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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2008-11-13 Daily Xml
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GENE TECHNOLOGY (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 29 October 2008. Page 503.)

The Hon. M. PARNELL (11:03): The Greens do not support this bill. As members would know, the Greens have serious concerns about genetic engineering and its potential effects and implications for both human health and for our environment. Consistent with this, we do not support the introduction of the specific emergency dealings provision that this bill provides. This bill seeks to put emergency provisions in place within the Gene Technology Act 2001 that deal with non-GM emergencies. This goes beyond the scope of the object of the act, which I remind members is:

…to protect the health and safety of people, and to protect the environment, by identifying risks posed by or as a result of gene technology, and by managing those risks through regulating certain dealings with GMOs.

These new provisions of the bill, rather than identify and manage risks posed by gene technology (which is the legislative intent), enable the fast-tracking of potentially untested genetically engineered (or modified) organisms for release into the environment, in an attempt to deal with emergencies that are unrelated to genetically modified organisms. The Greens are concerned that this may mean that potentially harmful organisms may be released into our environment without the usual regulatory process, proper assessment or any safeguards, and without any understanding about how the genetically modified organism might affect or interact with other organisms in that environment, and the result may have disastrous consequences. Members need no reminding of the story of the introduction of the cane toad in Australia, its impact on our environment and its impact on our economy.

In state legislation we have adopted the concept of the precautionary principle that, in its crudest form, says: if you do not know what the outcomes of a measure will be, then you exercise caution and you do not do it. We believe that the emergency provisions should be restricted only to medical emergencies, and the release of genetically modified organisms—especially those that have not been properly assessed—should be the last resort and not the first resort; however, even in relation to medical emergencies there are still concerns.

The government has advised, for example, that these provisions are required to enable a timely response to disease outbreaks, such as the bird flu. In such circumstances, it will be necessary to vaccinate a much larger number of people who have the potential to contract the disease than those who might actually be exposed and contract the disease, in order for the epidemiological containment to be effective. Essentially, this means that the government would need to immunise a larger part of the population. If, via these emergency provisions, a human vaccine that contained an untested genetically engineered organism were to be used to deal with such an outbreak, this would see a larger population than was at risk from the original disease exposed to a genetically engineered organism that may well have severe adverse affects on those exposed to it. It is possible that the effects of the vaccine could be worse than the disease itself.

In the federal arena, there was a senate inquiry into the federal version of this bill. An example was provided by Jeremy Tager into the possible effects of rushing through a vaccine. Mr Tager's evidence to the committee was as follows:

I remember that my father was working for the National Institute of Health in the 1950s when they rushed through a polio vaccine with the notion that this was an emergency that needed dealing with. They ended up killing more people than they saved with that particular vaccine.

Even though in this bill we are talking about gene technology, which was not an issue in the 1950s, the principle, I say, is exactly the same. Greenpeace Australia Pacific kindly sent me a copy of its submission, dated 13 April 2007, on the federal counterpart to this bill, namely, the Gene Technology Amendment Bill 2007. In its submission, Greenpeace Australia Pacific stated:

Greenpeace believes that all GMOs should undertake a full safety assessment and that this should never be compromised regardless of the severity of any given threat that they may address. The problems that we are currently experiencing with organisms used to control a perceived threat, e.g., cane toads, demonstrate the importance of the precautionary principle. A full safety assessment is clearly needed before any new organisms, whether GMO or not, are released into the environment. The Minister, in making an emergency dealing determination would need to obtain advice from: (i) the Commonwealth Chief Medical Officer; or (ii) the Commonwealth Chief Veterinary Officer; or (iii) the Commonwealth Chief Plant Protection Officer; or (iv) a person prescribed by the regulations, as well as advice from the Regulator...However, given the unpredictable nature of GMOs, it is implausible that any of these parties could offer reliable advice in the absence of a full safety assessment.

I also received a copy of the submission from Mr Bob Phelps of the GeneEthics Network to the Senate Community Affairs Committee in relation to that same federal bill. The submission supports the view expressed by Greenpeace that I have just read out. Mr Phelps's submission states:

Any GMO proposed for release must go through the same notification, assessment and licensing processes as any other GMO. If bird flu or other viruses are really the threat we are told, then preparing to prevent or ameliorate the threat in a measured and timely way makes sense. Being stampeded into giving certain parties too much power is dangerous and against the public interest.

He concludes by saying:

All genetically manipulated organisms must be required to undergo a full risk assessment. This process must not be compromised. Full scientific risk assessments are necessary to the orderly and trouble-free introduction of any and all novel organisms into the Australian environment, not only GMOs.

