Vol 7 No 1 - Roger Williams University School of Law

Act, 1987 (“the Varieties Act”) and its successor, the PlantBreeder’s Rights Act, 1994 (“the Breeder’s Rights Act”)—were dulyenacted pursuant to section 51 (xviii) of the Constitution, asexplained above, provides that the Commonwealth Parliamentmay make laws for the peace, order and good government of theCommonwealth with respect to: “Copyrights, patents of inventionsand designs, and trade marks.”68The Varieties Act provided for the grant of plant varietyrights in new plant varieties for a period of twenty years.69 Therepeal of the Varieties Act by section 78 of the Breeder’s RightsAct also brought into operation transition provisions, particularlysection 82, which stated that plant variety rights under theprevious statute were to be treated as plant breeder’s rights underthe new statute. Pursuant to this statutory regime, the seconddefendant, Cultivaust Pty. Ltd., argued that:it was the licensee from the State of Tasmania of theFranklin barley rights;this gave it the exclusive right to sell and export Franklinbarley andthe plaintiff, in selling and exporting Franklin barleyfrom Australia, had acted in breach of the seconddefendant’s rights.70The plaintiff, Grain Pool of WA, defended against the claims byasserting that the rights asserted by the second defendant wereineffective because the grant of those rights was beyond theCommonwealth’s legislative powers in section 51 (xviii), (xxix) and(xxxix).71 The full bench of the High Court held that both Actswere within the powers contained in section 51 (xviii) of theConstitution and therefore it was unnecessary to consider whetherthe Acts could be supported under section 51 (xxix) or (xxxix).72The plaintiff had argued that the operation of section 51(xviii)68. Id. at para. 13.69. Plant Variety Rights Act, 1987, § 32 (Austl.) (commencing on the day ofacceptance of successful application).70. Pursuant to section 26 of the Plant Variety Rights Act, a grant was made onJanuary 19, 1990, in favour of the Tasmanian Department of Primary Industry andFisheries with respect to Franklin barley.71. Grain Pool, [2000] H.C.A. 14 at para. 12.72. Id. at para. 136.