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Plant Breeder’s Rights Regulations 1994

Statutory Rules 1994 No. 352 as amended

made under the

This compilation was prepared on 1 October 2012
taking into account amendments up to SLI 2012 No. 66

Prepared by the Office of Parliamentary Counsel, Canberra

1 Name of regulations [see Note 1]

These regulations are the Plant Breeder’s Rights Regulations 1994.

2 Commencement [see Note 1]

These Regulations commence on the date of commencement of the Plant Breeder’s Rights Act 1994.

3 Interpretation

(1) In these Regulations, unless the contrary intention appears:

Act means the Plant Breeder’s Rights Act 1994.

approved means, for doing an action, means the means specified for the action by the Registrar in a notice made under regulation 4A and published by the Registrar.

authorised testing establishment means an establishment authorised under regulation 3A.

(2) In the Schedule, a reference to a section or subsection, is a reference to that section or subsection of the Act.

3A Authorised testing establishment

(1) For the purposes of conducting a test growing of a plant variety under section 37 of the Act, the Secretary may authorise, in writing, an establishment to conduct the test growing.

(2) An establishment may be authorised only if the Secretary 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 Secretary must give the operator of the establishment written notice of:

(a) the Secretary’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 Secretary to refuse to authorise an establishment.

3B Employees to whom Registrar may delegate (Act s59 (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 s59 (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.

3D Employees to whom Secretary’s powers may be subdelegated (Act s59 (4))

For subsection 59 (4) of the Act, the class of employee to whom the Secretary’s powers or functions may be delegated is an employee:

(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.

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 paragraph76A(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.

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.

4              Prescribed fees

                The fee payable under subsection 80 (2) of the Act for a matter set out in the Schedule is the fee specified in the Schedule for that matter.

4A           Approved means

         (1)   The Registrar may, by notice published by the Registrar, specify one or more means for doing an action mentioned in the Schedule.

Examples of actions

1   Making a request.

2   Lodging an application.

         (2)   The means may be an electronic means or any other means.

Note   The means become approved means when they are published.

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 Secretary 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 Secretary 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 Secretary 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 Secretary must give each person to whom subregulation (1) or (2) applies written notice of:

                (a)    the Secretary’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 Secretary:

                (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

Schedule           Fees

(regulations 4 and 4A)

Notes to the Plant Breeder’s Rights Regulations 1994

Note 1

The Plant Breeder’s Rights Regulations 1994 (in force under the Plant Breeder’s Rights Act 1994) as shown in this compilation comprise Statutory Rules 1994 No. 352 amended as indicated in the Tables below.

Table of Instruments

Table of Amendments