I would like to thank the ministerial and departmental staff for the briefing they provided me on this bill. In that briefing, I asked a number of questions, and I was pleased to receive a written response to these. Some of this advice goes a little way towards assuring me on some of the concerns I had. One question I had related to the definition of the term 'threat' and whether or not an economic threat could be a trigger for the minister to make an emergency dealing determination under these provisions. The government's response states:

When this amendment was debated in the commonwealth parliament it was also made clear that economic consequences of themselves would not be sufficient to trigger the use of emergency determination powers.

Another question I posed related to whether this legislation could be used to override our state moratorium on GM crops. The government's advice was as follows:

It is not the intention that an emergency dealing determination would override state moratoria. The gene technology regulatory scheme recognises that states and territories may put in place moratoria over the growing of GM crops.

I guess that is stating the obvious. Whilst it might not be the intention that these emergency powers be used, they have not been absolutely ruled out. Whilst the Greens do appreciate that there is a need for legislative provisions for dealing with emergency situations such as pandemics, we do not believe that these amendments are the appropriate way to do that and, as a result, we do not support the bill.

The Hon. G.E. GAGO (Minister for State/Local Government Relations, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister Assisting the Minister for Transport, Infrastructure and Energy) (11:13): In summing up, I thank all those honourable members who have contributed to this debate. This amendment allows the South Australian minister to issue an emergency dealing determination only if the commonwealth minister has proposed or is proposing to make an emergency dealing determination.

The Commonwealth Gene Technology Act allows the commonwealth minister to expedite the approval process, not bypass the regulatory process. A risk assessment is still undertaken by the Gene Technology Regulator as the act requires that, before the commonwealth minister makes the determination, he or she must have received advice from the regulator that any risks posed by the proposed dealing with the GMO can be managed so as to protect the health and safety of people and the environment.

Stringent safeguards are provided in the legislation around the use of emergency powers. There are also ministerial guidelines that provide more detail on the circumstances of use of these powers. While 'threat' is not defined, it must be an actual or imminent threat to the health and safety of people or the environment. The minister must receive advice of such a threat from the chief medical officer, the chief veterinary officer, the chief plant protection officer, or other person prescribed in the regulations.

Economic consequences of themselves would not be sufficient to trigger the use of these emergency powers, and it is not the intention that an emergency dealing determination would override state moratoria. The gene technology regulatory scheme recognises that states and territories may put in place a moratorium on the growing of GM crops to protect markets. States and territories agree to the mechanisms established by the legislation for issuing an emergency dealing determination, including consultation.

I hope these comments address at least some of the concerns raised during the second reading speeches. I am happy to address any other issues during the committee stage as we move along. Again, I thank all honourable members for their contributions and I look forward to the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 10 passed.

Clause 11.

The Hon. SANDRA KANCK: Clause 11 inserts new section 40A, 'Licences relating to inadvertent dealings'. There is, in clause 5, a definition of an inadvertent dealings application, but I would like an explanation, please, of what an inadvertent dealing actually is.

The Hon. G.E. GAGO: I am advised that an inadvertent dealing is where a person might come into possession of a GMO without knowing that the item is a GMO. For example, a person working in a laboratory where something like a reagent was ordered may not be aware that the item is a GMO when, in fact, it is.

The Hon. SANDRA KANCK: Who is going to determine whether something is an inadvertent dealing?

The Hon. G.E. GAGO: Regarding who would determine whether it is inadvertent or not, I am informed that, in terms of a research facility, it would be the institute's biosafety committee which, in turn, could get in touch with the Gene Technology Regulator, if need be.

The Hon. SANDRA KANCK: I am concerned that, with this notion of inadvertent dealings, it could create a backdoor way of getting a licence. For example, if we find that someone has inadvertently dealt in GM crops or products, does that mean that they can then legitimately continue to do so?

The Hon. G.E. GAGO: No; that is most unlikely to happen. A time limit is imposed, and the maximum time allowed is 12 months. That is with the intention of allowing the party to dispose of the material safely.

The Hon. SANDRA KANCK: So, there is no way that somebody could inadvertently deal and then say, 'I want a licence on that basis'? Is that a reassurance that you can give?

The Hon. G.E. GAGO: They would then be subject to the normal application process and risk assessment process.

The Hon. SANDRA KANCK: So, if I read that correctly, it seems to me that it provides a mechanism for someone to apply and say, 'I've been inadvertently dealing with GM. Therefore, I should be given a licence.'

The Hon. G.E. GAGO: I have been advised that the intention of this provision is that they would have to dispose of the material. Then, if they wanted to have their application reconsidered, they would have to go through the normal process that everyone else has to, and there is a risk analysis process that is associated with that.

