the breeder is an Australian citizen; and

the breeder is resident in Australia; and

the variety was bred in Australia.

the name and address of the applicant; and

if the applicant is using an agent to make the application on the applicant’s behalf—the name and address of the agent; and

if the applicant is the breeder of the variety—a statement of that effect; and

if the applicant is not the breeder of the variety—the name and address of the breeder and particulars of the assignment, or transmission by will or by operation of law, of the right to make the application; and

a brief description, or a brief description and photograph, of a plant of the variety sufficient to establish a prima facie case that the variety is distinct from other varieties of common knowledge; and

the name of the variety, having regard to the requirements of section 27, and any proposed synonym for that name; and

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:

particulars of the names (including synonyms) by which the parent variety is known or sold in Australia; and

particulars of any PBR granted in Australia or in any other contracting party; and

a brief description of the manner in which the variety was bred; and

particulars of any application for, or grant of, rights of any kind in the variety in any other country; and

the name of an approved person who:

will verify the particulars in the application; and

will supervise any test growing or further test growing of the variety required under section 37; and

will verify a detailed description of the variety when such a description is supplied to the Registrar;

such other particulars (if any) as are required by the approved form.

the name of the variety set out in the Australian application must be the name under which PBR was first granted in another contracting party; but

there may, and, if the name referred to in paragraph (a) does not comply with subsections (4), (5), (6) and (7) there must, also be included in the application a synonym, additional to the name of the variety.

a letter or letters that do not constitute a word;

a figure or figures.

be likely to deceive or cause confusion, including confusion with the name of another plant variety of the same plant class; or

be contrary to law; or

contain scandalous or offensive matter; or

be prohibited by regulations in force at the time of the application; or

(e) be or include a trade mark that is registered, or whose registration is being sought, under the Trade Marks Act 1995, in respect of live plants, plant cells and plant tissues.

the name of a natural person living at the time of the application unless the person has given written consent to the name of the variety; or

the name of a natural person who died within the period of 10 years before the application unless the legal personal representative of the person has given written consent to the name of the variety; or

the name of a corporation or other organisation, unless the corporation or other organisation has given its written consent to the name of the variety.

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

the local application is accompanied with a claim to have the date of lodgment of the foreign application treated as the priority date for the purposes of the local application; and

the local application is accepted;

the person is entitled to have the date of lodgment of the foreign application treated as the priority date for the purposes of the local application, subject to subsections (3) and (4).

no other application has, or, if the application were to meet the requirements of paragraphs (b) and (c), would have, an earlier priority date in the variety; and

the application complies with the requirements of section 26; and

the application establishes a prima facie case for treating the plant variety as distinct from other varieties;

the Registrar must accept the application.

notify the applicant that the application has been accepted; and

as soon as possible after notifying the applicant—give public notice of the acceptance of the application.

notify the applicant of the rejection and of the reasons for the rejection; and

as soon as possible after notifying the applicant—give public notice of the rejection of the application.

after an application for PBR in a plant variety has been accepted; but

before concluding the examination of that application (including the subsequent detailed description of that variety) and of any objection to the application;

the right of the applicant to apply for PBR in a particular plant variety is assigned to, or has been transmitted by will or operation of law to, another person, that other person may request the Registrar, in writing, to vary the application so that that other person is shown as the applicant.

after an application for PBR in a plant variety has been accepted; but

before concluding the examination of that application (including the subsequent detailed description of that variety) and of any objection to the application;

the applicant requests the Registrar, in writing, to vary the application in any other respect other than that referred to in subsection (1), the Registrar may, in his or her discretion, vary the application in accordance with the request.

that the request has been rejected; and

of the reasons for the rejection.

of the particulars of the request; and

that the request has been rejected; and

of the reasons for the rejection.

is varied because of a request under subsection 31(1); or

is varied because of a request under subsection 31(5) in a significant respect;

the Registrar must, as soon as practicable, give public notice of particulars of the variation.

