Andrew Wilkinson
Review of the Plant Breeder’s Rights
Advisory Committee Contact Officer
IP Australia
PO Box 200
Woden ACT 2606
T 03 9607 9311
F 03 9602 5270
[email protected]
Date 31 October 2014
By Email: [email protected]
Submission to IP Australia regarding the Consultation on the Review of the Plant Breeder's
Rights Advisory Committee by the Law Institute of Victoria
In September 2014, IP Australia invited submissions in regard to a review of the function and make-up
of the Plant Breeder's Rights Advisory Committee ('Committee') which at this time is a statutory body
as set out under sections 63-67 of the Plant Breeder's Rights Act 1994 (Cth) ('PBR Act'), as well as
possible changes to certain advisory functions of the committee enshrined in other parts of the PBR
Act.
These Submissions are lodged on behalf of the Law Institute of Victoria ('the LIV').
IP Australia specifically asked for submissions in regard to the following questions:
1. Which is your preferred option for providing advice on plant breeder's rights? Please
provide reasons for your preference, including why other options are not preferred.
We prefer option 1, but we reject other options (as discussed below). Our preference for option 1 is
because it seems to combine the flexibility and supposed cost-efficiency (even though no data is
provided in this regard) of a non-statutory advisory body with the potential to engage relevant
stakeholders from both within and outside of government. This approach would also be able to build
on experience with established consultative groups in other areas of intellectual property law such as
patents, trade marks and designs. However, our preference is not unconditional and is subject to
the conditions noted below.
First, you must recognize that this is a Committee necessitating a very high level of expertise. We note
that the 'Background' section of the Consultation Paper-Review of the Plant Breeder's Rights Advisory
Committee ('Consultation Paper') sets out that the suggested changes are based on recommendations
by the National Commission of Audit made in March 2014 (Toward Responsible Government-Phase
1
2). That report identified 482 non-principal bodies that exist at the Commonwealth level of
2
government for rationalisation.
1
National Commission of Audit, Toward Responsible Government - The Report of the National
Commission of Audit - Phase 2, March 2014.
2
Ibid table 2, page xii.
Without any details given about either the costs or benefits of this specific committee, the report
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recommends that the Committee be 'consolidated in Department'. Recommendations in the report are
generally based on concerns about 'the large number of Commonwealth government bodies and the
potential for this to contribute to duplication and overlap, unnecessary complexity, inefficiencies, and a
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lack of accountability within government'.
The clear mandate of the Committee within section 63(2) of the PBR Act is giving advice on ministerial
request on specific issues arising under the Act (and necessitating a high level of expertise, as is clear
from the characteristics of members set out under section 64(1)). This refined remit, coupled with the
high level of necessary expertise required from the members makes it unlikely that such concerns,
particularly in regard to duplication, would apply to the Committee. The high level of skill required of its
members also makes it unlikely that such expertise would be found in-house in the Department and it
would be prohibitively expensive to recruit such expertise.
Secondly, the options in the Consultation Paper are not simply neutral ways of making government
more efficient. As made clear in the Consultation Paper, costs are partly shifted to, and are to be
5
borne by, 'the wider business community and stakeholders' for their participation. Indigenous
Australians and conservation interests are currently included in the Committee under section 64(1) of
the PBR Act.
The current arrangements allow for contributions and participation from groups that do not necessarily
profit from their participation, including conservation groups and indigenous landholders, possibly
enabled through the remuneration for participation. There might be other groups for whom
participation is only possible with some compensation, such as for example small business owners.
Any new arrangements for providing advice on plant breeder's rights need to ensure that relevant
stakeholders are not excluded because they cannot afford participation. The current options do not
adequately address this.
Thirdly, none of the options clarified the specific details of the engagement of any newly formed
advisory group, that is, how it would actually provide its advice. Since the stated intention is to remove
references to the Committee in the PBR Act, rather than to replace them with references to the newly
formed advisory group, the envisioned mode of engagement needs to be clarified. The LIV would like
the opportunity to comment further on this.
