WORLD TRADE ORGANIZATION  
ORGANISATION MONDIALE DU COMMERCE  
ORGANIZACIÓN MUNDIAL DEL COMERCIO  IP/N/1/AUS/P/2/Add.1 
17 December 2007 
 (07-5610) 
Council for Trade-Related Aspects 
of Intellectual Property Rights Original:   English/ 
 anglais/  inglés 
 
 
MAIN DEDICATED INTELLECTUAL PROPERTY  
LAWS AND REGULATIONS NOTIFIED UNDER  
ARTICLE 63.2 OF THE AGREEMENT 
 
AUSTRALIA 
 
Addendum
 
 
 The present document reproduces the text1 of the Plant Breeder’s Rights Amendment 
Act 2002 - No.148, 2002, notified by Australia unde r Article 63.2 of the Agreement (see document 
IP/N/1/AUS/2). 
 
Conseil des aspects des droits de propriété 
intellectuelle qui touchent au commerce  
 
PRINCIPALES LOIS ET RÉGLEMENTATIONS CONSACRÉES À LA  
PROPRIÉTÉ INTELLECTUELLE NOTIFIÉES AU TITRE  
DE L'ARTICLE 63:2 DE L'ACCORD 
 
AUSTRALIE 
 
Addendum
 
 
 Le présent document contient le texte1 de la Loi modifiée de 2002 sur les droits des obtenteurs 
n° 148, 2002, notifiée par l'Australie au titre de l'article 63:2 de l'Accord (voir le document 
IP/N/1/AUS/2). 
 
Consejo de los Aspectos de los Derechos de Propiedad 
Intelectual relacionados con el Comercio  
 
 
PRINCIPALES LEYES Y REGLAMENTOS DEDICADOS A LA  
PROPIEDAD INTELECTUAL NOTIFICADOS EN VIRTUD  
DEL PÁRRAFO 2 DEL ARTÍCULO 63 DEL ACUERDO 
 
AUSTRALIA 
 
Addendum  
 
 En el presente documento se reproduce el texto1 de la Ley de 2002 por la que se modifica la 
Ley de Derechos de los Mejoradores de Plantas - Nº  148 de 2002, notificada por Australia en virtud 
de lo dispuesto en el párrafo  2 del artículo 63 del Acuerdo (v éase el documento IP/N/1/AUS/2). 
                                                      
1 In English only./En anglais seulement./En inglés solamente. IP/N/1/AUS/P/2/Add.1 
Page 2  
 
  
 
 
Plant Breeder’s Rights Amendment Act 2002 
 
No. 148, 2002 
 
 
   An Act to amend the Plant Breeder’s Rights Act 1994 , and for related purposes  IP/N/1/AUS/P/2/Add.1 
 Page 3 
 
 
  Contents 
 
 1 Short title   2 Commencement 
 
 3 Schedule(s)  
Schedule 1—Plant Breeder’s Rights Act 1994 
  Part 1—Amendments 
  Part 2—Application provisions  IP/N/1/AUS/P/2/Add.1 
Page 4  
 
  An Act to amend the Plant Breeder’s Rights Act 1994 , and for related purposes 
 
[Assented to 19 December 2002 ] 
 The Parliament of Australia enacts: 
 
1  Short title 
 
 This Act may be cited as the Plant Breeder’s Rights Amendment Act 2002 . 
 2  Commencement 
 
 This Act commences on the day after it receives the Royal Assent.  
3  Schedule(s) 
 
 Each Act that is specified in a Schedule to this  Act is amended or repealed as set out in the 
applicable items in the Schedule concerned, an d any other item in a Schedule to this Act has 
effect according to its terms.  IP/N/1/AUS/P/2/Add.1 
 Page 5 
 
 
  Schedule 1—Plant Breeder’s Rights Act 1994 
 
Part 1—Amendments 
 
1A  Subsection 3(1) 
 
     Insert: 
 
 indigenous means: 
 
 (a) a member of the Aboriginal race of Australia; or 
  (b) a descendant of the indigenous i nhabitants of the Torres Strait Islands. 
 