particulars of the characteristics that distinguish the variety from other plant varieties the existence of which is a matter of common knowledge; and

particulars of:

any test growing carried out, including a test growing carried out as required under section 37, to establish that the variety is distinct, uniform and stable; and

any test growing carried out as required under section 41 or 41E (both of which deal with test growing of essentially derived varieties); and

if the variety was bred outside Australia—particulars of any test growing outside Australia that tend to establish that the variety will, if grown in Australia, be distinct, uniform and stable; and

such other particulars (if any) as are required by the approved form;

and must be accompanied by a certificate, in the approved form, verifying the particulars of the detailed description, completed by the approved person nominated in the application as the approved person in relation to that application.

unless paragraph (b) applies—within 12 months after the application has been accepted; and

if the detailed description has been given to the Registrar before the end of that period—at the time when the description was given;

pay to the Commonwealth such examination fee as is prescribed.

the plant variety to which the application relates is subject to biosecurity control; or

a biosecurity control order is in force in relation to the plant variety to which the application relates; or

a biosecurity response zone determination is in force and the plant variety to which the application relates is in the biosecurity response zone.

the plant variety is released from biosecurity control; or

the biosecurity control order ceases to be in force in relation to the plant variety; or

the biosecurity response zone determination ceases to be in force.

that his or her commercial interests would be affected by the grant of that PBR to the applicant; and

that the Registrar cannot be satisfied, in relation to that application, of a matter referred to in a paragraph of subsection 26(2) or in subparagraph 44(1)(b)(i), (ii), (iii), (iv), (v), (vi), (vii) or (viii);

may lodge a written objection to the grant of PBR with the Registrar at any time after the giving of that public notice of acceptance of the application and before the end of the period of 6 months starting with the public notice of that detailed description.

particulars of the manner in which the person considers his or her commercial interests would be affected; and

the reasons why the person considers that the Registrar cannot be satisfied of a matter referred to in paragraph (1)(b).

the applicant; or

the applicant’s authorised agent; or

the Minister; or

the Registrar; or

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

a person prescribed for the purposes of this subsection.

an application for PBR that has been accepted; or

an objection to such an application for PBR; or

a request for revocation of PBR;

the Registrar decides that there should be a test growing or a further test growing of the variety to which the application, objection or request relates, the Registrar:

must notify that decision:

to the person who made the application, objection or request; and

in the case of an objection to an application for PBR—also to the applicant; and

in the case of a request for revocation of PBR—also to the grantee; and

may also notify that decision to any other person whom the Registrar considers appropriate if the test growing or further test growing is a comparative test growing.

must specify the purpose of the test growing; and

may require the person:

to supply the Registrar with sufficient plants or sufficient propagating material of plants of the variety, and with any necessary information, to enable the Registrar to arrange a test growing; or

to make arrangements for an approved person to supervise the test growing, to supply the approved person with sufficient plants or propagating material to enable the test growing, to give the Registrar a copy of the records of observations made during the test growing and to certify the records of observations so provided;

whichever the Registrar considers appropriate.

in the case of trees and vines, or propagating materials of trees and vines—within 2 years from the date the notification is given; and

in the case of other species of plant or propagating materials of other species of plant—within 12 months from that date.

if the person is the grantee—revoke PBR, in the plant variety to which the notification relates, under section 50; or

if the person made an application, objection or request—decide not to further proceed with the application, objection or request for revocation.

if it is conducted to deal with an application for PBR—by the applicant for PBR; or

if it is conducted to deal with an objection to an application for PBR:

by the applicant for PBR, where the test growing shows that there are valid reasons for the objection; or

by the objector, in any other case; or

if it is conducted to deal with a request for revocation of PBR:

by the grantee, where the test growing shows that there are valid reasons for the request; or

by the person making the request, in any other case.

the person or organisation requesting the test growing under subsection (6) was an applicant for PBR; and

the test growing had been decided on in relation to that application.

