A GOVERNMENT review of the Plant Breeders Rights (PBR) Act could lead to farmers being subject to random property searches and harsher penalties for using unauthorised seed, if the seed industry gets its way.
The area of plant breeding rights is regarded as a minefield by many players in the grains industry.
Farming group representatives say grain growers already pay levies which are used to develop seed, while many farmers are confused about intellectual property law.
Most of the breaches occur when farmers buy seed direct from neighbours and other growers who have produced the grain during a previous harvest, instead of purchasing it from the product’s rightful producer or seller.
The farmer direct selling method eliminates the rights of seed companies which spend large sums of money on developing seed for disease-resistant, high-yielding and drought-tolerant plant varieties.
Australian Seed Federation (ASF) chief executive officer Chris Melham said the rights of his members needed protection.
Mr Melham said seed companies were frustrated at being duped out of their investment returns and had submitted those thoughts and feelings into the PBR review.
Despite offenders risking large fines, Mr Melham said illegal trading was occurring across the country, but there had not been one single case brought before the courts since the PBR Act was introduced.
“It is happening not only in Australia but globally,” Mr Melham said.
“Twenty one years into PBR in Australia we have not had one case that has gone to a higher court for resolution, because it is almost impossible for PBR owners to enforce their rights.
“Not only because of deficiencies with the PBR Act, but also in a practical sense it is very difficult to collect evidence, because the people with that knowledge usually reside in local towns and rural communities, and they are reluctant to come forward for fear of retribution.
“It is also extremely expensive to pursue a case through the common law court under the current system, and legal advisors to PBR owners also have to provide a high degree of proof outlining the breach.”
Mr Melham said the burden of proof was almost 100pc on the PBR owner.
He said the ASF had never been able to collect enough evidence, as required by the Act, to get a case to court.
Mr Melham said the ASF had put in a comprehensive submission to the PBR review and pointed out a number of areas of reform that could be implemented, both with the Act, and also in a practical sense.
“One of our recommendations was to reverse the burden of proof whereby if PBR owners have enough prima facie evidence of a breach occurring then the onus should be put upon the offender to prove that the breach did not occur,” he said.
“We also believe that through the Federal Magistrates court, a more expedient and less costly system could be introduced to hear breaches or alleged breaches of IP protection.
“We are also seeking the ability for PBR owners to get court orders to search premises when they have prima facie evidence of an alleged breach.
“Anyone out there who is suspected or alleged to have breached the law — and it could be farmers, it could be seed merchants, anyone invol-ved in the illegal commercial activity of PBR varieties — could be searched.”