Contents
Part 1—Preliminary 1
1............ Name of regulations............................................................................ 1
3............ Interpretation....................................................................................... 1
3AA...... Extension of Act to Norfolk Island..................................................... 1
Part 2—Application for plant breeder’s right 2
3A......... Authorised testing establishment......................................................... 2
3BA...... Essential derivation for non‑PBR protected varieties—publication of notification of application in Journal................................................................................................ 2
3BB....... Essential derivation for non‑PBR protected varieties—opportunity to be heard 3
Part 3—Administration 5
3B......... Employees to whom Registrar may delegate (Act s 59(3))................. 5
3C......... Employees to whom Minister’s powers may be subdelegated (Act s 59(4)) 5
Part 4—Miscellaneous 6
Division 1—General provisions 6
3DA...... Service of documents.......................................................................... 6
3E.......... Period for doing certain acts—office not open for business................ 6
3F.......... Days when office not open for business............................................. 6
3G......... Period for doing certain acts—acts to which section 76A does not apply 7
Division 2—Fees 8
4............ Schedule 1........................................................................................... 8
4AA...... Failure to pay: fees for requesting expedited dispatch......................... 8
4A......... Exemption from fees........................................................................... 8
5............ Refund and remission of fees in specified circumstances.................... 8
Part 5—Application, transitional and saving provisions 10
6............ Application, saving and transitional provisions—Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Regulations 2018 10
Schedule 1—Fees 11
1............ Table of fees...................................................................................... 11
Endnotes 13
Endnote 1—About the endnotes 13
Endnote 2—Abbreviation key 14
Endnote 3—Legislation history 15
Endnote 4—Amendment history 16
Part 1—Preliminary
1 Name of regulations
These regulations are the Plant Breeder’s Rights Regulations 1994.
3 Interpretation
(1) In these Regulations, unless the contrary intention appears:
Act means the Plant Breeder’s Rights Act 1994.
authorised testing establishment means an establishment authorised under regulation 3A.
expedited dispatch means a means of supplying copies or documents that can reasonably be expected usually to be faster than ordinary post.
(2) In Schedule 1, a reference to a section or subsection, is a reference to that section or subsection of the Act.
3AA Extension of Act to Norfolk Island
For the purposes of section 9B of the Act, this regulation prescribes that the Act extends to Norfolk Island.
Part 2—Application for plant breeder’s right
3A Authorised testing establishment
(1) For the purposes of conducting a test growing of a plant variety under section 37 of the Act, the Registrar may authorise, in writing, an establishment to conduct the test growing.
(2) An establishment may be authorised only if the Registrar is satisfied that it is capable of conducting a test growing of a variety in a manner appropriate to give effect to the obligations of Australia under the Convention.
(3) The Registrar must notify the operator of the establishment of:
(a) the Registrar’s decision whether to authorise the establishment; and
(b) if the decision is a refusal—the reasons for that decision.
(4) Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of a decision of the Registrar to refuse to authorise an establishment.
3BA Essential derivation for non‑PBR protected varieties—publication of notification of application in Journal
For the purposes of subsection 41B(1) of the Act, a notification in the Plant Varieties Journal of an application under section 41A of the Act for a declaration of essential derivation must include the following information about the applicant and the application:
(a) a description of the initial variety and the second variety;
(b) details, as stated in the application, of:
(i) the eligible person (within the meaning of section 41A of the Act) making the application; and
(ii) any person (or persons) the applicant reasonably believes to be the breeder of the second variety;
(c) any other information about those plant varieties, or the application, that the Registrar considers appropriate to publish, other than information that the Registrar is satisfied is commercial‑in‑confidence;
(d) details of the opportunity for a person (an interested person) claiming to be the breeder of the second variety, or to have another interest in the second variety, to be heard in relation to the application under section 41C of the Act, including the requirement under subsection 41C(2) of the Act to give the Registrar an address for service;
(e) a statement to the effect that the Registrar may draw an inference in deciding the application that is unfavourable to an interested person’s interest if:
(i) the interested person does not provide an address for service, within the hearing period, under subsection 41C(2) of the Act; or
(ii) the interested person declines the opportunity to be heard under subsection 41C(6) of the Act.
