Plant Variety Rights Bill

Members, we come now to Part 3. This is the debate on clauses 21 to 27, “Infringement and enforcement”. The question is that Part 3 stand part.

Part 3 of the bill sets out what constitutes an infringement of a plant variety right (PVR), how and when proceedings can be brought, and what relief is available. International Union for the Protection of New Varieties of Plants 91 requires that some measures be put in place to protect breeders’ interests between the filing of an application and the grant of a right. This is known as “provisional protection”. Different countries take different approaches to this issue.

The bill provides that while a PVR can be infringed during this period, proceedings cannot be commenced until after the grant is made. That is a change from the current Act, under which proceedings can commence during this period. Many submitters expressed concerns at this change; however, the problem with the approach that is in the current Act is that if a PVR is never granted, the defendant may incur considerable costs even though they were not actually infringing a PVR. The fact that proceedings can be taken in relation to infringements during the provisional protection period but only after a PVR is granted is sufficient to protect the breeder’s interests. This is the approach taken by our major trading partners, including Australia, the United Kingdom, and the EU.

Thank you very much, Madam Chair. Thanks to the Minister and others on this side of the Chamber who have been engaging, I think, in a really interesting discussion.

Hon Dr David Clark: Fruitful!

CHRIS PENK: Fruitful discussion indeed! So in Part 3 we’ve heard about infringements and remedies and so forth, so the Minister’s opening comments have been helpful. I do want to take him to Subpart 2, which is called infringement proceedings—that’s clause 27. So this provision is titled: “Types of relief available for infringement”. I wonder if the Minister, through this bill, is meaning to say that the court can grant only some types of remedies but not others. And the context, for anyone who’s following this debate with great interest, or at least following it, but without the bill in front of them, it says, “The relief that the court may grant for an infringement of a PVR includes—(a) an injunction; and (b) at the option of the plaintiff, damages or an account of profits.” So we’re having ruled in the things that can be awarded by the court, but I wonder if that implies that others can’t, or if maybe the bill is saying, “These ones can, and others may or may not.”? I think it would be a significant step, and I don’t say an incorrect one, but significant either way, for this House to derogate from the inherent jurisdiction of a court to hear a matter in relation, in this case, to plant variety rights—PVRs—and to tie the hands of that court and to say that only certain types of remedies can be offered; that seems to me would be an interesting exercise in those two different branches of Government respecting each other’s roles and responsibilities.

And it might be that I’ve got the wrong end of the stick. I didn’t have the benefit of the discussion at the select committee, as others have talked about, as chaired—no doubt ably and very capably—by our Jamie Strange. But if he, maybe, or others who are on the select committee, or indeed the Minister himself—and I see he’s consulting officials so I’ll keep talking a little bit longer to allow that, in case there should be no other contributions on Part 3, because I think it would be quite interesting and helpful to know the answer to that question. I sense that the Minister’s getting very close to being able to provide it, and I don’t know if Judith Collins, who’s made herself expert in these matters but also knows a thing or two about the law, might have a contribution to make as well.

Thank you, Madam Chair. Just to respond to the member’s questions: it is a non-exhaustive list, and it mirrors, I’m told, what’s in the Patents Act.

Thank you, Madam Chair. I bring the attention of the committee to clause 28(2), and I note the Supplementary—

CHAIRPERSON (Hon Jacqui Dean): Sorry; point of order. Could the member just tell me which clause she is referring to.

Hon JUDITH COLLINS: Clause 28—sorry, Madam Chair; the issue of clause 25A is what I meant to talk about. The issue around the expiry of a plant variety right (PVR)—the restrictions during and following expiry; there are some issues around that. Not only that but also in relation to a plant variety having been, say, developed but not having been so fully developed as to be able to get its PVR rating, as such, or authorisation. I just wonder whether or not there is any thought being given by the Minister as to whether or not there is going to be any protection given to those people who are inventing new varieties or working on new varieties while they’re waiting for the PVR to be granted. Is there any thought to doing that?

The question is that the Minister’s amendments to Part 3 set out on Supplementary Order Paper 132 be agreed to.