Bills Digest No. 42 1999-2000
Agriculture, Fisheries and Forestry Legislation Amendment Bill (No. 2)
1999
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have
any official legal status. Other sources should be consulted to determine
the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer & Copyright Details
Agriculture, Fisheries and Forestry Legislation Amendment
Bill (No. 2) 1999
Date Introduced: 30 July 1999
House: House of Representatives
Portfolio: Agriculture, Fisheries
and Forestry
Commencement: The amendments
relating to the Rural Adjustment Act 1992 (Schedule 6) are taken
to have commenced on 1 April 1999. The other amendments detailed in this
Digest commence on Royal Assent.
This is an omnibus Bill which makes
a number of largely technical amendments to legislation administered by
the Agriculture, Fisheries and Forestry portfolio. The major amendments:
- increase the 7 day notification period of assignments of Plant Breeders
Rights (PBR) to 30 days
- provide a transitional arrangement which will allow PBR applicants
affected by the replacement of the Plant Variety Rights Act 1987
by the Plant Breeders Rights Act 1994 the opportunity to have
their applications reinstated
- change the name of the Rural Adjustment Scheme Advisory Council to
the National Rural Advisory Council and change the functions of the
Council, and
- impose additional record keeping requirements on wine manufacturers.
As there is no central theme to the Bill, a brief background
to each major amendment is set out in the 'Main Provisions' section of
this Digest.
Amendments to the Plant Breeder's Rights
Act 1994
The Plant Variety Rights Act 1987 established
the Plant Variety Rights Scheme.
The Plant Breeder's Rights Act 1994 granted proprietary
rights to plant breeders of particular new varieties in accordance with
the 1991 revision of the International Convention for the Protection of
New Varieties of Plants (the UPOV Convention). The Plant Breeder's
Rights Act 1994 (the PBR Act) replaced the Plant Variety Rights
Act 1987.
The Plant Breeder's Rights Office (PRBO) administers
the scheme within the Department of Agriculture, Fisheries and Forestry.
The Register of listed plant classes is published on a subscription basis
in the quarterly publication, Plant Varieties Journal, and is available
on the internet through http://www.daffa.gov.au/agfor/dpr/dpr.htm. Plant
breeder's rights are conferred for a period of 25 years for trees or vines,
and a period of 20 years for other plant varieties.
Subsection 21(1) of the PBR Act provides that if a person
claims that Plant Breeder's Rights (PBR) was assigned or transmitted,
the claimant must inform the Registrar of Plant Breeder's Rights that
the claimant has acquired that right, giving particulars of the way in
which that right was acquired, within 7 days of acquiring that right.
Subsection 21(3) of the PBR Act provides that if the
Registrar of Plant Breeder's Rights enters the name of the PBR claimant
on the Register as the holder of PBR, the Register must within 7 days
after doing so, give notice to the claimant and the person who was the
holder before the entry was made, stating that the entry has been made.
The effect of items 1 and 2 of Schedule
1 is increase the 7 day notification periods to 30 days.
Section 35 of the PBR Act deals with objections to an
application for a PBR. Item 3 of Schedule 1 inserts a new
subsection 35(2A) in the PBR Act that provides that an objection to
an application has no effect unless it is accompanied by the prescribed
fee.
Section 37 of the PBR Act deals with the test growing
of plant varieties. Under the section, in dealing with an application
for PBR that has been accepted, an objection to such an application, or
a request for a revocation of PBR, the Secretary can determine that there
should be a test growing or a further test growing of the variety to which
the application, objection or request relates. Item 5 of Schedule
1 inserts new subsections 37(6) and 37(7) in the PBR
Act that provide:
- where a contracting party, or a national or organisation of a contracting
party, requests the Secretary to conduct in Australia a test growing
of a plant variety, the Secretary may decide to do so, and
- where the Secretary so decides to conduct a test growing, the person
or organisation requesting the test growing is to treated as if they
were an applicant for PBR and a test growing had been decided on in
relation to that application.
Note: The term 'contracting party' is defined
in the PBR Act to mean a State, or inter-governmental organisation,
that is a party to the International Convention for the Protection of
New Varieties of Plants.
Item 7 of Schedule 1 provides that where:
- a person first sold a plant variety in the territory of a contracting
party other than Australia between 10 November 1988 and 9 November 1990
- the person lodged an application for PBR under the PBR Act between
4 and 6 years after the date of first sale, and
- the application was rejected only because of the operation of subsection
43(6) of the PBR Act;
the Registrar may further consider the application.(1)
The above will only apply for six months from the time
of commencement of this item.
Note: The rationale for this amendment given
in the Government's Explanatory Memorandum is that '[w]hen the PBR Act
was introduced it replaced the previous Plant Variety Rights Act
1987 and in doing so, reduced the allowable period of prior sale
for most new plant varieties from 6 years to 4 years. A number of applicants
found that the change meant their eligibility to apply for rights had
expired up to two years earlier. The proposed transitional arrangement
will allow affected applicants the opportunity to have their applications
reinstated'.(2)
Amendments to the Rural Adjustment Act
1992
The Rural Adjustment Scheme Advisory Council (RASAC)
is a statutory body established under the Rural Adjustment Act 1992
(the RAA) with the following statutory objectives:
- to foster the development of a more profitable farm sector that is
able to operate competitively in a deregulated financial and market
environment, and
- to improve the competitiveness of the farm sector in a sustainable
manner.(3)
The functions of RASAC include:
- to recommend to the Minister an ongoing 3 year plan for broad strategic
directions for the Rural Adjustment Scheme (RAS) and a proposed annual
program and budget for the RAS
- to provide the Minister with a strategic and national view of the
operations of the RAS, and
- to provide the Minister with regional perspective's on the operations
of the RAS.
