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Control of Genetically Modified Crops Bill
Victorian Legislation and Parliamentary Documents
Circulation Print
EXPLANATORY MEMORANDUM
General
The Gene Technology Act 2000 of the Commonwealth and the
complementary Victorian Gene Technology Act 2001 are part of a national
scheme which regulates certain dealings with genetically modified organisms
(the Gene Technology Law). The national scheme deals with the
environmental, health and safety issues associated with gene technology and
establishes a national Gene Technology Regulator who can issue licences for
dealings with genetically modified organisms (GMOs).
The Gene Technology Regulator does not consider marketing issues which
may arise from a product being identified as genetically modified (GM) or
non-GM. However, the Gene Technology Law recognises that regulation of
GM crops for marketing purposes is a role for each State and Territory to
consider, as marketing issues are a significant factor in deciding whether to
grow GM crops or not. Section 21(1)(aa) of the Gene Technology Law
provides for the Gene Technology Ministerial Council to issue a policy
principle in respect of recognising areas designated under a law of a State or
Territory for the purpose of preserving the identity of GM or non-GM crops
for marketing purposes. On 31 July 2003, the Ministerial Council made a
policy principle which recognises the States' right to declare such areas.
In accordance with the policy principle, the Bill will enable Victoria to
prohibit or control the cultivation of GM crops in specified areas (or the
whole State) and specified dealings with those crops for the purpose of
preserving the identity of crops as either GM crops or non-GM crops for
marketing purposes.
The Bill will also immediately declare Victoria to be an area in which the
cultivation of specified GM canola crops which have been approved for
general release by the Gene Technology Regulator is prohibited.
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551143 BILL LA CIRCULATION 2/4/2004
Clause Notes
PART 1PRELIMINARY
Victorian Legislation and Parliamentary Documents
Clause 1 sets out the purposes of the Bill.
Clause 2 provides for the Bill to come into operation on the day after the
day on which it receives Royal Assent.
Clause 3 includes definitions of terms used in the Bill.
PART 2ORDERS DESIGNATING AREAS
Clause 4 provides for the Minister to make an order designating an area
(or areas) of Victoria to be an area--
· in which GM crops or a specified class of GM crops
must not be cultivated; or
· an area in which GM crops must not be cultivated
unless they are of a specified class; or
· which is the only area in which a specified class of
GM crops may be cultivated.
An order may designate part or all of the State as an area to
which the order applies.
Clause 4 also provides for an order to impose conditions on the
cultivation of GM crops in the designated area or to prohibit or
impose conditions on any other dealing with GM crops or
GM crop related material. The prohibition or imposition of
conditions on other dealings with GM crops can apply regardless
of where the crop was cultivated or the dealing takes place.
For example, an order may only allow cultivation of a specified
GM crop in a specified part of Victoria but the order may impose
conditions on the transport and storage of the product of that
crop throughout Victoria to ensure that GM crop product and
non-GM crop product are segregated throughout the supply
chain. These restrictions would also apply to the product of that
GM crop cultivated outside Victoria if it is subsequently
transported or stored in Victoria.
Clause 5 specifies when an order takes effect and ceases to take effect.
Clause 5 also requires that notice of an order must be published
in the Government Gazette and in a newspaper circulating
generally throughout the State as soon as practicable after it is
made.
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Clause 6 provides for the Minister to exempt a person or class of persons
from the operation of all or part of an order, subject to specified
conditions.
Victorian Legislation and Parliamentary Documents
The Minister may grant an exemption for the purpose of allowing
a person or class of persons to cultivate GM crops on a limited
scale for the purposes of research or development or to deal with
GM crops or GM crop related material in a particular way.
Clause 6 provides for an automatic exemption from the Bill to
apply to a person who cultivates a GM crop in accordance with a
GMO licence that does not authorise the intentional release of the
relevant GMO into the environment. This would allow
cultivation to occur in a controlled environment (for example, a
laboratory) where there is no market risk.
Clause 7 provides for the Minister to determine a threshold level for the
presence of a GMO in crops, including the presence in GM crop
products such as grain. The Minister can determine different
thresholds for different GMOs.
The setting of a threshold will provide a tolerance level for the
presence of GMOs in crops. The presence of GMOs below the
threshold will be disregarded for the purposes of the Bill.
Clause 8 provides for the Minister to vary or revoke an order, specifies
when a variation or revocation order takes effect and requires
notice of a variation or revocation order to be published in the
Government Gazette or in a newspaper circulating generally
throughout the State as soon as practicable after it is made.
Clause 9 provides for the making of an order or the variation of an order to
be subject to disallowance by Parliament. The Bill provides for
this by applying the provisions of the Subordinate Legislation
Act 1994 to the making of an order or the variation of an order as
if it were a statutory rule for the purposes of tabling in Parliament
and disallowance.
Clause 10 allows the Minister to seek advice, initiate an investigation or to
take any other action considered appropriate before taking action
under Part 2 of the Bill.
Clause 11 enables an order or an exemption to apply, adopt or incorporate
documents.
Clause 12 provides that a later order prevails over an earlier order in the
event of any inconsistency.
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PART 3MONITORING AND ENFORCEMENT
Clause 13 provides for the Secretary to appoint persons employed under
Victorian Legislation and Parliamentary Documents
Part 3 of the Public Sector Management and Employment Act
1998 as authorised officers for the purposes of the Bill.
