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PLANT BREEDER'S RIGHTS BILL 1994

Order read for the consideration of the bill in committee of the whole.

In the committee

Bill taken as a whole by leave.

Explanatory memorandum: The Parliamentary Secretary to the Minister for

Primary Industries and Energy (Senator Sherry) tabled a supplementary

explanatory memorandum relating to the Government amendments to be moved

to the bill.

On the motion of Senator Sherry the following amendments, taken together

by leave, were debated and agreed to:

Clause 34, page 19, paragraph (4)(b), lines 5 to 7, omit the paragraph,

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".

At end of heading to Division 2, page 31, add "or declaration of

essential derivation".

Clause 50, pages 31 and 32, subclause (1), line 37 (page 31) to line 3

(page 32), omit the subclause, 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.".

Clause 50, page 32, subclause (3), lines 9 to 12, omit the subclause,

substitute the following subclause:

"(3) If the Secretary revokes 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been revoked or of the right that is affected by the giving of the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.

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.".

Clause 50, page 32, subclause (5), line 20, after "PBR in a plant

variety", insert "or of a declaration that a plant variety is

essentially derived from another plant variety".

Clause 50, page 32, subclause (8), lines 31 to 34, omit the subclause,

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.".

Clause 50, page 32, Note, 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.".

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

Clause 76, page 42, subparagraph (1)(b)(xvi), line 32, after "variety",

insert "or a declaration that a plant variety is essentially derived

from another plant variety".

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".

On the motion of Senator Sherry the following amendment was agreed to:

After clause 68, page 39, insert the following clause:

Notices inviting submissions in respect of certain regulations

"68A.(1) Regulations must not be made for the purposes of subsection

17(2), 22(3) or 42(1) unless, before the making of the regulations and

before the Minister seeks any advice from the Advisory Committee

concerning those regulations:

(a) the Minister has, in accordance with section 68, given public

notice of the Minister's intention to make a regulation for the

purposes of that subsection in relation to a particular taxon

that is specified in the notice; and

(b) the notice has given a broad indication of the objectives of the

intended regulations and invited persons to make submissions to

the Minister concerning it within a period of 30 days after

publication of the notice.

"(2) If the Minister receives, in accordance with an invitation in a

public notice under subsection (1), a submission concerning an

intended regulation, the Minister must have regard to the submission

so made.

"(3) If the Minister seeks advice of the Advisory Committee concerning

an intended regulation, the Minister may comply with subsection (2):

(a) by providing to the Committee, at the time of requesting the

advice of that Committee, a copy of all submissions received;

and

(b) requesting the Advisory Committee to have regard to those

submissions in preparing its advice to the Minister.".

Senator Coulter moved the following amendments together by leave:

Clause 3, page 3, subclause (1), definition of "plant", omit the

definition substitute the following definition:

"plant" does not include any fungi, algae, bacteria, bacteroids,

mycoplasmas, viruses, viroids or bacteriophages;".

Clause 6, page 5, lines 14 to 18, omit the clause.

Debate ensued.

Question--That the amendments be agreed to--put.

The committee divided--

AYES, 10

Bell Bourne (Teller) Chamarette Coulter Harradine Kernot Margetts Spindler Teague Woodley

NOES, 44

Alston Baume Beahan Burns Calvert Carr Chapman Childs Coates Colston Cooney Denman Devereux Evans, Christopher Ferguson Foreman Gibson Herron Hill Jones Kemp Knowles Loosley Macdonald, Ian Macdonald, Sandy MacGibbon McGauran McKiernan Murphy Neal O'Chee (Teller) Panizza Parer Patterson Reid Sherry Short Tambling Tierney Troeth Vanstone Watson West Zakharov

Question negatived.

Senator Coulter moved the following amendment:

Clause 4, line 36 (page 4) to line 4 (page 5), omit the clause,

substitute the following clause:

Definition of essentially derived varieties

"4. A plant variety is taken to be an essentially derived variety of

another plant variety if its essential characteristics make such

derivation empirically the case.".

Debate ensued.

Question--That the amendment be agreed to--put and negatived.