Fourthly, while, we prefer option 1, this choice is subject to the following conditions:
1. No details are given in regard to the actual make-up of this proposed group, nor who would
determine its membership. 'Stakeholders in academia, industry and government' are
suggested as candidates. There should be an opportunity for stakeholders to comment on the
3
Ibid 136.
Ibid 86.
5
IP Australia, Consultation Paper-Review of the Plant Breeder's Rights Advisory Committee
(September 2014), 4.
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composition of this group if this option is chosen.
2. The membership of the group should be formalised to some degree and not controlled by IP
Australia alone, to ensure that there is indeed consistent representation from a variety of
stakeholders including from academia, industry and government, as well as additional
stakeholders as referred to above, while allowing for relevant specific technical expertise to be
obtained as necessary. There is also a need for representation of brand owners to ensure
trade mark rights are properly understood and represented.
3. This is based on the assumption that the functions of such a new group would be the same as
those of the Committee under section 63(2) of the PBR Act.
Fifthly, we reject the second and the third option for the following reasons:
1. Option 2 is too inflexible to engage stakeholders outside of government in a relevant manner.
It is hard to see how interposing a layer of government representatives from various
departments between stakeholders from outside the government and the decision-maker will
aid in the stakeholders providing meaningful input, and how adding such an additional layer of
participation will make the process of obtaining relevant advice more efficient. A quote from
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the Towards Responsible Government report relevantly addresses this:
“The existence of an advisory body adds an additional layer of participation and
administrative overhead, which needs to be balanced against the efficiency and
effectiveness of obtaining this advice and guidance. The Uhrig Review of Corporate
Governance of Statutory Authorities and Office Holders found the accountability of
governing boards can be diminished when additional layers of participation are introduced
without decision-making responsibility.”
2. Option 3 similarly introduces an additional layer of participation, and in addition, it can be
questioned if this approach would in fact be as flexible and timely as suggested, given that the
expert panel would have to be selected and convened for each case as it arises, and would
then have to proceed to identify and consult stakeholders. An established group with regular
meetings under Option 1 if appropriately selected seems more likely to be able to provide indepth advice on short notice if necessary.
2. Are there any other options for providing advice on plant breeder's rights that are not
considered in this paper that may achieve the same result?
The LIV does not have any suggestions for other options to provide advice on plant breeder's rights.
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Above n 1, 88.
3. Are there any issues associated with removing section 42 from the Plant Breeder's Rights
Act 1994?
Removal of section 42 from the PBR Act would be acceptable provided other safeguards of potential
public interests remain, including section 49. It is preferable to have a mechanism which allows for
conditions to be imposed for plant breeder’s rights rather than a blanket “ban” of a particular plant
breed from commercial use.
It can be questioned whether the power under section 42 can be exercised in any case. Article 3 of the
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International Convention for the Protection of New Varieties of Plants requires for the provisions of
the Convention to be applied to all plant genera and species. A decision by Australia, as a Contracting
State, to deny protection to a particular taxon which would be otherwise eligible for protection under
the provisions of the Convention may contravene Australia's obligations under the Convention. If this
view is correct, section 42 should be removed.
4. Are there any issues associated with removing section 49 from the Plant Breeder's Rights
Act 1994, or with providing the Secretary or Registrar the power to impose such conditions,
rather than the Minister?
Section 49 should be retained, particularly if section 42 is removed. Under this section, the Minister
could consult with the proposed newly formed Group (which would include stakeholders from more
appropriate representatives of the community) on the type of conditions to impose on plant breeders'
rights. For the important field of endeavour of plant breeding, which can have wide impacts on society,
it is appropriate to maintain the option for high-level consultations, and to retain the option of review
through the Administrative Appeals Tribunal.
Sincerely yours,
Katie Miller
Acting President
Law Institute of Victoria
7
International Convention for the Protection of New Varieties of Plants (1991) <
http://www.upov.int/en/publications/conventions/1991/act1991.htm>.