Clause 13 also provides for authorised officers to be issued with
an identity card containing a photograph of the officer and
requires authorised officers to produce their identity card before
exercising a power under the Bill or at the request of the occupier
of premises at which the officer is exercising a power.
Clause 14 provides authorised officers with the following powers contained
in Part 11 of the Gene Technology Act 2001--
· the ability to enter premises and to exercise monitoring
powers for the purposes of monitoring compliance with
the consent of the occupier, under warrant or if the
occupier is a GMO licence holder or is covered by a
GMO licence;
· the ability to enter premises to search and seize
evidential material with the consent of the occupier or
under warrant if the officer has reasonable grounds for
suspecting that there may be evidential material on the
premises.
The Bill also provides authorised officers with an additional
ground on which to enter premises and to exercise monitoring
powers being to determine whether there is a risk to a market
from the presence on the premises of a GM crop, GMO or
GM crop related material. This additional ground is necessary
as the Gene Technology Act 2001 does not deal with marketing
issues.
Clause 15 provides the Magistrates' Court with the power, on the
application of an authorised officer, to order a GM crop or
GM crop related material cultivated or dealt with in
contravention of the Bill to be forfeited and to be destroyed or
disposed of. The forfeiture power is modelled on the Drugs,
Poisons and Controlled Substances Act 1981.
Clause 16 provides for a person affected by a forfeiture order, including the
Crown, to appeal against the decision to make the order. It also
provides for a person affected by a failure or refusal to make a
forfeiture order to appeal against the refusal or failure.
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PART 4OFFENCES
Clause 17 makes it an offence for a person to cultivate a crop in
Victorian Legislation and Parliamentary Documents
contravention of an order or to otherwise contravene an order.
The offence only applies if the person knows or is reckless as to
whether the crop or crop related material to which the
contravention relates is a GM crop or GM crop related material.
Clause 18 provides that a person who makes, develops, produces or
manufactures a GMO (the gene technology provider) is guilty of
an offence if the gene technology provider sells or gives the
GMO to another person and knows or reasonably ought to have
known or has reasonable cause to believe that the other person
intends--
· to use the GMO to cultivate a crop in contravention of
an order; or
· to sell or give the GMO to a third person for use by that
third person to cultivate a crop in contravention of an
order.
Clause 19 makes it an offence to knowingly give false or misleading
information in complying or purportedly complying with the Bill.
Clause 19 also makes it an offence for a person to produce a
document in complying or purportedly complying with the Bill
that the person knows to be false or misleading without
identifying the matter in which it is false or misleading or, if
practicable, providing the correct information.
Clause 20 makes it an offence to hinder or obstruct, without reasonable
excuse, an authorised officer exercising a power under the Bill.
Clause 20 also makes it an offence for a person to impersonate an
authorised officer.
Clause 21 provides that--
· an officer of a body corporate that is guilty of an
offence is also guilty of the offence if the officer
knowingly authorised or allowed the contravention,
whether or not the body corporate has been found guilty
of or was convicted for the offence;
· if it is necessary to establish the state of mind of a body
corporate in respect of an offence, it is sufficient to
show that the conduct was engaged in by an officer or
agent of the body corporate within the scope of his or
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her actual or apparent authority and the officer had that
state of mind.
Victorian Legislation and Parliamentary Documents
Clause 22 provides that where an offence contained in the Bill refers to a
"person", that reference is, in respect of an unincorporated
association, to be read as a reference to each member of the
association's committee of management.
Clause 23 provides that a person who attempts to commit an offence against
the Bill is guilty of an offence.
Clause 24 provides a person charged with an offence under the Bill with a
defence if the person can prove that they took reasonable
precautions and exercised due diligence to prevent the
commission of the offence.
PART 5OTHER MATTERS
Clause 25 provides for the Minister to delegate his or her functions or
powers under the Bill to a person employed under Part 3 of the
Public Sector Management and Employment Act 1998.
However, the Minister cannot delegate the power to make, vary
or revoke an order, to grant an exemption or the power to
delegate.
Clause 26 provides for the Governor in Council to make regulations
required or permitted by the Bill to be prescribed or necessary to
be prescribed to give effect to the Bill.
In particular, regulations may fix fees or charges to be paid in
relation to any matter associated with the administration or
operation of the Bill. For example, fees may be fixed for the
assessment of the adequacy of systems to ensure segregation, the
monitoring and auditing of systems and the assessment of
requests for orders and exemptions. Regulations may also be
made to prescribe procedures for requests to the Minister to make
an order or grant an exemption.
Clause 27 provides for the Bill to bind the Crown in right of Victoria and,
so far as the legislative power of the Parliament permits, in all its
other capacities.
Clause 28 provides that the order set out in the Schedule is to be taken to be
an order made under clause 4 of the Bill. Clause 28 further
provides that the order takes effect on the day on which the Bill
commences and that the requirements under the Bill providing
for the notice of an order to be published in the Government
Gazette and a newspaper (clause 5(3)) and provisions relating to
disallowance of the order (clause 9) do not apply.
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SCHEDULE
Schedule designates Victoria as an area in which the cultivation of
Victorian Legislation and Parliamentary Documents
specified GM canola crops which have been approved by the
Gene Technology Regulator for general release is prohibited.
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