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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-05-02 Daily Xml
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GENETICALLY MODIFIED CROPS MANAGEMENT (RIGHT TO DAMAGES) AMENDMENT BILL

Introduction and First Reading

The Hon. M. PARNELL (16:13): Obtained leave and introduced a bill for an act to amend the Genetically Modified Crops Management Act 2004. Read a first time.

Second Reading

The Hon. M. PARNELL (16:14): I move:

That this bill be now read a second time.

The Greens are very pleased that South Australia has maintained its status as a GM-free zone with the current indefinite moratorium on commercially grown genetically modified crops being supported by all major political parties. It is the right decision for our state, and ultimately I believe it will be shown to be the most economically prudent decision as well.

Across the border, however, there is now some consternation amongst farmers that the price for genetically modified canola is consistently lower than for traditional crops, and in some cases the price for GM canola is $40 to $50 per tonne less. That flies in the face of the promises the large multinational GM companies have made to farmers about how much more money they will make by growing their special patented seeds.

In fact, to stem the crisis of confidence, we find that Monsanto is now offering special deals in which they promise that farmers will not be more than $10 worse off if they grow their product compared with traditional seeds. I refer members to a letter on Monsanto's letterhead, dated 22 March 2012, sent to a number of farmers, where they say that with the special offer they are making the guarantee that there will not be more than a $10 per metric tonne discount; that is, the price you get for growing a Monsanto seed will not be any more than $10 per tonne less than for other seeds.

The issue of genetically modified crops has been debated many times in this place, and I will be fairly brief today. The key point of this bill before us is in relation to the rights of farmers not to be unreasonably damaged by the actions of others. It is a longstanding principle of our legal system that, when one person's actions infringe on the rights or the property of another person, then the law can and should step in to redress that wrong. The wrong I am talking about in this case is where a person, through no fault of their own, finds they have suffered economic loss as a result of genetically modified organisms finding their way onto their land.

Members would be perhaps aware of a high profile case recently launched in the Supreme Court of Western Australia, whereby a farmer is suing his neighbour for economic loss as a result of the first farmer's loss of organic certification and therefore loss of income from the crops that he grows on his land. This case commenced in the Supreme Court of Western Australia on 3 April this year, and I will just refer to a few sections from the media statement put out by Slater & Gordon, the lawyers who represent the farmer, Mr Marsh, as a public interest case. The statement says:

A writ lodged in the Supreme Court today on behalf of Kojonup farmer Stephen Marsh will test the common law rights of property owners to recover losses as a result of genetically modified contamination on their land and their rights to prevent further contamination.

The legal action has been taken after approximately 70 per cent of Mr Marsh's farm was stripped of its organic certification in 2010.

The claim, lodged by law firm Slater & Gordon, alleges Mr Marsh's property was contaminated by GM canola seed from his neighbour's property. It is alleged that the canola seed was blown onto Mr Marsh's property, contaminating his land before harvest and causing the substantial loss of the farm's organic status.

Slater & Gordon, Practice Group Leader, Mark Walter said Mr Marsh was seeking damages for the loss of his organic certification and a permanent injunction to protect his farm from future contamination.

He said the cost of the contamination is yet to be fully determined as Mr Marsh is yet to regain his organic certification status, and is still suffering an annual yield financial loss as a result.

'At the moment Mr Marsh has no protection against contamination unless he seeks an order of the court. It's unfortunate that this is necessary, but it must be done if Mr Marsh is able to protect his farm and livelihood.

'This is a big step; no one wants to be suing their neighbour, especially in a farming community. However once the full extent of the ongoing losses was clear Mr Marsh really had no choice but to go to court.'

That is at the heart of the bill that I am bringing before the parliament today, trying to avoid the situation that Mr Marsh is facing in Western Australia where his only alternative is to go to the courts and to sue his neighbour, the one he says is responsible for the contamination of his property and, therefore, the loss of his organic status and, therefore, the loss of income. What a terrible situation, farmer having to sue farmer.

However, it is not just in Western Australia. Similar circumstances have arisen in Victoria as well, just across the border in Western Victoria. Members might have seen media reports from around this time last year following the floods in Western Victoria, out in the Wimmera district in particular.

What happened over there was that one local farmer from Natimuk in Western Victoria, Mr Bob Mackley, claimed that heavy rain washed GM canola from his neighbour's property through the boundary fence onto his own property. Whilst he is not an organically certified farmer, as I understand it, he is concerned that he will still suffer economic loss as a result of that contamination. He told the ABC's rural reporter last year:

There are three issues which concern me greatly. Number one is it's forcing me to change my rotations because I have a neighbour that's growing GM canola. It's also making my weed control issues far more complex.

