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Wednesday, 22 June 1994
Page: 1907


Senator TAMBLING (5.14 p.m.) —The Plant Breeder's Rights Bill 1994 will replace the Plant Variety Rights Act 1987 to enable plant breeders to apply for and receive proprietary rights for new varieties of plants they develop. Plant breeders' rights were extensively discussed between 1981 and 1986, concluding with an exhaustive inquiry by the Senate Standing Committee on Natural Resources. The committee recommended that a plant variety rights scheme be established in line with the 1987 Convention of the International Union for the Protection of New Varieties of Plants, generally referred to as UPOV, and that Australia accede to that convention.

  Before the 1987 legislation Australia had not been able to keep up with the latest varieties in a host of areas, particularly in horticulture. This was because breeders' rights were not protected in Australia and therefore they were not prepared to allow their varieties to come to Australia. The reason for rewriting and renaming the legislation is principally to conform to the 1991 revision of the UPOV convention.

  The name change from `Plant Variety Rights' to `Plant Breeder's Rights' is in line with the convention and common usage internationally. The new legislation is expected to provide a greater stimulus to innovation than the 1987 act by encouraging increased investment in plant breeding and technology transfer. This is needed to maintain Australia's access to new plant varieties as a result of work carried out either in Australia or overseas. Grain growers are particularly concerned about the need for new varieties to improve protein levels. State government breeding programs have been cut back and there is a need to stimulate plant breeding.

  The bill, with certain defined exemptions and extensions, provides exclusive right to the following acts of exploitation of the propagating material of new varieties: production or reproduction of the material; conditioning the material for the purpose of propagation; offering the material for sale; selling the material; importing the material; exporting the material; and stocking the material for any of the above reasons.

  The bill provides for the extension of the right to include essentially derived and certain dependent varieties and prescribes the actions that may be taken to have a variety declared essentially derived. A plant variety is taken to be an essentially derived variety of another plant variety if it is predominantly derived from that other plant variety; it retains the essential characteristics that result from the genotype or combination of genotypes of that other variety; and it does not exhibit any important, as distinct from cosmetic, features that differentiate it from that other variety.

  The bill extends the breeder's right to the harvested material where the plant was propagated without authorisation but only if the grantee of the right has not had a reasonable opportunity to exercise the right to the propagating material. Public interest provisions in the bill allow exemptions to the exclusive right to propagate material when acts are done by any person privately and for non-commercial purposes, for bona fide experimental and research purposes and for the purpose of breeding other plant varieties.

  A further exemption is the farmer's privilege or farm-saved seed exemption which permits the farmer to save seed from a crop to plant a future crop on his own land. The bill provides for certain groups or species of plants to be declared by regulation to be exempt from this provision.  The bill also extends penalties to include penalties for infringement of the breeder's right, but provides for innocent infringement as a defence against unintentional infringement. The penalty for a company deliberately infringing the breeder's right is a maximum of $250,000, and $50,000 for an individual. The legislation has the strong support of the National Farmers Federation, the Grains Council of Australia, the Seed Industry Association of Australia and the Nursery Industry Association of Australia.

  I note the report of the Senate Standing Committee on Rural and Regional Affairs. Following consideration of this bill, the committee recommended an amendment that public notices should be given when an exemption pursuant to clause 17(2) is being considered by the minister and when an extension of PBR pursuant to clause 22(3) is being considered by the minister. I am pleased to indicate that the coalition will support these amendments and the legislation as a whole.