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Report Details


Committee Name:

Environment and Public Affairs Committee (2001 - 2005)

House:

Legislative Council
Report Type:Report

Title:

Gene Technology Bill 2001 and Gene Technology Amendment Bill 2001
Report No:8
No of Pages:375
Physical Location:Legislative Council Committee Office

Presentation Date:

07/11/2003
Related Report(s):Report No 5 - Gene Technology Bill 2001 and the Gene Technology Amendment Bill 2001 Proposal to Travel (5 Dec 2002)
Inquiry Name(s):Gene Technology Bill 2001 and Gene Technology Amendment Bill 2001


Click here to view the report


EXECUTIVE SUMMARY

1.Gene technology is a highly complex, contentious and divisive issue. It is an issue in which the views of proponents of the technology and those against it have become polarized. Gene technology is advancing at a rate that is much greater than the community understanding of its long-term effects. It offers considerable potential benefits to industry, the State and its people, while similarly posing considerable potential risks through unintended consequences.

2.Gene technology raises many scientific and ethical questions but also important questions about balancing the interests of the proponents of the technology with those of the State and the wider community, which may be more reluctant to adopt or accept the technology and its potential consequences – be they benefits or costs.

3.The Western Australian Government has committed Western Australia (WA) to participate in the national regulatory scheme for gene technology.

4.The Gene Technology Bill 2001 and the Gene Technology Amendment Bill 2001 (Bills) represent the WA component of the national scheme for gene technology. The Bills were referred to the Environment and Public Affairs Committee (Committee) by resolution of the Legislative Council on June 26 2002, pursuant to Standing Order 230A for inquiry.

5.The Bills, together with the Gene Technology Act 2000 (Cth) and the legislation of other jurisdictions participating in the national regulatory scheme, provide for the establishment of a regulatory framework to protect public health and safety and the environment from the risks associated with gene technology. The scheme operates by identifying and assessing risks posed by, or as a result of, gene technology and by managing risks through the regulation of certain dealings with genetically modified organisms (GMOs).

6.In participating in the national regulatory scheme, most decisions relating to the use and application of gene technology fall within the jurisdiction of the Commonwealth Gene Technology Regulator (in so far as the dealings pose a risk to human health and safety and the environment). Under the national regulatory scheme the States have been assigned responsibility for managing issues relating to markets associated with the planting of GM crops.

7.The Committee accepts the regulation of gene technology on a national basis. However, during the process of inquiring into the Bills and related matters, the Committee came to the view that, whilst it supports the objectives of the Gene Technology Bill 2001 of protecting the environment and human health and safety through its identification and management of the risks associated with gene technology, there are important matters that are omitted or inadequately addressed by the Australian national regulatory scheme.

8.Clause 21(1)(aa) of the Gene Technology Bill 2001 and section 21(1)(aa) of the Gene Technology Act 2000 (Cth) recognize the State’s ability to assess the marketability of its crops and, upon the basis of needing to preserve the identity of GM or non-GM crops, recognizes the State’s legislative ability to regulate the release of Regulator-approved GM crops in WA.

9.There are no GM crops currently being commercially planted in WA; however, the Regulator currently has before her two applications from technology producers for the commercial release of GM canola. It is widely expected that approval for the commercial release of GM canola is imminent. Thus, the mechanism provided by clause 21(1)(aa) provides the only avenue for the State to retain direct control over decisions in relation to the commercial release of Regulator-approved GM crops in WA agriculture and the WA environment.

10.From its consideration of the marketability of GM crops, the Committee has formed the view that market signals are not yet clear on the desirability of GM crops being commercially planted in this State, at this time. The Committee acknowledges that it is difficult to determine the long-term economic and marketing implications of commercialising GM crops in WA. The Committee received advice from stakeholders that, while there was no price premium paid for non-GM canola in Japan, Australia was able to secure greater market access because it was producing non-GM canola. Moreover, the introduction of mandatory GM labelling in Australia and in other countries around the world indicates that the domestic and international markets are differentiating between GM and non-GM.

11.The Committee considers that an assessment of the marketability of GM crops needs to be initially undertaken on a crop-by-crop basis, with an understanding of the specifics that apply to each particular crop. It is also important, however, that the marketability of GM crops be examined from a holistic perspective, as the commercialisation of a single GM grain crop may tarnish WA’s overall reputation of being a ‘clean and green’ non-GM producer and thus have implications for the marketability of other WA agricultural products.

12.As noted by the Minister for Agriculture, WA’s agricultural exports make a massive contribution to the economy of this State and no Government can afford to let this be put at risk.

13.The Committee’s interpretation of the current market trend is that there is a non-GM advantage, at least, in the short-term and thus it may be appropriate, at this time, for WA to target non-GM markets.