I will just point out there that the genetically modified crop we are talking about is Roundup Ready canola, which means it will withstand spraying with the herbicide Roundup which will, presumably, kill other weed species but not harm the actual crop. Unless you are growing that particular variety of GM canola, spraying Roundup is probably going to kill your crop, so he has had to change his weed control arrangements. He goes on to say:

Thirdly, and this is the real kicker, what ongoing liability is there regarding having this material on my land?

I think he is referring there to two issues. One is economic losses that he might suffer but, also, we are aware that there are cases overseas where the owners of these genetically modified crops start pursuing people who have them on their property for breach of intellectual property rights, even though often these people are the innocent victims of a contamination.

There are two examples: we have Western Australia and Victoria where farmers are starting to suffer what I have been saying for the last six years is the inevitable consequence of allowing GM crops to be grown. As I have said, in South Australia we have held the line and we have maintained the moratorium; but I do fear for farmers who are near the border, farmers who are likely to suffer contamination, especially from across the Victorian border.

The bill I have introduced today is in all respects identical to bills that I have introduced in 2007 and 2009. In those years, the context was that we were still fighting to maintain the moratorium. We have won that fight and what we now need to do is make sure we give protection to our farmers. I will not go through all the detail of the bill. For the purposes of Hansard I will refer people to my introduction of similar bills on 21 November 2007 and 4 March 2009.

At the crux of the bill is a provision which says that legal liability for loss lies with the owners of the technology, in other words, those multinational companies like Monsanto who have the patent rights or other intellectual property over these genetically modified seeds. That is where the buck should stop; that is where liability should lie, so that we do not have the situation that Mr Marsh is facing in Western Australia where he has to, first of all, identify which of his neighbours is the culprit and, secondly, sue them so that he can recover his losses. I think that is a most unsatisfactory way to go. Liability should lie with the ones who gain the most from this technology, that is, the big, multinational companies that sell the seeds and license the seeds to be grown.

I thought I would briefly put on the record why the government did not see fit to support this legislation last time and explain why I think the government should change its position this time. Back in 2007, the task of countering this legislation fell on the Hon. Ian Hunter and his argument was pretty simple, and it went like this. The government is about to declare the whole of South Australia a GM-free zone; as part of that declaration, there is going to be a prohibition on anyone transporting GM material into the state, and there will be large fines of up to $200,000 if they do so; therefore, that is going to provide protection for our farmers.

Therein lies the first fallacy: the fact that, whilst there might be fines for people deliberately bringing genetically-modified material into our state, those fines tend not to apply to birds, they tend not to apply to wind, and they tend not to apply to water. Those are the vectors I am more worried about. I am not as worried about people deliberately seeking to flout our genetically-modified status. The birds, the wind and the water do not give a toss for $200,000 fines. This material will end up in South Australia. I believe South Australian farmers will, in some cases, suffer loss and they need to be compensated.

What the Hon. Ian Hunter went on to say, back in 2007, was that the government considered the declaration of the GM-free zone and the criminal penalties for bringing that material into the state. He said:

The government considers that these provisions give growers of non-GM crops who have suffered a loss as a result of GM contamination the means by which to obtain compensation without altering the well-established legal principles associated with such matters (and I assume that means common law, negligence and consumer protection legislation). Any question of how liability should be apportioned is a matter for the courts, according to the specific circumstances of each particular case.

In that response the government was effectively washing its hands of the issue and saying, 'Well, we've done all we can. We've put fines in place. We've put a moratorium in place. If someone suffers loss, let them just run the gamut of the court system. Let them find a guilty person. Let them seek damages.' I say that the Stephen Marsh experience in Western Australia shows us that that is a very unsatisfactory way to proceed. We do not want to see farmer suing farmer, and that is even leaving aside the fact that questions of evidence (questions of proof, if you like) could be near impossible to prove.

If your South Australian farm near the border is within five, 10 or 15 kilometres of 20 other properties all growing genetically-modified canola, how do you know which seed from which farm blew across the border and contaminated your land and resulted in your suffering loss? It is going to be almost impossible to prove in a court of law. Therefore, I think the only sensible solution is the one that I have proposed in this bill; that is, for liability to lie where the main culpability lies—and that is with the owners of the technology, the large multinational companies who license the use of their intellectual property and who I believe are the ones who should ultimately bear the cost of any legal action, any loss.

In conclusion, this bill will help protect the interests of South Australian farmers. It is a very useful adjunct to what was a good multiparty resolution of this issue in terms of keeping South Australia GM free. The bill itself clearly will not stop contamination. It will not stop this material coming across onto our farms, but it will make it easier for affected farmers to get just compensation because it will clearly identify who it is they need to chase for compensation—and that is not their neighbours but the big multinational companies that are at the root of this problem. I commend the bill to the house.

Debate adjourned on motion of Hon. J.M. Gazzola.

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