To Whom It May Concern:
Explanatory Statement re: Instrument approving the form of a certificate of grant of Plant Breeder’s Right (Instrument Approving Forms No. 1 of 2005) (the instrument) under the Plant Breeder’s Rights Act 1994 (the PBR Act).
Rule-maker : This Explanatory Statement is prepared by Nikolas Barrie Hulse, acting Registrar of Plant Breeder’s Rights (PBR), IP Australia, being the rule-maker, for the purposes of the Legislative Instruments Act 2003.
Purpose and Operation of Instrument: The purpose of the instrument is to approve a form for a PBR grant certificate for the purpose of granting PBR to applicants under s 44 of the PBR Act. Grant of PBR is central to the operation of the PBR scheme in Australia.
The form is usually filled out by the Registrar of PBR, not a member of the general public, in order to grant an intellectual property right.
The PBR Act stipulates that certificates must be in an ‘approved form’. The instrument approving forms, with reference to section 7 of the PBR Act, is a legislative instrument as defined by the Legislative Instruments Act 2003.
Documents incorporated by reference: Not applicable.
Consultation: The Plant Breeder’s Rights Advisory Committee, at their 35th meeting on 11 May 2005, were presented with the new certificate form. No adverse comments were received.
The Administrative Arrangements Order (AAO) sets out which Ministers are responsible for all Acts of the Australian Parliament. Under the AAO of 23 October 2004 responsibility for the PBR Act was transferred to the Minister for the Department of Industry, Tourism and Resources (DITR) from Minister for Department of Agriculture, Fisheries and Forestry (DAFF). No further consultation on the new certificate form was undertaken because the need to alter the certificate was compelled by the transfer of the Office under the AAO and no significant changes were made to the form of the old certificate.
The instrument is of machinery nature only and does not change the law.
Retrospectivity: The instrument does not have retrospective effect. The instrument commences on registration, as per section 12(1)(d) of the Legislative Instruments Act 2003.
NIKOLAS BARRIE HULSE
Acting Registrar of Plant Breeder’s Rights
IP Australia
Overview
The Instrument Approving Forms No. 1 of 2005, enacted on 28 June 2005, was introduced to address the need for an approved form of certificate for the grant of Plant Breeder's Rights (PBR) in Australia. This legislation was enacted under the authority of the Legislative Instruments Act 2003 by Nikolas Barrie Hulse, acting Registrar of Plant Breeder’s Rights at IP Australia. The Plant Breeder’s Rights Act 1994 mandates that certificates of grant must be in an approved form, and this instrument serves to formalise the certificate format required for granting these rights to applicants. The policy objective is to ensure that the certificates of grant are consistently formatted and comply with the requirements set out in the PBR Act. The instrument itself is administrative, does not alter the substantive law, and has no retrospective effect, commencing upon registration.
Scope and Application
The Instrument Approving Forms No. 1 of 2005, under the Plant Breeder’s Rights Act 1994, serves a specific administrative purpose within the framework of Australia's intellectual property laws. This instrument pertains to the approval of a form for a Plant Breeder’s Rights (PBR) grant certificate, which is necessary for the issuance of PBR to applicants in accordance with section 44 of the PBR Act. This legislative instrument is applicable to entities and individuals involved in the breeding and commercialisation of new plant varieties in Australia, ensuring that the certificates issued comply with the statutory requirements set forth by the PBR Act. The instrument applies nationally across Australia, aligning with the jurisdiction of the Commonwealth, and is a procedural tool facilitating the grant of intellectual property rights in the plant breeding sector. While the instrument itself does not alter the substantive law, its approval of the certificate form is integral to the operational mechanics of the PBR scheme. It is important to note that the instrument does not introduce any exclusions or exemptions and is purely administrative, focusing on the machinery of the law rather than its substantive content.
Key Provisions
The main operative sections of the Instrument Approving Forms No. 1 of 2005 (F2005L01853) pertain to the approval of a specific form for the Plant Breeder’s Rights (PBR) grant certificate under the Plant Breeder’s Rights Act 1994 (PBR Act). Specifically, section 7 of the PBR Act mandates that certificates must be in an ‘approved form’, and this instrument serves to approve such a form as outlined in section 44 of the PBR Act. The approved form is intended for use by the Registrar of PBR, who is responsible for granting PBR to applicants, and not for general public use. The purpose of this approval is to ensure that the certificate meets the legal requirements stipulated in the PBR Act.
The Act imposes several obligations and requirements on the parties it governs. Primarily, the Registrar of PBR must use the approved form when granting PBR to applicants, ensuring that the certificate adheres to the legal standards set forth in the PBR Act. This requirement is crucial for maintaining the integrity and enforceability of the granted rights. Additionally, the Registrar must ensure that the approved form is completed accurately and comprehensively to reflect the specific details of each PBR grant. The approved form must include all necessary information and meet the specified legal criteria to be considered valid under the PBR Act.
Under the PBR Act, any failure to comply with the requirements for the approved form of the PBR grant certificate could potentially lead to various consequences. Although the specific penalties for non-compliance are not detailed in the provided explanatory statement, it is understood that any breach of the PBR Act could result in civil or criminal penalties. Typically, breaches of intellectual property laws in Australia can lead to substantial fines and, in severe cases, imprisonment. The exact penalties would depend on the nature and severity of the breach, as well as the provisions of the PBR Act and other relevant legislation.