1  Subsection 3(1) (definition of synonym) 
 
     Repeal the definition, substitute: 
 
 synonym , in relation to the name of a plant variety, means a name that: 
  (a) is included in an application in a ddition to the name of the variety; and 
 
 (b) is a name by which the variety will be known or sold in Australia.  
2  Subsection 3(1) 
      Insert: 
 
 test growing  includes a comparative test growing. 
 
3  At the end of section 11 
      Add: 
 
 
Note: In certain circumstances, the right conferred by this section extends to essentially derived varieties (see 
section 12), certain dependent plan t varieties (see section 13), harves ted material (see section 14) and 
products obtained from harvested material (see  section 15). 
 
4  Section 18 
 
     Repeal the section, substitute:  
18  Restriction on grantee’s rights 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; and IP/N/1/AUS/P/2/Add.1 
Page 6  
 
   
 (c) before the person does the act, the person either pays equitable remuneration to the 
grantee in respect of the act or arranges for the payment of such remuneration; and 
 (d) the person does the act;  
 then the grantee is not entitled to exercise P BR 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 propa gating material in the circumstances referred to in that 
section. 
      (3) In this section: 
 
 equitable remuneration , in relation to an act done in re lation to propagating material of a 
plant variety, means an amount: 
  (a) that is agreed between the person propos ing to undertake the act and the grantee of 
PBR in the plant variety; or 
  (b) if agreement cannot be reached under paragraph (a)—determined by a court of 
competent jurisdiction to constitute equita ble remuneration in relation to the act. 
 
5  At the end of section 23 
 
     Add: 
 
     (3) If, under subsection 18(1), equitable rem uneration is paid, or arra nged to be paid, to the 
grantee of PBR 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 rela tion to that propagating material  
unless the later act: 
 
 (a) involves the further production or repr oduction 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 mate rial to which that subsection applies. 
 
6  Paragraph 26(2)(g) 
 
     Repeal the paragraph, substitute: 
 (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: 
  IP/N/1/AUS/P/2/Add.1 
 Page 7 
 
 
                (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 manne r in which the variety was bred; and 
 
7  At the end of subsection 26(2) 
      Add: 
 
 Note: The information given under paragraph (ga)  is not available to the public under section 36. 
 
8  Paragraph 27(2)(b) 
 
     Omit “, by which the variety will also be known and sold in Australia”. 
 
9  After subsection 27(3) 
 
     Insert:       (3A) If, before making an application in Au stralia 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. 
 
10  Subsection 27(4) 
 
     Omit “A name under subsection (1), or a synonym under       subsection (3)”, substitute “A name (including a synonym)”. 
 
11  Paragraph 27(5)(e) 
 
     Omit “ Trade Marks Act 1955 ”, substitute “ Trade Marks Act 1995 ”. 
 12  Subsections 27(5), (6) and (7) 
 
     Omit “A name under subsection (1), or a synonym under       subsection (3)”, substitute “A name (including a synonym)”. 
 
13  Subsections 29(1) and (2) 
 
     Repeal the subsections, substitute:       (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 
 IP/N/1/AUS/P/2/Add.1 
Page 8  
 
   (c) the local application is accompanied with a claim to have the date of lodgment of the 
foreign application treated as the priori ty date for the purposes of the local 
application; and 
  (d) the local application is accepted; 
 
 the person is entitled to have the date of l odgment of the foreign application treated as the 
priority date for the purposes of the local application, subject to subsections (3) and (4). 
 
14  Subsections 29(3) and (4) 
 
     Omit “to the priority date referred to in sub section (2)”, substitute “to have the date of lodgment of 
     the foreign application treated as the priori ty date for the purposes of the local application”. 
 
15  Paragraph 30(5)(b) 
 
     Omit “the application” (first occurring), substitute “the applicant”. 
 
16  At the end of section 34 
 
     Add: 
 
     (7) Subsection (6) does not apply to an app licant if the plant variety to which the application 
relates is in quarantine under the Quarantine Act 1908  when the examination fee becomes payable. 
Instead, the applicant must pay the prescribed examination fee within 12 months after the plant 
variety is released from quarantine. 
 
