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Bills Digest No. 42 1999-2000 Agriculture, Fisheries and Forestry Legislation Amendment Bill (No. 2) 1999

Numerical Index | Alphabetical Index

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

Passage History

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.

Purpose

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.

Background

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.

Main Provisions

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

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.

Endnotes

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.

Contact Officer and Copyright Details

Ian Ireland
20 August 1999
Bills Digest Service
Information and Research Services

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Published by the Department of the Parliamentary Library, 1999.