3BB Essential derivation for non‑PBR protected varieties—opportunity to be heard
Scope
(1) This regulation is made for the purposes of subsection 41C(4) of the Act.
When information is given in accordance with an opportunity to be heard
(2) Information is given by an interested person in accordance with the person’s opportunity to be heard in relation to an application under section 41A of the Act for a declaration of essential derivation if:
(a) the person gives the information:
(i) in a written submission made in accordance with a request of the Registrar under paragraph (3)(a); or
(ii) in the course of a hearing convened by the Registrar under subregulation (4); and
(b) the person pays the fee (if any) prescribed under subsection 80(2) of the Act in relation to the opportunity to be heard; and
(c) the person complies with any other requirements under this regulation.
Notification to give written submissions or to appear at a hearing
(3) The Registrar must, unless the interested person declines the opportunity to be heard by giving notice to the Registrar under paragraph 41C(6)(a) of the Act, give a notification to the interested person including any or all of the following:
(a) a request to the interested person to give written submissions in relation to the application to the Registrar within a period, stated in the notification, of no less than 10 business days after the notification is given;
(b) a statement that, on request to the Registrar, a hearing may be convened in relation to the application, beginning at a place, at a time and on a date determined by the Registrar by a further notification (a hearing notice) to the person no less than 10 business days after the hearing notice is given;
(c) a statement (a hearing notice) that a hearing will be convened by the Registrar in relation to the application beginning at a notified time and place, and on a notified date no less than 10 business days after the notification is given.
Note: A hearing notice mentioned in paragraph (b) or (c) may include requirements for the interested person in relation to the hearing (see paragraph (5)(d) and subregulation (6)).
Hearings
(4) The Registrar may convene a hearing in relation to the application as mentioned in paragraph (3)(b) or (c).
(5) For the purposes of the hearing:
(a) the interested person may appear in person, or participate by telephone or another means of telecommunication reasonably allowed by the Registrar; and
(b) the Registrar may adjourn the hearing from time to time or from place to place by notice to each interested person taking part; and
(c) the interested person must, if directed by the Registrar in a hearing notice, provide a written summary of submissions to be made at the hearing; and
(d) the interested person must, if required by a hearing notice, take reasonable steps to do any of the following before or at the hearing:
(i) perform an act;
(ii) file a document;
(iii) produce evidence; and
(e) the interested person must comply with any reasonable directions of the Registrar in relation to practice and procedure during the hearing.
(6) The Registrar may include a requirement for the purposes of paragraph (5)(d) in a hearing notice only if the Registrar reasonably believes it is necessary for the proper conduct of the hearing.
Part 3—Administration
3B Employees to whom Registrar may delegate (Act s 59(3))
For subsection 59(3) of the Act, the Registrar may delegate all or any of the Registrar’s powers or functions under the Act or these Regulations, to an employee of the PBR office:
(a) holding, or performing the duties of, the position of Examiner of Plant Breeder’s Rights; or
(b) employed at any of the following levels:
(i) Executive level 1 or 2;
(ii) APS level 2, 3, 4, 5 or 6.
3C Employees to whom Minister’s powers may be subdelegated (Act s 59(4))
For subsection 59(4) of the Act, the class of employee to whom the Minister’s powers or functions may be delegated is an employee employed at Executive level 2.
Part 4—Miscellaneous
Division 1—General provisions
3DA Service of documents
Service by post is a prescribed means by which a document may be served on, or given or sent to, a person for the purposes of section 73 of the Act.
3E Period for doing certain acts—office not open for business
For subsection 76A(1) of the Act, the circumstance is that the act is done at:
(a) the PBR office; or
(b) the PBR sub‑office;
that was not open for business.
Note: Subsection 76A(1) provides as follows:
‘(1) If the last day of a period provided by this Act (except this section) or the regulations for doing an act is a day when the PBR office or a PBR sub‑office is not open for business, the act may be done in prescribed circumstances on the next day when the office or sub‑office is open for business.’.