The Hon. SANDRA KANCK: If I am interpreting the minister's answer correctly, the minister is saying that, having disposed of the material, they are really back at square one and they will be treated like any other applicant.

The Hon. G.E. GAGO: That is my understanding.

Clause passed.

Clauses 12 to 16 passed.

Clause 17.

The Hon. SANDRA KANCK: In relation to a licence to conduct experiments, can the regulator grant such a licence independent of anything that the state government might wish?

The Hon. G.E. GAGO: Could I just clarify the information that the honourable member is seeking? Is it around the moratorium?

The Hon. SANDRA KANCK: This relates to the limited and controlled release applications.

The Hon. G.E. GAGO: I have been advised that there is always an opportunity for the state to have input, and that involves a public consultation process.

Clause passed.

Clauses 18 to 23 passed.

Clause 24.

The Hon. SANDRA KANCK: This clause deals with the variation of a licence, and the answer that I was given to the previous question may encompass it. Nevertheless, I am interested in the issue of consultation. When a licence is varied, will there be consultation?

The Hon. G.E. GAGO: I am advised that the standard process continues to apply, and that this amendment does not affect that.

Clause passed.

Clauses 25 and 26 passed.

Clause 27.

The Hon. S.G. WADE: I was stimulated by the contributions of the Hon. Mark Parnell in relation to the precautionary principle, which I understand is enshrined in principle 15 of the Rio Declaration, which states:

Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

That principle is embodied in the intergovernmental agreement on the environment, to which this state is a party and, under that agreement, this state has a responsibility to reflect the precautionary principle in its dealings. In implementing this measure, I understand that officers would be required to take into account the precautionary principle.

Obviously this principle does not apply only to the environment: it can also apply to other aspects. In fact, section 72B of the federal act, which is reflected in clause 27, has hints of that principle by saying, 'You've got to consider the threats.' What is interesting is that it brings together the threats to health and safety and the threats to the environment.

The Hon. Mr Parnell suggested that, in the commonwealth debate on similar legislation, the commonwealth parliament was assured that environmental factors would not be overridden by other factors—and the Hon. Mark Parnell was referring to economic threat—but the section itself makes clear that environmental factors can be overwhelmed by health and safety factors. That is my first point. The Hon. Mark Parnell I think quoted Greenpeace, which said that it thought environmental factors should be quarantined. Does the minister understand that section 72B of the commonwealth act does not quarantine environmental factors from health and safety factors?

I understand that the Hon. Mark Parnell is proceeding on the assurance given in the commonwealth parliament that economic threats would not be relevant in the application of section 72B. The Hon. Mark Parnell, I understand (I do not want to misquote him), is of the view that the application of the precautionary principle in relation to environmental factors should not be compromised by the infusion of other factors. I suggest that section 72B is structured such that the section requires the consideration of health and safety factors and the environmental factors in the one consideration and that therefore this act actually provides for potential compromise. I do not object to that, but it seems to be the inevitable consequence of the state allowing for section 72B of the commonwealth legislation.

The CHAIRMAN: So, the Hon. Mr Wade agrees with section 72B?

The Hon. S.G. WADE: All I am saying is that the opposition is proceeding on the basis that it is legitimate to consider the full range of factors, but the Hon. Mark Parnell seems to be proceeding on a different basis.

The Hon. G.E. GAGO: The precautionary principle is enshrined in the act in part 1, section 4, 'Regulatory framework to achieve object', which provides:

The object of the act is to be achieved through a regulatory framework, which—

(aa) provides that where there are threats of serious or irreversible environmental damage, a lack of full scientific certainty should not be used as a reason for postponing cost-effective measures to prevent environmental degradation...

The Hon. S.G. WADE: I appreciate that that is a confirmation of the fact that this state legislation is consistent with its obligations under the intergovernmental agreement on environment and does include consideration of the precautionary principle, but my reading of section 72B of the commonwealth act is that it requires consideration of both health and safety risks and benefits and environmental risks and benefits; in other words, it applies the precautionary principle to both health and safety and to the environment. Therefore, the opposition believes that is a responsible balancing of all the interests of the public. I want to put on the record that the Hon. Mark Parnell's presumption that the environmental precautionary principle overrides the health and safety precautionary principle is not enshrined in section 72B.

The CHAIRMAN: So, you are asking the minister whether she agrees with your point of view?

The Hon. S.G. WADE: As a member of the Legislative Council, I do not want to pass a piece of legislation that I misunderstand.

