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Thursday, 30 June 1994
Page: 2512


Senator SHERRY (Parliamentary Secretary to the Minister for Primary Industries and Energy) (7.34 p.m.) —I table a supplementary explanatory memorandum relating to the government amendments to be moved to this bill. I seek leave to move the 11 government amendments together.

  Leave granted.


Senator SHERRY —I move:

(1)Clause 34, page 19, lines 5, 6 and 7, omit paragraph (4)(b), substitute the following paragraph:

  "(b) particulars of:

      (i)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

        (ii)any test growing carried out as required under section 41; and".

(2)Heading to Division 2 of Part 4, page 31, line 35, insert "or declaration of essential derivation" after "Plant Breeder's Right".

(3)Clause 50, page 31, lines 37 to 40 and page 32, lines 1 to 3, omit subclause (1) substitute the following subclause:

    "(1) The Secretary must revoke PBR in a plant variety or a declaration that a plant variety is essentially derived from another plant variety if:

    (a)the Secretary 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

    (b)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.".

(4)Clause 50, page 32, lines 9 to 12, subclause (3), omit the subclause, substitute the following subclause:

  "(3) If the Secretary revoked PBR in a plant variety or a declaration that a plant variety is essentially derived from another plant variety, the Secretary must, within 7 days after the decision to revoke was taken, by notice given to the grantee of the right that has been revoked or of the right that is affected by the giving of the declaration of essential derivation, tell that grantee of the decision and set out the reasons for the revocation.

(5)Clause 50, page 32, after subclause (4) insert the following subclause:

  "(4A) The Secretary must not under this section, revoke a declaration that a plant variety (the `initial variety') is essentially derived from, another plant variety unless:

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

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

(6)Clause 50, page 32, line 20, after "PBR in a plant variety" insert "or of a declaration that a plant variety is essentially derived from another plant variety".

(7)Clause 50, page 32, lines 31 to 34, omit subclause (8), substitute the following subclauses:

  "(8) A person whose interests are affected by the making of a declaration that a plant variety is essentially derived from another plant variety may apply to the Secretary, in writing, for a revocation of that declaration.

  "(9) If the Secretary decides not to revoke PBR in a plant variety in accordance with an application under subsection (7) or not to revoke a declaration of essential derivation in accordance with subsection (8), the Secretary must, within 7 days of making that decision, by notice in writing to the person who applied for the revocation, tell the person of the decision and set out the reasons for the decision.".

(8)Clause 50, page 32, lines 35 and 36, omit the Note, substitute the following Note:

"Note:A decision under this section to revoke, or refuse to revoke, PBR or a declaration of essential derivation is reviewable by the AAT under section 76.".

(9)Clause 73, page 40, lines 10 to 14 inclusive, omit subclause (3).

(10)Clause 76, page 42, line 32, insert in subparagraph (1)(b)(xvi) "or a declaration that a plant variety is essentially derived from another plant variety" after "variety".

(11)Clause 79, page 43, after subparagraph (2)(a)(i) insert the following subparagraph:

      "(ia)fees payable in respect of the making of applications for declarations of essential derivation, the examination of those applications and the making of those declarations; and".


Senator Harradine —Could the parliamentary secretary favour us with the reason why we should vote for these amendments?


Senator SHERRY —Certainly. The amendments fall into two categories. The first category is best described as housekeeping amendments which have arisen from a further examination of the bill by the government and relate to clauses 34, 50, 73, 76 and 79. The amendment to clause 79 is to extend the power to set fees for essential derivation, which is consistent with policy adopted for similar applications throughout the bill but which was unintentionally omitted from the bill. The revocation provisions apply in the bill to grants of the breeder's right, and amendments are proposed to extend the provisions of revocation of breeders' rights under section 50 to essentially derived varieties. It is proposed to delete the superfluous subclause 73(3) since the infringement related to an essentially derived variety as provided for under section 53. Finally, the amendment of clause 76 is to provide for an AAT review of decisions by the secretary in relation to essential derivation, which again was unintentionally omitted from the bill.

  Amendments agreed to.