Senator Coulter moved the following amendments together by leave:

Clause 11, page 6, at end of paragraphs (a), (b), (e) and (f), add "for

sale".

Clause 15, page 7, lines 18 to 30, omit the clause.

Debate ensued.

Question--That the amendments be agreed to--put and negatived.

On the motion of Senator Coulter the following amendment was debated and

agreed to:

Clause 19, page 9, at end of paragraph (3)(b), add "for sale".

Senator Coulter moved the following amendment:

Clause 11, page 6, line 11, after "Act", insert "and the Trade Practices

Act 1974".

Debate ensued.

Question--That the amendment be agreed to--put and negatived.

Senator Coulter moved the following amendments together by leave:

Clause 17, page 8, subclause (2), lines 16 and 17, omit the subclause.

Clause 63, page 37, subparagraph (2)(a)(i), lines 4 and 5, omit the

subparagraph.

Debate ensued.

Question--That the amendments be agreed to--put.

The committee divided--

AYES, 9

Bell Bourne (Teller) Chamarette Coulter Harradine Kernot Margetts Spindler Woodley

NOES, 38

Baume Beahan Burns Calvert Carr Childs Coates Colston Cooney Denman Devereux Evans, Christopher Faulkner Ferguson Foreman Forshaw Hill Jones Kemp Knowles Loosley Macdonald, Sandy McGauran Murphy Neal O'Chee Panizza (Teller) Patterson Reid Sherry Tambling Teague Tierney Troeth Vanstone Watson West Zakharov

Question negatived.

Senator Coulter moved the following amendments together by leave:

Clause 26, page 13, after paragraph (2)(e), insert the following

paragraph:

"(ea) a statement of the essential characteristics of the plant

variety; and".

Clause 22, page 11, subclause (3), lines 30 to 32, omit the subclause.

Clause 63, page 37, subparagraph (2)(a)(ii), lines 6 to 8, omit the

subparagraph.

Debate ensued.

Question--That the amendments be agreed to--put and negatived.

Senator Coulter moved the following amendment:

Clause 64, page 37, paragraph (1)(c), line 22, omit "producers" (twice

occurring), substitute "farmers".

Debate ensued.

Senator Coulter, by leave, amended his amendment to read as follows:

Clause 64, page 37, paragraph (1)(c), line 22, omit "producers" (twice

occurring), substitute "users".

Debate continued.

Question--That the amendment be agreed to--put and passed.

Senator Coulter moved the following amendment:

Clause 64, page 37, paragraph (1)(d), lines 25 and 26, omit "consumers,

and likely consumers, of", substitute "the public in relation to".

Debate ensued.

Question--That the amendment be agreed to--put and negatived.

Senator Coulter moved the following amendments together by leave:

Clause 73, page 40, lines 1 to 14, omit the clause.

Clause 75, line 35 (page 40) to line 41 (page 41), omit "73 or"

(wherever occurring).

Debate ensued.

Question--That the amendments be agreed to--put and negatived.

Senator Coulter moved the following amendment:

Clause 19, page 10, subclause (11) and Note, lines 22 to 26, omit the

subclause and Note.

Debate ensued.

Question--That the amendment be agreed to--put.

The committee divided--

AYES, 8

Bell Bourne (Teller) Chamarette Coulter Kernot Margetts Spindler Woodley

NOES, 41

Alston Beahan Burns Calvert Carr Childs Coates Colston Cooney Crowley Denman Devereux Evans, Christopher Faulkner Ferguson Foreman Forshaw Gibson Hill Jones Knowles Loosley Macdonald, Sandy McGauran McKiernan Minchin Murphy Neal O'Chee (Teller) Panizza Patterson Reid Sherry Tambling Teague Tierney Troeth Vanstone Watson West Zakharov

Question negatived.

Bill, as amended, agreed to.

Bill to be reported with amendments.

The Deputy President (Senator Crichton-Browne) resumed the Chair and the

Acting Deputy President (Senator Teague) reported accordingly.

On the motion of Senator Sherry the report from the committee was

adopted and the bill read a third time.