14.The Committee is firmly of the view that if GM canola is commercially released in WA, GM and non-GM areas would need to be established to ensure the continued supply of non-GM canola from WA. The establishment of GM and non-GM areas raises many practical issues that need to be adequately addressed prior to the commercial release of GM crops as they will have an impact upon the marketability of GM and non-GM crops.

15.The Committee notes that there are a number of ways the State can designate areas, examples include declaring the whole State GM-free for all crops or designating the whole State GM for a particular crop. The Committee is of the view that the Minister may wish to consider implementing a gatekeeper approach to the introduction of GM crops in this State to prevent any potential damage to WA’s agricultural markets.

16.As part of its inquiry, the Committee travelled to the United States (US) and Canada to gain first hand knowledge of the North American experience with GMOs and regulatory systems in place in those countries that are the largest and most experienced growers and exporters of GM crops in the world. The US and Canada have been at the forefront of gene technology with commercial plantings of GM crops commencing in 1995 in those countries.

17.Canada and the US, as the ‘early birds’, have been able to capitalize on any potential benefits accruing from being the first countries to commercially produce GM crops. Some markets – albeit minor from their perspective – have been lost in the process, as not all countries or consumers are accepting, at this stage, of GM products, particularly for human consumption. The Committee is clearly of the view that any advantages that may have been available to ‘early bird’ countries no longer exist.

18.The Committee has formed the view, based on the information presented repeatedly during its meetings in Canada and the US, that contamination of non-GM crops by GM crops is inevitable, segregation is not practical and that identity preservation can be achieved, but at significant cost.

19.The Committee is of the view that there are issues relating to identity preservation for marketing purposes that have yet to be addressed by the WA Government and industry, should WA decide that it wishes to retain its non-GM markets. These include a market analysis of a scenario whereby WA remains GM-free into the long-term thereby exploiting WA’s competitive market advantage of being one of the very few areas of the world that is sufficiently isolated geographically to maintain its non-GM status.

20.It is also highly important that identity preservation systems are established to meet the demand for non-GM or identity-preserved crops, should that be what WA markets continue to require. This will require significant industry and government investment to establish and sustain infrastructure to support this.

21.Further, the Committee is of the view that the WA Government has a responsibility to protect the existing rights of non-GM growers and that non-GM growers should not shoulder the financial responsibility for identity preservation, should identity preservation be deemed necessary.

22.The Committee has assessed the information put before it and obtained through the inquiry process. At the current time, the balance of evidence suggests that the potential benefits from the commercialisation of GM crops are not sufficient to weigh against the risks. The Committee is unanimously of the view that WA is not adequately prepared, at this time, to endorse the commercial release of GM crops, once approved by the Commonwealth Regulator.

23.The Committee has recommended that the Government maintain its current moratorium until at least 2006. The postponement of the commercial release of GM crops in WA will provide an opportunity for the Government to ensure that it fully understands the marketing and other implications of the commercial release of GM crops in WA and enable the creation of appropriate infrastructure and management systems to allow for co-existence, should that be deemed necessary and/or desirable.

24.In making its findings and recommendations, the Committee does not wish to deny the State of Western Australia and its citizens the potential benefits that may be obtained through the use of GM crops. The Committee recommends that research and development in the area of gene technology continue.

25.The Committee is ultimately of the view, however, that given the uncertainty surrounding the use of GM in agriculture, and the absence of identity preservation and supply chain management systems, the cautious approach recommended by the Committee best reflects the views of the WA community and will ultimately result in the best long-term outcome for the State of Western Australia and its citizens.

26.This Committee has worked diligently at the important task it was given. The Committee makes important recommendations that, if acted upon, will assist in developing the best course of action for this State and its people, at this time and in the future, in relation to gene technology, particularly in so far as it relates to the endorsement of commercial plantings of GM crops.

27.The Committee would like to acknowledge the commitment, hard work and contribution of the Committee staff in the conduct of this inquiry and the preparation of this report.

RECOMMENDATIONS

28.In this report the Committee has made recommendations to amend the Gene Technology Bill 2001. In so doing the Committee is mindful of the fact that the Gene Technology Intergovernmental Agreement (GTA) (although it is not intended to create any legal or justiciable obligation whatsoever on the participating jurisdictions) commits all governments to introduce substantially similar legislation in their own jurisdiction; to ensure that the scheme applies consistently to all persons, things and activities within Australia; and to use its best endeavours to secure the passage of the Bill or Bills submitted to its Parliament, as introduced (refer to paragraph 3.35). Further the GTA strictly regulates amendments to legislation forming part of the scheme (refer to paragraphs 3.38 to 3.43).

