New Plant Varieties

– Plant Breeder's Rights Act 1994, as amended, including by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012, effective from April 15, 2013, and the Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Act 2018, effective from February 24, 2019.

Membership in International Conventions

– International Convention for the Protection of New Varieties of Plants (UPOV), as of March 1, 1989, Act of 1991 since January 20, 2000.


Applicant: the breeder or their successor in title, or agent of breeder or successor. 

Foreigners: same rights as local applicants; must have an address for service of documents in Australia. 

Kinds of plants: do not include fungi, algae or bacteria. Rights are only available for varieties whose species or genus is allowed by Regulations pursuant to the Act.

Criteria for grant of rights: new plant variety must be: (1) originated by a person; (2) homogeneous having regard to the particular features of its sexual reproduction or vegetative propagation; (3) stable; (4) distinguishable by one or more important morphological, physiological or other characteristics from all other plant varieties whose existence was a matter of public knowledge at the time when the application in respect of the variety was made; (5) must not have been sold in Australia, nor sold in another country earlier than six years, before the making of the application.

Filing requirements for an application: must be in the appropriate prescribed form, which includes inter alia:
1. A description of a plant of the variety sufficient to identify plants of that variety;
2. Particulars of distinguishing characteristics;
3. Particulars of the manner in which the variety was originated;
4. The name of the variety (must comply with the International Code of Nomenclature for Cultivated Plants);
5. A comparison with the closest known variety for the characteristics being considered;
6. Particulars of tests carried out to establish that the variety is distinct, uniform and stable. The onus is on the applicant to conduct comparative growing trials for this purpose. Application must be accompanied with the prescribed fee.

Varieties originated overseas: the Act requires Australian test results or equivalent, normally satisfied by test growings in Australia. Alternatives are to:
(a) demonstrate the presence of the characteristic outside Australia in a test growing that is equivalent to a test growing carried out in Australia, and to demonstrate the equivalence; or
(b) if a test growing would take more than two years, demonstrate the presence of characteristic outside Australia in a test growing that would probably demonstrate the characteristic in Australia.

Acceptance of application: if the application adequately complies with the application requirements above, the applicant is notified of the acceptance. 

Provisional protection: begins on the date of acceptance of the application and remains until the application is disposed of or a period prescribed has expired. 

Publication: after acceptance with the description, the application is published in the Plant Varieties Journal.


Examination: after acceptance, the application is examined to ensure that: (a) there is such a plant variety and that the variety is new, distinct, uniform and stable; (b) the applicant is entitled to make the application and grant to that applicant is not prohibited by the Act. The application shall not be refused if the applicant has not been given a reasonable opportunity to make a written submission in relation to the application. An examination fee is payable.

Objection: within six months after acceptance and publication in the Plant Varieties Journal, parties may object if they consider that their commercial interests would be affected and that the examination criteria cannot be satisfied.


Granting: if a period of six months has lapsed since publication in the Journal and the examination requirements are satisfied and all fees have been paid, plant variety rights are granted. 

Duration: twenty years from the date when the application was accepted.

Renewal fees: payable within one month of each anniversary of the grant of rights to the grantee.

Infringement: sale, offer for sale or producing plants for sale of protected variety or reproductive material of that variety. Propagation for one’s own use or consumption or sale of plants not intended for propagation is not an infringement.

Supply of reproductive material: grantees may be required to supply a quantity of reproductive material to a specified genetic resource center or herbarium within fourteen days of notification. Accordingly, grantees must maintain a supply of reproductive material during currency of the rights and should keep records to evidence that the supplied material is the same variety as that for which rights have been granted. 

Compulsory license: if the variety is not available to the public in reasonable quantities and at a reasonable price a compulsory license may be granted.

Assignment – license: must be in writing. New owner must inform the Registrar within seven days of assignment or transmission.

Revocation: rights can be revoked if there is evidence that the plant was not a new variety or was ineligible at the time of grant, if fees have not been paid within one month after receiving notice that they are due, if the grantee has not complied with any condition of grant, or has failed to supply genetic material or has not notified any change of ownership.

Appeals: applications for review of decisions of the Minister, Secretary and Registrar may be made to the Administrative Appeals Tribunal.


Plant Varieties Journal (quarterly).

Plant Varieties Office

Plant Breeder’s Rights are administered by IP Australia.