(a) a plant variety (the subject variety):

was bred outside Australia; or

was bred in Australia but, before an application for PBR was made in Australia, an application for PBR was made in a contracting party other than Australia; and

an application under this Act for PBR in the variety has been accepted;

the variety is not to be taken to have a particular characteristic unless subsection (2), (3), (4) or (5) applies to the variety.

a test growing of the variety has been carried out outside Australia; and

that test growing has demonstrated that the variety has the particular characteristic; and

under an agreement between Australia and the country in which the test growing was carried out, Australia is required to accept that the variety has that particular characteristic.

a test growing of the variety carried out outside Australia has demonstrated that the variety has the particular characteristic; and

that test growing of the variety is equivalent to a test growing of the variety in Australia.

a test growing of the variety carried out outside Australia has demonstrated that the variety has the particular characteristic; and

any test growing of the variety carried out in Australia would probably demonstrate that the variety has that characteristic; and

if a test growing of the variety in Australia sufficient to demonstrate whether the variety has that characteristic were to be carried out, it would take longer than 2 years.

the application is disposed of; or

if the Registrar gives the applicant a notification under subsection (2)—the notification is disposed of;

whichever occurs first.

PBR will not be granted or is unlikely to be granted to the applicant; or

a decision has been taken under paragraph 37(2B)(b) not to proceed with the application; or

the application has been withdrawn; or

the applicant has given an undertaking to a person (whether or not for consideration) not to commence proceedings for infringement of the right of which the applicant is deemed to be the grantee; or

at least 12 months have elapsed since the publication of the detailed description that was given to the Registrar under subsection 34(1);

the Registrar may notify the applicant that this section will cease to apply to that variety on a day specified in the notification unless, before that time the applicant has made a submission to the Registrar providing reasons why this section should not cease to apply.

the end of the period within which application may be made to the ART for a review of the giving of the notification; or

if such an application is made to the ART—the application is withdrawn or finally determined, whether by the ART or a court.

the Federal Court, or a Judge of that Court, under subsection 178(2) of the ART Act; or

the Federal Circuit and Family Court of Australia (Division 2), or a Judge of that Court, under subsection 178(2) of the ART Act (as it applies because of subsection 179(4) of that Act);

where an appeal is begun in that court from a decision of the ART.

the grantee of PBR in a plant variety; or

an exclusive licensee of such a grantee.

another person is the grantee of, or has applied for, PBR in the second variety; and

the eligible person is satisfied that the second variety is essentially derived from the initial variety; and

the initial variety has not itself been declared (under section 40 or 41D) to be essentially derived from another variety in which PBR has been granted.

make an objection, under section 35, to the granting of PBR in the second variety; and

in the alternative, if PBR is granted to another person in the second variety—apply under subsection (1A) for a declaration that the second variety is essentially derived from the initial variety.

is the subject of an application for PBR; and

is also the subject of an application for a declaration of essential derivation;

then, unless and until the Registrar decides to grant the application for PBR:

the Registrar must not make the declaration of essential derivation; but

the Registrar may, in his or her discretion:

examine both the application for PBR and the application for a declaration of essential derivation at the same time; and

for the purpose only of examining the application for a declaration of essential derivation—treat the applicant for PBR as the grantee of PBR in the variety.

be in the approved form; and

be accompanied by the prescribed fee in respect of the application.

refuse to declare the second variety essentially derived from the initial variety; and

notify each eligible person in relation to the initial variety (including the applicant) of the refusal and the reasons for it.

notify the applicant and the grantee of PBR in the second variety that the Registrar is so satisfied; and

notify the grantee of PBR in the second variety that, unless the grantee establishes, within 30 days after being so notified or such longer period as the Registrar allows, that the second variety is not an essentially derived variety of the initial variety, the Registrar will, at the end of that period, declare the second variety to be such an essentially derived variety.

the information presented by the grantee of PBR in the second variety; and

any information obtained from a test growing conducted in accordance with section 41; and

any other relevant information obtained by the Registrar;

the Registrar is not satisfied that the grantee of PBR in the second variety has rebutted the prima facie case, the Registrar must:

declare, in writing, that the second variety is an essentially derived variety of the initial variety; and

notify each eligible person in relation to the initial variety (including the applicant) of the declaration; and

notify the grantee of PBR in the second variety of the declaration and of the reasons for not being satisfied that the prima facie case has been rebutted.

notify each eligible person in relation to the initial variety (including the applicant) that he or she is so satisfied, and of the reasons for being so satisfied; and

notify the grantee of PBR in the second variety that he or she is so satisfied.

the references in that section to the grantee, in relation to that variety were references both to the person holding PBR in that variety and to the person holding PBR in the initial variety; and

the reference in subsection 19(4) to 2 years after the grant of PBR were a reference to 2 years after the grant of PBR in the second variety whether or not the declaration of essential derivation was made at the same time or a later time; and

a failure by the other person holding PBR in the initial variety or the person holding PBR in the second variety to co-operate in making the second variety available to the public in accordance with the requirements of subsection 19(1) was a failure of the grantee to comply with the requirements of that subsection.