3F Days when office not open for business
(1) For paragraph 76A(2)(a) of the Act, the days on which the PBR office or PBR sub‑office is not open for business are:
(a) Saturday; and
(b) Sunday; and
(c) Australia Day; and
(d) Anzac Day.
(2) For paragraph 76A(2)(b) of the Act, the table sets out prescribed persons.
| Item | Person |
| 1 | The Director General of IP Australia |
| 2 | The Deputy Director General of IP Australia |
| 3 | Another person who: (a) is an SES employee of IP Australia; and (b) acts with the agreement of the Director General of IP Australia |
| 4 | Another person who: (a) is an SES employee of IP Australia; and (b) acts with the agreement of the Deputy Director General of IP Australia |
| 5 | Another person who: (a) is an SES employee of IP Australia; and (b) acts with the agreement of another SES employee of IP Australia |
Note: SES employee is explained in section 34 of the Public Service Act 1999. That meaning is applied generally to Commonwealth legislation by section 2B of the Acts Interpretation Act 1901.
(3) For paragraph 76A(2)(b) of the Act, the prescribed way of publishing a declaration is in the Plant Varieties Journal.
3G Period for doing certain acts—acts to which section 76A does not apply
For subsection 76A(7) of the Act, an act done in relation to proceedings in a court or a tribunal is prescribed.
Division 2—Fees
4 Schedule 1
Schedule 1 has effect.
Note: Schedule 1 prescribes fees, as mentioned in subsection 80(2) of the Act.
4AA Failure to pay: fees for requesting expedited dispatch
(1) This regulation applies if a request is made for a copy, or for the supply of documents, as mentioned in item 8, 12 or 12A of the table in clause 1 of Schedule 1.
(2) The Registrar must not supply the copy or documents by means of expedited dispatch unless:
(a) a request is made that the copy or document be supplied by means of expedited dispatch; and
(b) the fee mentioned in item 13 of that table for the request for expedited dispatch is paid.
4A Exemption from fees
The Registrar may exempt specified classes of persons from the payment of the whole or a part of a fee prescribed by Schedule 1 if the Registrar is reasonably satisfied that the exemption is justified, having regard to all the circumstances.
5 Refund and remission of fees in specified circumstances
(1) If a person has paid, in respect of a matter, an amount greater than the prescribed fee for the matter, the Registrar may refund to the person so much of the amount as is excess to the fee.
(2) If a service in respect of which a person has paid a fee has not been provided, or has been provided only in part, the Registrar may refund the fee, or so much of the fee as is proportionate to the part of the service that has not been provided, as appropriate.
(3) If a person to whom a refund could be made under subregulation (1) or (2) agrees, the Registrar may remit, against a fee that the person subsequently becomes liable to pay, an amount equal to the amount that could be refunded.
(4) The Registrar must notify each person to whom subregulation (1) or (2) applies of:
(a) the Registrar’s decision whether to refund or remit an amount, a fee or part of a fee (as the case may be); and
(b) if the decision is a refusal—the reasons for that decision.
(5) Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of a decision of the Registrar:
(a) to refuse to refund:
(i) an amount paid in excess of a prescribed fee; or
(ii) a fee for a service that has not been provided; or
(iii) so much of a fee as is proportionate to the part of a service that has not been provided; or
(b) to refuse to remit an amount equal to an amount that could be refunded
Part 5—Application, transitional and saving provisions
6 Application, saving and transitional provisions—Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Regulations 2018
Amendments made by Part 2 of Schedule 2
(1) The amendments of regulations 3A and 5 made by Part 2 of Schedule 2 to the Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Regulations 2018 apply in relation to notifications occurring on or after the commencement of that Part.
Amendments made by Part 3 of Schedule 2
(2) The repeal of regulation 4A, and the amendment of items 4 and 15 of the table in clause 1 of Schedule 1, made by Part 3 of Schedule 2 to the Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Regulations 2018 apply in relation to fees paid on or after the commencement of that Part.
Amendments made by Part 11 of Schedule 2
(3) A thing done by, or in relation to, the Secretary under these Regulations before the commencement of Part 11 of Schedule 2 to the Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Regulations 2018 has effect on and after that commencement as if it had been done by, or in relation to, the Registrar.