The Hon. G.E. GAGO: Both principles are upheld in the legislation. It is a balance of both economic and environmental issues and they are both incorporated. My understanding and advice is that one is not given greater predominance than the other.

The Hon. S.G. WADE: If I can be so cheeky, the minister inadvertently misstated the last statement. She said 'economic threat versus environmental'. The act talks about health and safety versus environmental. I take it that that is what she meant. I thank her for the clarification and defer to my colleague.

The Hon. M. PARNELL: To pursue this line, the commonwealth act in section 72B provides for the things the minister has to take into account in deciding whether or not to allow an emergency dealing determination. The section provides that the minister has to be satisfied that any risks posed by the dealings proposed to be specified in the emergency dealing determination are able to be managed in such a way as:

(1) to protect the health and safety of people; and,

(2) to protect the environment.

The difficulty with that provision is that the way ministers would normally satisfy themselves that the potential harm of the release of GMOs will not adversely affect the environment or the health and safety of people is with a thorough process of regulation and assessment. The whole purpose of this act is to dispense with that process of assessment and regulation. Therefore, it begs the question: how can the minister be satisfied?

The commonwealth act talks about the minister receiving advice from the regulator, but the regulator is in no better position than the minister. If the thorough assessment has not been done, the concept of these people having to be satisfied is unsatisfactory, because we are taking away from the very means they would normally use to achieve satisfaction.

The Hon. G.E. GAGO: The regulator is not being bypassed. The minister may make an emergency dealing determination only if the minister has received advice from the regulator. So, that is required. A risk assessment is still undertaken by the Gene Technology Regulator, because the act requires that, before the commonwealth minister makes a determination, he or she must have received advice from the regulator that any risks posed by the proposed dealing with the GMO can be managed so as to protect the health and safety of people and the environment.

The Hon. S.G. WADE: I might be showing my ignorance here but I presume that, when the minister uses the term 'regulator', we are talking about the Gene Technology Regulator?

The Hon. G.E. GAGO: Yes.

The Hon. S.G. WADE: My reading of section 72B(2)(a) suggests that the minister is not required to consult the regulator. The minister is required to consult the Commonwealth Chief Medical Officer, the Commonwealth Chief Veterinary Officer, the Commonwealth Chief Plant Protection Officer or a person specified by the regulations. Is the minister quoting regulations under the act that require consultation with the regulator? If so, I think it is also worthy of note that the commonwealth minister would need the advice of his other officers.

The Hon. G.E. GAGO: I can only read what is in front of me, and this is section 72B of the commonwealth act. Section 72B(2) provides:

The minister may make an emergency dealing determination only if:

…

(c) the minister has received advice from the regulator...

I do not think it can be any clearer than that.

The Hon. S.G. WADE: My colleague the Hon. Mark Parnell has highlighted section 72B(2)(c), which talks about the advice from the regulator, and I understand the difference. Perhaps the difference is that section 72B(2)(b) is about assessing the threat to health and safety and paragraph (c) is about the impact of the changes to the genes. I appreciate the minister's clarification.

The Hon. Mark Parnell, in his learned contribution on this item, mentioned that in the commonwealth parliament there was a comment that economic threat would not be a consideration for section 72B. I understand that, under the commonwealth Acts Interpretation Act, the fact that that assurance was given in the commonwealth parliament may assist a court in the future to consider the intent of the legislation. However, under South Australian law, any comments in this parliament in relation to a piece of legislation do not assist the courts in interpreting the legislation. I would like clarification on what assurance we have in the legislation itself—not just in commonwealth Hansard assurances—that economic threat is not part of that balancing act that we are considering in section 72B.

The Hon. G.E. GAGO: I am advised that the bill before us states quite clearly under new section 72B that the minister may make an emergency dealing determination. Subsection (2) provides:

The minister may make an emergency dealing determination only if the minister administering section 72B of the commonwealth act has made, or is proposing to make, a corresponding commonwealth emergency dealing determination.

So, we would not be doing it separately from the commonwealth.

The Hon. SANDRA KANCK: I am curious to know, in terms of what constitutes an emergency, whether a spillage of GP canola would be in that category.

The Hon. G.E. GAGO: I have been advised that, while 'threat' is not defined, it must be an actual or imminent threat to the health and safety of people or the environment. There is a similar provision in the therapeutic goods legislation. So, this is not the only legislation where it is not specifically defined, and it does not seem to have created any ambiguity there. In relation to a GM canola spill, you would not use emergency provisions for that, because it is already a GMO and already would be covered under the current regulatory system.

Clause passed.

Remaining clauses (28 to 57) and title passed.

Bill reported without amendment.

Third Reading

Bill read a third time and passed.

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