(a) an eligible person applies for a declaration under initial variety) that another plant variety (the second variety) is essentially derived from the initial variety; andsection 40 in relation to a plant variety (the

in the course of that application the applicant establishes a prima facie case that the second variety is essentially derived from the initial variety.

the applicant;

the grantee of PBR in the second variety.

the applicant to supply the Registrar with sufficient plants or sufficient propagating material of plants of that variety and with any necessary information; and

the grantee of PBR in the second variety to supply the Registrar with sufficient plants or sufficient propagating material of plants of that second variety and with any necessary information;

to enable the Registrar to arrange a test growing.

the grantee of PBR in a plant variety; or

an exclusive licensee of such a grantee.

PBR has not been applied for, or granted, in the second variety; and

the eligible person is satisfied that the second variety is essentially derived from the initial variety; and

the initial variety has not itself been declared (under section 40 or 41D) to be essentially derived from another variety in which PBR has been granted.

Content of application

be in the approved form; and

be accompanied by such fee (if any) as is prescribed by the regulations in respect of the application.

such information as is required by the form that is relevant to establishing, on the balance of probabilities, that the second variety is:

essentially derived from the initial variety; and

a registrable plant variety within the meaning of section 43; and

either:

such information as is required by the form that is necessary to enable the Registrar to notify the application to the person (or persons) the applicant reasonably believes to be the breeder of the second variety; or

evidence that the applicant cannot comply with subparagraph (i), despite taking reasonable steps to obtain the information mentioned in that subparagraph.

each eligible person in relation to the initial variety other than the applicant; and

if the application includes sufficient information for the Registrar to do so—the person (or persons) the applicant reasonably believes to be the breeder of the second variety.

release of the information would cause competitive detriment to the applicant; and

the information is not in the public domain; and

the information is not required to be disclosed under another Australian law; and

the information is not readily discoverable.

a person notified under paragraph 41A(6)(b);

another person who claims to have an interest in the second variety.

if the Registrar notifies the application to a person (or persons) under paragraph 41A(6)(b)—the later of the following days:

the day the application is notified;

(ii) the day notification of the application is last published in the Plant Varieties Journal; or

(b) if the Registrar does not notify the application to a person (or persons) under paragraph 41A(6)(b)—the day notification of the application is last published in the Plant Varieties Journal.

Information given in accordance with the opportunity to be heard

the giving of written information at the request of the Registrar;

the giving of oral information at a hearing convened by the Registrar;

when, where and in what circumstances such a hearing may be convened;

the practice and procedure for any such hearings, including provision for the Registrar to determine such practice and procedure (whether generally or in relation to a particular hearing);

the payment of any fees that are prescribed by the regulations in relation to the opportunity to be heard.

Interested person declines the opportunity to be heard

gives the Registrar notice that the person does not want to be heard; or

fails to give any information in accordance with the person’s opportunity to be heard under subsection (4).

declare in writing that the second variety is essentially derived from the initial variety; or

refuse to make such a declaration.

he or she is satisfied on the balance of probabilities that the second variety is:

essentially derived from the initial variety; and

a registrable plant variety within the meaning of section 43; and

the initial variety is not itself declared (under section 40 or this section) to be essentially derived from another plant variety.

the information in the application;

any information given by an interested person in accordance with the person’s opportunity to be heard under subsection 41C(4);

any information obtained in a test growing conducted in accordance with section 41E;

any other relevant information.

does not give the Registrar an address for service for the purposes of subsection 41C(2); or

declines the opportunity to be heard under subsection 41C(6).