29.Accordingly, because of the restrictions imposed by the national regulatory scheme, any amendments to the Gene Technology Bill 2001 that the Committee recommends to the Legislative Council in this report may require the Government to make representation to the Gene Technology Ministerial Council pursuant to the GTA to facilitate changes to the state legislation and the rest of the national scheme. In this regard, all amendments to the Gene Technology Bill 2001 that the Committee recommends apply equally to the Commonwealth Gene Technology Act 2000 and the corresponding State laws of other participating jurisdictions.

30.The Committee is also aware that the final form of the Bills may have an impact on whether or not the State legislation is accepted as part of the national regulatory scheme. Depending on the amendments, changes to the Gene Technology Bill 2001 that are not also effected to Commonwealth and other State legislative components of the national regulatory scheme may result in different procedures, standards or requirements operating in respect of those dealings covered by State legislation compared to those dealings covered by, for example, the Gene Technology Act 2000 (Cth). These matters are discussed at paragraphs 4.43 to 4.45 and 5.31 to 5.34.

31.Recommendations are grouped as they appear in the text at the page number indicated:

Page 66

Recommendation 1: The Committee recommends that the penalty provisions in the Gene Technology Bill 2001:

a) be reassessed when the Minister causes an independent review of the Act, as provided in clause 194 of the Gene Technology Bill 2001;
b) be reassessed when the Gene Technology Ministerial Council causes an independent review of the Commonwealth Act, as provided in section 194 of the Gene Technology Act 2000 (Cth); and
c) be monitored on an on-going basis,

so as to ensure that they are adequate and effective in ensuring compliance.

Page 67

Recommendation 2: The Committee recommends that clause 58 of the Gene Technology Bill 2001 be amended in the following manner -

Page 39, after line 13 - To insert -

“ (4) Nothing in this section affects the operation of the Spent Convictions Act 1998. ”.

Page 69

Recommendation 3: The Committee recommends that the Government make representations to the Gene Technology Ministerial Council that the Gene Technology Bill 2001 be amended to provide that monitoring of each licence holder be undertaken at least once every three years.

Page 70

Recommendation 4: The Committee recommends that the Minister for Agriculture, Forestry and Fisheries make representations to the Gene Technology Ministerial Council that the Gene Technology Bill 2001 be amended to provide for review of licences issued by the Regulator that involve an intentional release of a genetically modified organism into the environment, every three years.

Page 78

Recommendation 5: The Committee recommends that the Minister for Agriculture, Forestry and Fisheries make representations to the Gene Technology Ministerial Council to provide that the Record of GMO and GM product dealings established under clause 138 of the Gene Technology Bill 2001 be amended to also include:

a) any detail which the Regulator has in respect of a licensee’s compliance with the licence, including breaches of licence conditions;
b) details of all decisions made by the Regulator under the following clauses of the Gene Technology Bill 2001:
i) clause 68 The Regulator may decide to suspend or cancel a licence
ii) clause 70 The Regulator may decide to permit a licence holder to transfer a licence
iii) clause 71 The Regulator may vary a licence
iv) clause 78 The Regulator may determine to include a dealing with a GMO on the GMO Register
v) clause 80 The Regulator may determine to vary the GMO Register
vi) clause 84 The Regulator may certify or refuse to certify a facility to a particular containment level
vii) clause 86 The Regulator may or may not impose conditions on the certification under clause 84
viii) clause 87 The Regulator may vary the certification of a facility
ix) clause 88 The Regulator may suspend or cancel a certification of a facility
x) clause 92 The Regulator may decide to accredit or not accredit an organisation
xi) clause 94 The Regulator may decide to impose conditions on an accredited organisation
xii) clause 95 The Regulator may decide to vary the accreditation of an organisation
xiii) clause 96 The Regulator may decide to suspend or cancel the accreditation of an organisation
xiv) clause 143 Under clause 140 and 141 the Regulator may review a notifiable low risk dealing or an exempt dealing and may, as a result under clause 143 make various recommendations to the Ministerial Council
xv) clause 185 The Regulator may declare or refuse to declare certain information to be confidential commercial information
xvi) clause 186 The Regulator may revoke a declaration that certain information is confidential commercial information; and
c) the reasons for these decisions.

Page 79

Recommendation 6: The Committee recommends that the Government consider establishing a state-based consultative committee, equivalent to the Gene Technology Community Consultative Committee:


a) to compliment the technical advisory role that the Western Australian Gene Technology Interdepartmental Committee provides to the Regulator; and


b) to provide for Western Australian community input into the decisions of the Regulator.

Page 85

Recommendation 7: The Committee recommends that the Government clarify the reasons for the difference in wording of clauses 154 and 164 of the Gene Technology Bill 2001 and their intended scope during the Legislative Council’s consideration of those clauses.

