights to persons originating certain new plant varieties (short title and long title; Schedule/Convention reproduced). That purpose is implemented by defining a bundle of exclusive commercial rights, a procedural regime for examination and grant, and enforcement routes (sections 12, 15–26, 40–43).
Trade‑offs and incentive/cost structure (mechanical analysis):
Incentives: exclusivity and a 20‑year term (section 32) create a revenue opportunity for breeders to recoup development costs and to license third parties (section 12). Assignability (section 30) allows monetisation or transfer.
Compliance and administrative burdens: applicants must provide detailed descriptions, stability/homogeneity evidence, origin particulars and submit to tests and public notice (sections 16, 17, 23, 24). Fees are prescribed (section 55). Grantees face ongoing obligations (depositing material, possible ministerial conditions, ensuring public availability) (sections 33–34, 39), and risk revocation for non‑compliance (section 35).
Bureaucratic discretion and implementation risk: the Secretary has broad powers to accept/reject applications, require test growing, terminate provisional protection, impose conditions, and license on public‑interest grounds (sections 18, 22, 24, 34, 39). That discretion creates operational reliance on administrative decision‑making and associated review processes (section 53).
Public interest balancing: the Act embeds exceptions for non‑commercial use and food/farm sales (section 38) and a mechanism for compulsory licensing to ensure availability at reasonable prices if the grantee fails to meet public needs (section 39). Those provisions shift some risk and potential cost from grantees to the public and to the administrative process for determining “reasonable requirements”.
Concentration of benefit vs distributed costs: benefits are concentrated on successful breeders/grantees. Potential costs or constraints fall on downstream producers and sellers who must obtain licences or rely on statutory exceptions; the public interest licensing process (section 39) is a mechanism to diffuse availability if the grantee does not supply the market adequately.
Administrative and judicial checks
Merit review at the Administrative Appeals Tribunal is available for many important decisions (section 53). Infringement disputes and revocation claims can be litigated in the Federal Court with statutory remedies and rules about costs and knowledge defences (sections 41–43).
Key mechanical limits and definitions to watch
The Act only applies to genera or species declared in regulations (section 13).
"New plant variety" is defined by distinctness, homogeneity and stability (section 3(1)).
Provisional protection (section 22) exists but is conditional and limited; applicants are not entitled to sue for infringement based solely on provisional protection until a grant issues (section 22(7)).
Overall, the Act sets up a formal property‑like right for plant breeders with a structured application, testing and grant process, administrative discretion to protect public interest and availability, and enforcement through the Federal Court and administrative review by the AAT. The mechanics allocate costs to applicants/grantees (fees, test and deposit obligations) while preserving statutory exceptions and administrative remedies to address public availability and compliance concerns (sections 12, 22, 33, 34, 39, 55).