Time for making decision

each eligible person within the meaning of section 41A (including the applicant);

each interested person who is required to be given an opportunity to be heard under subsection 41C(1).

a statement of reasons for the decision; and

a statement to the effect that, subject to the ART Act, application may be made to the ART for review of the decision to which the notice relates by or on behalf of a person or persons whose interests are affected by the decision.

Effect of declaration—reasonable public access

essentially derived from the initial variety; and

a registrable plant variety within the meaning of section 43.

the applicant; and

each interested person who is required to be given an opportunity to be heard under subsection 41C(1).

the applicant, within a reasonable period specified in the notification, to supply the Registrar with sufficient plants or sufficient propagating material of plants of the initial variety, and with any necessary information; and

each interested person notified under paragraph (2)(b), within a reasonable period specified in the notification, to supply the Registrar with sufficient plants or sufficient propagating material of plants of the second variety, and with any necessary information.

(a) an application for PBR in a plant variety (the PBR application) is made under section 24; and

the Registrar is satisfied that the plant variety in relation to which the PBR application is made is the same as the second variety.

Effect of decision

(a) the Registrar must not make a decision under original application); andsection 41D in relation to the application under section 41A (the

(b) the Registrar must treat the application under converted application) made under section 40 in relation to the initial variety and the second variety, subject to this section.section 41A as if it were an application (the

Notification of decision

each eligible person, within the meaning of section 41A, in relation to the initial variety (including the applicant under section 41A);

the applicant for PBR in the second variety;

each interested person, other than the applicant for PBR in the second variety, who is required to be given an opportunity to be heard under subsection 41C(1).

a statement of the reasons for the decision, and the effect of this section; and

in the case of the notification given under paragraph (3)(a) to the applicant under within 2 months after the date of the notification.section 41A—a statement to the effect that the applicant under section 41A may provide additional information under subsection (6)

for the purposes of a decision under subsection 40(7):

any information in the original application; and

any additional information given in accordance with subsection (6) of this section;

for the purposes of a decision under subsection 40(10) or (11):

any information in relation to the original application given by an interested person in accordance with the person’s opportunity to be heard under subsection 41C(4); and

any information in relation to the original application obtained in a test growing conducted in accordance with section 41E; and

any information mentioned in subsection 40(10) in relation to the converted application, including information obtained in a test growing conducted in accordance with section 41.

Time for making decision

the variety has a breeder; and

the variety is distinct; and

the variety is uniform; and

the variety is stable; and

the variety has not been exploited or has been only recently exploited.

in Australia—more than one year before that date; or

outside of Australia:

in the case of trees or vines—more than 6 years before that date; or

in any other case—more than 4 years before that date.

the sole purpose of the sale is for the person to multiply plant material of that plant variety on behalf of the breeder; and

under the agreement for the sale, immediately after the plant material is multiplied, property in the new plant material vests in the breeder.

field tests;

laboratory trials;

small-scale processing trials;

tests or trials prescribed for the purposes of this subsection.

the sale only involves plant material that is a by-product or surplus product of one or more of the following:

the creation of the variety;

a multiplication of the variety;

tests or trials covered by subsection (7B); and

the plant material is sold:

without identification of the plant variety of the plant material; and

for the sole purpose of final consumption.

an application for PBR in the variety has been lodged in a contracting party, or in a foreign country that is not a contracting party; and

the application is proceeding, or has led, to the grant of PBR.

propagating material of the plant variety;

harvested material of the plant variety;

products obtained from harvested material of the plant variety.

variety has the same meaning as in the 1991 Act of the Convention.

an application for PBR in a plant variety is accepted; and

after examining the application (including the subsequent detailed description) and any objection to the application, the Registrar is, or continues to be, satisfied that:

there is such a variety; and

the variety is a registrable plant variety within the meaning of section 43; and

the applicant is entitled to make the application; and

the grant of that right is not prohibited by this Act; and

that right has not been granted to another person; and

the name of the variety complies with section 27; and

propagating material of that variety has been deposited for storage, at the expense of the applicant, in a genetic resource centre approved by the Registrar; and

if the Registrar so requires, a satisfactory specimen plant of the variety has been supplied to the herbarium; and

all fees payable under this Act in respect of the application, examination and grant have been paid;

the Registrar must grant that right to the applicant.

