Regulations can be made under subsection 22(3) of the Plant Breeder’s Rights Act 1994 (PBR Act) to extend the duration of protection of PBR in a plant variety in a specified taxon.
In the absence of a specific regulation, the duration of PBR protection in the case of trees and vines is 25 years. In the case of other plant varieties, it is 20 years.
Extending the duration of protection for a specific plant taxon is a legislative decision made by government. Regulations are made by the Governor-General on the advice of the Minister responsible for administering the PBR Act. Interested parties should submit requests to extend the duration of PBR protection through the Policy Register. We will then consider the policy issue.
Policy issues can by lodged anyone, including:
- plant breeders
- organisations representing plant breeders
- organisations representing farmers.
How we administer policy issues
The policy issues we consider may be given effect through regulations. The PBR regulations may provide that PBR in a plant variety, included within a specified taxon, lasts for a longer period than is specified in the PBR Act.
On receipt of a policy issue, we assess the issue to determine whether there is evidence of a problem that would justify detailed consideration and the possible making of regulations. This is weighed up against other open policy issues, their urgency and our available resources to determine whether an issue moves forward to detailed review, is placed on hold, or is not considered further.
If we are satisfied that there is sufficient evidence of a policy problem that warrants consideration ahead of other issues, we will conduct a detailed policy analysis of the issue, including any appropriate consultation. A regulatory impact assessment must be undertaken, consistent with the government’s deregulation policies. These policies are reflected in the Australian Guide to Regulation. The Guide states that every policy option must be carefully assessed, its likely impact costed and a range of viable alternatives considered in a transparent and accountable way.
The following questions are relevant to the policy assessment of proposed new regulation:
- What is the problem to be solved?
- Why is government action needed?
- What policy options are to be considered?
- What is the likely net benefit of each policy option?
- Who will be consulted about these options and how will consultation occur?
- What is the best option from all considered options?
- How will the chosen option be evaluated?
What sort of evidence we may consider
The purpose of plant breeder’s rights (PBR) legislation is to provide an incentive for research and innovation to encourage the development of new plant varieties, and the transfer and dissemination of that new knowledge for the benefit of society. Regulations made under PBR legislation should be consistent with this purpose.
Whether regulations should be made will be considered on a case-by-case basis. Factors that may be considered include:
- the reason why an extension is being requested i.e. why the existing 20 or 25 year term is inadequate to promote innovative plant breeding within the requested taxon
- an evidence-based explanation of how an extension will address the problem
- the possible impact on third parties affected by the extension
- the perceived consequences if an extension is not granted
- the breadth of the taxonomic category for which an extension is sought
- the anticipated commercial life of plant varieties within that specific taxon
- the overall net benefit to the community of extending the duration of protection.
Possible outcomes and timeframes
The timeframe from lodging a request through the policy register, to regulations being made, may vary. However, the making of regulations is a lengthy process.
We will conduct stakeholder consultation with all parties that could be affected by the making of regulations to extend the duration of protection of a taxon, as required by the Australian Government Guide to Regulation and section 69 of the PBR Act.
Once detailed policy analysis and consultation has been completed, the Minister may then make a decision to proceed with making regulations if satisfied that it is appropriate to do so, taking into account all the factors discussed above.
Regulations to extend the duration of protection for a specific taxon will only apply prospectively, i.e. to new plant breeder’s rights granted after the regulation has been made. Regulations cannot apply retrospectively to extend the life of already existing rights. If regulations are made, these may be reviewed at a later date during the course of government business.