Page 91

Recommendation 8: The Committee recommends that clauses 192B, 192C and 192D be deleted from the Gene Technology Bill 2001.

Page 95

Recommendation 9: The Committee recommends that the Gene Technology Bill 2001 be passed.


In making this recommendation the Committee draws the attention of the House to the amendments to the Gene Technology Bill 2001 that appear in Recommendations 2, 3, 4, 5 and 8 and the comments made by the Committee in Recommendation 7. The Committee urges the House and the Government to seriously consider those recommendations but does not intend that the passage of the Gene Technology Bill 2001 through the Legislative Council be subject to the amendments referred to in those recommendations being effected.

Page 99

Recommendation 10: The Committee recommends that the Gene Technology Amendment Bill 2001 be passed without amendment.

Page 107

Recommendation 11: The Committee recommends that the omissions and inadequacies of the national regulatory scheme outlined at paragraphs 7.14(i to xiii):


a) be considered by the Gene Technology Ministerial Council;


b) be considered when the Gene Technology Bill 2001 is to be reviewed as provided by clause 194 of the Gene Technology Bill 2001; and


c) be addressed, where appropriate, in State law dedicated to dealing with post-commercial release of a genetically modified organism.

Page 147

Recommendation 12: The Committee recommends that the Government consider the noted concerns at paragraphs 8.163 to 8.165 before the completion of the passage of the Genetically Modified Crops Free Areas Bill 2003 through the Legislative Council.

Page 214

Recommendation 13: The Committee recommends that the relationship between the provisions in the Environmental Protection Act 1986 and the Environmental Protection Amendment Bill 2002, with the Gene Technology Bill 2001 and the Gene Technology Act 2000 (Cth) raised at paragraphs 10.50 to 10.57, should be clarified by the Minister for Agriculture, Forestry and Fisheries during debate in the Legislative Council on the Gene Technology Bill 2001.

Page 220

Recommendation 14: The Committee recommends that the Government address the following:


a) the marketability of GM crops in comparison with non-GM crops;


b) consumer concerns about the long-term impact of GMOs on health and the environment;


c) what level of tolerance of GM contamination (adventitious presence) in WA food crops is acceptable;


d) how to effectively segregate crops in order to preserve the identity of GM and non-GM crops;


e) the allocation of additional costs caused by identity preservation and supply chain management systems; and


f) liability and insurance issues raised by dealings with GMOs.

Page 221

Recommendation 15: The Committee recommends that the Government protect the existing rights and interests of non-GM growers and that non-GM growers should not unfairly shoulder the financial responsibility for identity preservation and supply chain management systems, if approval is given to the growing of commercial GM crops.

Page 221

Recommendation 16: The Committee recommends that Western Australia maintain its moratorium before allowing the commercial release of GM crops. This moratorium should remain in place until at least 2006.

Page 221

Recommendation 17: The Committee recommends that during the moratorium, the Government and industry undertake the following actions:

a) establish a State body to consult with WA stakeholders on marketing issues;
b) conduct a market analysis of a scenario whereby WA remains GM-free into the long-term thereby exploiting WA’s competitive market advantage of being one of the very few areas of the world that is sufficiently isolated geographically to maintain its non-GM status. This comprehensive cost-benefit appraisal should establish whether WA’s geographic isolation enables greater benefits to be gained from remaining GM-free or otherwise, and how this benefit may be enhanced through marketing, research into other areas of biotechnology acceptable to the market and new export products such as GM-free seed for agriculture;
c) monitor, on an on-going basis, national and international experience of the co-existence of GM and non-GM crops to establish whether:
i) segregation and GM-free areas are workable and economically feasible;
ii) the GM crop buffer distances being applied are effective for WA markets;
d) establish a comprehensive segregated storage and transport system prior to commercial planting of GM crops; and
e) clearly establish and communicate the costs of a comprehensive segregated storage and transport system, and who is to pay for it, prior to commercial planting of GM crops.

Page 221

Recommendation 18: The Committee recommends that Regulator-approved research and development of the use of gene technology in crops, including non-commercial field trials, continue in certified and accredited facilities and in secure field trial locations in Western Australia.

Page 222

Recommendation 19: The Committee recommends that the Minister for Agriculture, Forestry and Fisheries consider adopting a gatekeeper approach, which begins by providing protection for Western Australia by designating the whole State GM-free.

Page 222

Recommendation 20: The Committee recommends, should the Government decide to permit the commercial release of GM crops, that release should be regulated by dedicated State legislation, allowing for release into specific locations by means of ‘ area permits’ for particular crops. The ‘area permits’ should be conditional on provision for apportionment of liability, insurance, fair cost allocations, effective segregation protocols and other conditions considered necessary to handle matters not covered by the national regulatory scheme.