17  At the end of section 36 
 
     Add:       (3) However, this section does not entitle a pe rson 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 Secretary; 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.   IP/N/1/AUS/P/2/Add.1 
 Page 9 
 
 
  18  Subsection 37(1) 
 
     Omit all the words after “relates , the” (other than the note), substitute: 
  Secretary: 
 
 (d) must give written notice of that decision:    (i) to the person who made the a pplication, objection or request; and 
 
              (ii) in the case of an objec tion 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 give written notice of that de cision to any other person whom the Secretary 
considers appropriate if the test growing or further test growing is a comparative test growing. 
 
19  After subsection 37(2) 
      Insert: 
      (2A) A person to whom a notice is sent under this section must comply with the requirements of 
the notice: 
 
 (a) in the case of trees and vines, or propag ating materials of trees and vines—within 2 
years from the date of service of the notice; 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 notice 
issued under this section, the Secretary may: 
  (a) if the person is the grantee—revoke P BR, in the plant variety to which the notice 
relates, under section 50; or 
 
 (b) if the person made an application, objec tion or request—decide not  to further proceed 
with the application, objection or request for revocation. 
 
 Note: A decision not to further proceed with the applicat ion, objection or request fo r revocation is reviewable 
by the AAT under section 77. 
 
20  Paragraphs 37(5)(b) and (c) 
 
     Repeal the paragraphs, substitute:   (b) if it is conducted to deal with an objection to an application for PBR:  
              (i) by the applicant for P BR, where the test growing shows that there are valid 
reasons for the objection; or 
 IP/N/1/AUS/P/2/Add.1 
Page 10  
 
    (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 th e test growing shows that there are valid reasons for 
the request; or 
   (ii) by the person making the request, in any other case.  
21  After paragraph 39(2)(a) 
 
     Insert:   (aa) a decision has been taken under paragraph 37(2B)(b) not to proceed with the 
application; or 
 
 (ab) the application has been withdrawn; or  
22  After paragraph 39(2)(b) 
 
     Insert: 
 
 or (c) at least 12 months have elapsed sin ce the publication of the detailed description that 
was given to the Secretary under subsection 34(1); 
 
23  Subsections 43(5) and (6) 
 
     Omit “propagating or harvested material”, substitute “plant material”.  
24  At the end of subsection 43(6) 
 
     Add: 
 
 Note: For the definition of sell see subsection 3(1). 
 
25  Subsection 43(7) 
 
     Omit “propagating or harvested material”, substitute “plant material”.  
26  After subsection 43(7) 
      Insert: 
      (7A) Subsection (6) does not apply to a sale of plant material of a plant variety to a person by, or 
with the consent of, the breeder if: 
 
 (a) the sole purpose of the sale is for the pe rson to multiply plant material of that plant 
variety on behalf of the breeder; and 
  (b) under the agreement for the sale, immediately after the pl ant material is multiplied, 
property in the new plant material vests in the breeder. 
  IP/N/1/AUS/P/2/Add.1 
 Page 11 
 
 
       (7B) Subsection (6) does not apply to a sale of plant material of a plant variety to a person by, or 
with the consent of, the breeder if the sale is part of an agreement under which the person 
agrees to use plant material of that variety for the sole purpose of evaluating the variety in one 
or more of the following tests or trials: 
 
 (a) field tests; 
  (b) laboratory trials;   (c) small-scale processing trials; 
 
 (d) tests or trials prescribed for the purposes of this subsection.       (7C) Subsection (6) does not apply to a sale of plant material of a plant variety to a person by, or 
with the consent of, the breeder if: 
 
 (a) the sale only involves plant material that is a by-product or surplus product of one or 
more of the following: 
   (i) the creation of the variety;  
  (ii) a multiplication of the variety; 
   (iii) tests or trials covered by subsection (7B); and   (b) the plant material is sold: 
 
  (i) without identification of the plant variety of the plant material; and    (ii) for the sole purpose of final consumption.  
27  Paragraph 43(8)(b) 
 
     Repeal the paragraph, substitute:   (b) the application is proceeding, or has led, to the grant of PBR. 
 28  At the end of section 43 
 
     Add:       (10) In this section: 
 
 plant material , in relation to a plant variety, means one or more of the following: 
  (a) propagating material of the plant variety;   (b) harvested material of the plant variety; 
 