an application for PBR in a plant variety is accepted; and

the plant variety is a variety of a species indigenous to Australia;

the Registrar must require supply of a satisfactory specimen plant of the variety to the herbarium.

an application for PBR in a plant variety is accepted; and

the Registrar is not satisfied of all of the matters referred to in paragraph (1)(b);

the Registrar must refuse to grant that right to the applicant.

an application for PBR in a plant variety has been varied under section 31; and

the variation relates to the detailed description of the variety that has been given to the Registrar; and

the Registrar has given public notice of the variation;

the Registrar must not grant, or refuse to grant, PBR in the variety until 6 months after giving public notice of the variation or of the last such variation.

of the refusal; and

of the reasons for the refusal.

(a) a person is the grantee of PBR in a plant variety (the initial variety); and

another person is the grantee of PBR in another plant variety; and

the other variety is declared to be essentially derived from the initial variety;

subsection (1) does not prevent PBR in the initial variety extending to the other variety.

a description, or description and photograph, of a plant of that variety; and

the name of the variety and any proposed synonym; and

the name of the grantee; and

the name and address of the breeder; and

the address for the service of documents on the grantee for the purposes of this Act as shown on the application for the right; and

the day on which the right is granted; and

such other particulars relating to the granting as the Registrar considers appropriate.

the fact that the declaration has been made; and

the day on which the declaration was made.

any other person who was entitled to make, but had not made, application for the right in the variety:

ceases to be entitled to make such application; and

is not entitled to any interest in the right; and

any other person who had made application for the right in the variety:

ceases to be entitled to have his or her application considered or further considered; and

is not entitled to any interest in the right.

from applying for a revocation of the rights under section 50; or

from instituting proceedings before a court or the ART in relation to the right; or

from applying for a declaration that the plant variety in which the right was granted is essentially derived from another plant variety in which the person holds PBR.

PBR in a particular plant variety is granted to a person; and

(b) another person (the eligible person) was entitled, at law or equity, to an assignment of the right to make an application for the PBR;

the eligible person is entitled to an assignment of the PBR.

the Registrar must give public notice of those conditions and give the grantee a copy of the instrument setting them out; and

the Registrar must enter details of those conditions in the Register.

the Registrar becomes satisfied that facts existed that, if known before the grant of that right or the making of that declaration, would have resulted in the refusal to grant that right or make that declaration; or

the grantee has failed to pay a fee payable in respect of that right or of that declaration within 30 days after having been given notice that the fee has become payable.

the Registrar is satisfied that a person to whom that right has been assigned or transmitted has failed to comply with section 21; or

the Registrar is satisfied that the grantee, without reasonable excuse, has failed to comply with the requirements of a notification under section 37; or

the Registrar is satisfied that the grantee has failed to comply with a condition imposed under section 49.

the Registrar has given the grantee, or any person to whom the Registrar believes that right has been assigned or transmitted, particulars of the grounds of the proposed revocation; and

the grantee or that other person has had 30 days after being given those particulars to make a written statement to the Registrar in relation to the proposed revocation.

the Registrar has given the grantee of PBR in the initial variety, or any person to whom the Registrar believes that that PBR has been assigned or transmitted, particulars of the grounds of the proposed revocation of that declaration of essential derivation; and

the grantee or that other person has had 30 days after being given those particulars to make a written statement to the Registrar in relation to the proposed revocation.

if no application for review of the revocation is made to the ART—at the end of the period within which such an application might be made; or

if such an application is made—at the time when the application is withdrawn, or finally determined, whether by the ART or by a court.

the Federal Court, or a Judge of that Court, under subsection 178(2) of the ART Act; or

the Federal Circuit and Family Court of Australia (Division 2), or a Judge of that Court, under subsection 178(2) of the ART Act (as it applies because of subsection 179(4) of that Act).

PBR in a plant variety is revoked in accordance with section 50; or

the Registrar is served with a copy of an order of a court given under subsection 54A(2) revoking that right;

the Registrar must:

enter particulars of the revocation in the Register; and

give public notice of the revocation.

enter particulars of the surrender in the Register; and

give public notice of the surrender.