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PLANT BREEDER'S RIGHTS ACT 1994 - SECT 37

Test growing of plant varieties

             (1)  If, in dealing with:

                     (a)  an application for PBR that has been accepted; or

                     (b)  an objection to such an application for PBR; or

                     (c)  a request for revocation of PBR;

the Registrar decides that there should be a test growing or a further test growing of the variety to which the application, objection or request relates, the Registrar:

                     (d)  must notify that decision:

                              (i)  to the person who made the application, objection or request; and

                             (ii)  in the case of an objection to an application for PBR--also to the applicant; and

                            (iii)  in the case of a request for revocation of PBR--also to the grantee; and

                     (e)  may also notify that decision to any other person whom the Registrar considers appropriate if the test growing or further test growing is a comparative test growing.

Note:          A decision under this subsection to require a test growing is reviewable by the AAT under section 77.

             (2)  The notification, in addition to telling the person of the Registrar's decision:

                     (a)  must specify the purpose of the test growing; and

                     (b)  may require the person:

                              (i)  to supply the Registrar with sufficient plants or sufficient propagating material of plants of the variety, and with any necessary information, to enable the Registrar to arrange a test growing; or

                             (ii)  to make arrangements for an approved person to supervise the test growing, to supply the approved person with sufficient plants or propagating material to enable the test growing, to give the Registrar a copy of the records of observations made during the test growing and to certify the records of observations so provided;

                            whichever the Registrar considers appropriate.

          (2A)  A person to whom a notification is given under this section must comply with the requirements of the notification:

                     (a)  in the case of trees and vines, or propagating materials of trees and vines--within 2 years from the date the notification is given; and

                     (b)  in the case of other species of plant or propagating materials of other species of plant--within 12 months from that date.

          (2B)  If a person, without reasonable excuse, fails to comply with the requirements of a notification given under this section, the Registrar may:

                     (a)  if the person is the grantee--revoke PBR, in the plant variety to which the notification relates, under section 50; or

                     (b)  if the person made an application, objection or request--decide not to further proceed with the application, objection or request for revocation.

Note:          A decision not to further proceed with the application, objection or request for revocation is reviewable by the AAT under section 77.

             (3)  If a notification under this section contains the requirement referred to in subparagraph (2)(b)(i) and the applicant complies with the request, the Registrar must arrange to have the variety concerned test grown.

             (4)  After completion of a test growing arranged by the Registrar, any propagating material of the variety used in, or resulting from, the test growing, that is capable of being transported must be delivered to the person by whom propagating material of that variety was supplied for the purposes of the test growing.

             (5)  All of the costs associated with a test growing must be paid:

                     (a)  if it is conducted to deal with an application for PBR--by the applicant for PBR; or

                     (b)  if it is conducted to deal with an objection to an application for PBR:

                              (i)  by the applicant for PBR, where the test growing shows that there are valid reasons for the objection; or

                             (ii)  by the objector, in any other case; or

                     (c)  if it is conducted to deal with a request for revocation of PBR:

                              (i)  by the grantee, where the test growing shows that there are valid reasons for the request; or

                             (ii)  by the person making the request, in any other case.

             (6)  If a contracting party, or a national or an organisation of a contracting party, requests the Registrar to conduct in Australia a test growing of a plant variety, the Registrar may decide to conduct the test growing as so requested.

             (7)  If the Registrar decides to conduct a test growing under subsection (6), subsections (1), (2), (3), (4) and (5) apply to such test growing as if:

                     (a)  the person or organisation requesting the test growing under subsection (6) was an applicant for PBR; and

                     (b)  the test growing had been decided on in relation to that application.



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