 (c) products obtained from harvested material of the plant variety.  IP/N/1/AUS/P/2/Add.1 
Page 12  
 
  29  Paragraph 48(2)(c) 
 
     Omit “section 39”, substitute “section 40”.  
30  Subsection 49(1) 
 
     Omit “that the Minister proposes to make, or an existing grant of PBR”,       substitute “, whether proposed or made”.  
31  After paragraph 50(2)(a) 
 
     Insert:   (aa) the Secretary is satisfied that the gr antee, without reasonable excuse, has failed to 
comply with the requirements of a notice under section 37; or 
 
32  After subsection 53(1) 
 
     Insert:       (1A) To avoid doubt, an infringement of PBR in a plant variety under paragraph (1)(c) can include 
using a synonym in relation to the name of a plan t variety, if that synonym is entered in the 
Register under paragraph 46(1)(b). 
 
33  Subsection 54(1) 
      Omit “may be begun in the Court”, substitute “may be begun in the Court only by the grantee”. 
 
34  After paragraph 63(2)(a) 
 
     Insert:  
 (aa) at the request of the Minister, to a dvise the Minister on the question of whether an 
existing, or proposed, grant of PBR s hould be subject to conditions; and 
 
34A  Paragraph 64(1)(e) 
      Repeal the paragraph, substitute: 
  (e) one member who will represent the conser vation interests in relation to new plant 
varieties and the potential impacts of new plant varieties; and 
  (f) one member who will represent indigenous Australian interests in relation to new 
plant varieties and the source, use and impacts of new plant varieties; and 
  (g) 2 other members who, in the opini on of the Minister, possess qualifications or 
experience that are appropriate for a member of the Advisory Committee. 
 34B  Subsection 65(1) 
 
     Omit “and (e)”, substitute “, (e), (f) and (g)”.   IP/N/1/AUS/P/2/Add.1 
 Page 13 
 
 
  34C  Subsection 67(2) 
 
     Repeal the subsection, substitute:       (2) At a meeting of the Advisory Committee, 5 members constitute a quorum. 
 
35  Subsection 64(4) 
 
     Omit “2”, substitute “3”.  36  Paragraph 77(1)(a) 
 
     Omit “subsection 49(1)”,  substitute “subsection 49(2)”. 
 
37  After subparagraph 77(1)(b)(viii) 
 
     Insert:                          (viiia) under paragraph 37(2B)(b) not to proceed further with an application, 
objection or request for revocation; or 
 38  Article 14(1)(a)(vii) of the Convention as set out in Schedule 1 
 
     Omit “(iv)”, substitute “(vi),”.  
 
Part 2—Application provisions  
39  Application of item 4 
 
 The amendment made by item 4 applies in relation to an act done on or after the 
commencement of that item. 
 
40  Application of item 16 
 
 The amendment made by item 16 applies in relation to:  
 (a) an application made before the commencem ent of that item, if the applicant has not 
paid the examination fee in respect of the application; and 
  (b) an application made on or after the commencement of that item.  
41  Application of items 18, 19 and 31 
 
 The amendments made by items 18, 19 and 31 a pply in relation to a decision that there should 
be a test growing or further test growing that is made on or after the commencement of those items. 
 42  Application of item 20 
 
 The amendment made by item 20 applies in re lation to a test growing begun on or after the 
commencement of that item. 
 IP/N/1/AUS/P/2/Add.1 
Page 14  
 
  43  Application of items 21 and 22 
 
 The amendments made by items 21 and 22 apply in relation to:  (a) an application made, but not disposed of, before the commencement of those items; 
and 
 
 (b) an application made on or after the commencement of those items.  
44  Application of items 23, 25, 26 and 28 
  The amendments made by items 23, 25, 26 and 28 apply in relation to a sale that occurs on or 
after the commencement of those items. 
 
45  Application of item 27 
  The amendment made by item 27 applies in rela tion to an application ma de before, on or after 
the commencement of that item. 
 
[Minister’s second reading speech made in— 
Senate on 13 March 2002  
House of Representatives on 12 December 2002 ] 
(65/02) 
 
__________