Effectively, the RAS ceased to operate as at 30 June
1998, being replaced by the current Government's Agriculture - Advancing
Australia policy package. The rationale for the amendments proposed
by the Bill is that:
As RAS not longer provides new funding, the amendments
more appropriately define the functions for the advisory council to
undertake. The redefined roles and functions include advising the Minister
on rural adjustment and regional issues generally, as well as exceptional
circumstances applications.(4)
The effect of item 1 of Schedule 6 is to
change the name of RASAC to the National Rural Advisory Council.
Item 5 of Schedule 6 substitutes a new
section 8 in the RAA which provides that the function of the National
Rural Advisory Council is to give the Minister such advice and information
as the Minister requests about the following matters:
- rural adjustment generally
- regional issues
- matters relating to declarations of exceptional circumstances
- training issues, and in particular the Farm Business Improvement Program,
and
- any other matter that the Minister requests advice or information
about.
Amendments to the Australian Wine and
Brandy Corporation Act 1980
Section 4 of the Australian Wine and Brandy Corporation
Act 1980 (AWBC Act) defines the term 'wine' to mean:
an alcoholic beverage produced by the complete or partial
fermentation of fresh grapes or products derived solely from fresh grapes,
or both.
Item 1 of Schedule 7 adds to the definition
of 'wine' by providing that wine includes a grape product declared by
the regulations to be wine for the purposes of the AWBC Act.
Section 39C of the AWBC Act defines the term 'examinable
document' to mean:
(a) any document required to
be kept under this Part; or
(b) any wine label or other
document relating to the vintage, variety or geographical indication of
wine goods; or
(c) any document relating
to advertising the vintage, variety or geographical indication of wine
goods.
The term 'examinable document' is important as it relates
to powers accorded to inspectors to police the Label Integrity Program
(LIP). LIP is a recording system for the manufacture of wine that provides
an audit trail from finished product back to the purchase of the grapes
at the winery. The LIP recording system is concerned with any wine that
has a label claim as to vintage, variety or geographical indication. Item
3 of Schedule 7 inserts a new subparagraph 39C(d) which
provides that an 'examinable document' includes any other document that
is relevant to monitoring or enforcing compliance with a label law.
Sections 39G, 39H, 39J, 39K, 39M, 39N and 39P-39R of
the AWBC Act impose certain record keeping requirements relating to label
claims. Section 39W provides that where under the sections listed above
a record relating to wine or grape extract is to show specified characteristics
of the wine or extract, the record has to display:
- the vintage of the wine or extract
- the variety of the wine or extract, or
- the geographical indication of the wine or extract.
New subsections 39W(2) and 39W(3), which are inserted
in the AWBC Act by item 15 of Schedule 7, extend the record
keeping requirements relating to LIP. Specifically, proposed subsection
38W(2) provides that the record must show details of every step the
wine manufacturer took in manufacture that changed or affected:
- the vintage of the wine or extract
- the variety of the wine or extract
- the geographical indication of the wine or extract
- the tank or other place or thing in which the wine or extract was
stored, or
- the volume of the wine or extract stored in any such tank, place or
thing.
Proposed subsection 39W(3) provides that the details
listed above must be in a form that allows for the history of a wine's
manufacture to be easily traced from the record, namely, in the form of
an audit trail. In addition, the proposed subsection requires that it
must be possible from the record for details of the steps taken, and results
of steps taken, to be easily checked for discrepancies by following the
sequence of recorded steps.
Section 39ZAAA of the AWBC Act makes it an offence for
a wine manufacturer who is required to make and keep a record relating
to label claims to:
- knowingly or recklessly fail to make or keep the record as required,
or
- knowingly or recklessly make or keep a record that is false, misleading
or incomplete.
The penalty for an offence under section 39ZAAA is a
maximum fine of $15 000.
A new subsection 39ZAAA is inserted in the AWBC
Act by item 17 of Schedule 7. It provides that in proceedings
for an offence against section 39ZAAA if the prosecution does not establish
the wine was a single wine or blend, but does prove, in either case, the
defendant would have committed an offence, the prosecution does not have
to prove whether the wine was a single wine or blend to prove an offence
had been committed.
- Subsection 43(6) of the PBR Act provides: 'For the purposes of this
section, a plant variety is taken to have been only recently exploited
if, at the date of lodging the application for PBR in the variety, propagating
or harvested material of the variety has not been sold to another person
by, or with the consent of, the breeder: (a) in Australia - more than
4 years before that date; or (b) in the territory of another contracting
party: (i) in the case of trees or vines - more than 6 years before
that date; or (ii) in the case of vines - more than 6 years before that
date.
- Agriculture, Fisheries and Forestry Legislation Amendment Bill (No.
2) 1999, Explanatory Memorandum, p 2.
- Rural Adjustment Act 1992, s. 3.
- Agriculture, Fisheries and Forestry Legislation Amendment Bill (No.
2) 1999, Explanatory Memorandum, p 4.
Ian Ireland
20 August 1999
Bills Digest Service
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ISSN 1328-8091
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