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Tuesday, 29 August 2000
Page: 19544

Mr MURPHY (5:28 PM) —The Gene Technology Bill 2000, the Gene Technology (Licence Charges) Bill 2000 and the Gene Technology (Consequential Amendments) Bill 2000 attempt to come to terms with biotechnology as it achieves what was the unthinkable only a few years ago. There was a time when we looked on with horror at Nazi Germany performing its genetic experiments in pursuit of a master race; yet this legislation acknowledges the very fact that technology and the technocentric perspective have indeed become enmeshed with the categorical imperatives of blind economic pursuits, particularly the utilitarian and hedonistic perspectives.

We are talking quite casually now about gene technology. What is gene technology? At its simplest it is about decoding the deoxyribo nucleic acid, DNA, in the discovery of the sequences called genes. The utility or usefulness of this is to eradicate the weaknesses of unwanted gene traits, whilst retaining or amplifying the strongest or wanted genes. The bill attempts to address the issue of ethics in gene technology. How is the issue of gene technology dealt with by our society? The issue of this bill is not so much its attempted structure to incorporate ethical and religious sentiment in the framework of committees but which imperatives will dominate the discussion. This is by far the more serious problem with this legislation.

The mechanics of the bill are straightforward enough and in themselves uncontentious. There are to be a number of separate committees, including a scientific committee, an ethics committee and a community committee. They are to have an advisory role with a newly appointed gene technology regulator—GTR—who is responsible for administering the legislation and making decisions under the legislation. There are a number of outstanding issues relating to the effectiveness of the bill in respect of the ability of Australian society to deal with the consequences of this direction towards gene technology, or to deal with the imminent legal and industry consequences from this legislation.

It is this reductionist debate which drives me to despair. I was not a member of this House when the so-called Banking Industry Ombudsman came into being by virtue of legislation passed by this House, nor was I present when the legislation on media self-regulation came into effect. Without exaggeration, this bill is a direct consequence of powerful industry groups seeking to be permitted worldwide to further the cause of gene manipulation. That is the primary ethic. The ethical issues are couched in terms of ultimate benefits. We are told that there will be healthier and more abundant foods. We are told that these foods will therefore be cheaper, and will be more resilient to disease.

However, there is a profit motive in all this for those seeking to exploit gene technology, and with this profit motive comes the conflict between the utilitarian ethic and the pursuit of the honest good. It is the honest goods which are an issue. These honest goods include the following: the right of man to manipulate genes for some utilitarian purpose—all things have a purpose, even weaknesses and disease. What right does a market driven multinational corporation have to decide what is good or bad in a living organism and then seek to change it? The entire bill is couched in the commoditisation of things. Everything is reduced to its biological building block. Everything has a price and is therefore capable of being owned, traded and sold. Therefore, the value of the gene is calculated on whether it is good or bad, which is dependent on the same tired, old, fundamentally defective ethic of pursuing the subordinate goods of utilitarianism or usefulness and hedonism or pleasure. I refer to Bills Digest No.11 2000-01 which goes so far as to give the example that we may even want to eliminate unwanted tastes in food. This is how we now adjudicate nature.

This bill, like any other bill, cannot be read alone, ignorant, as it were, of pre-existing domestic legislation or international trends in the law. Again, the Bills Digest will provide an exhaustive analysis of the international instruments and domestic and international laws relating to this bill. There are too many relevant instruments, legislation and papers to go into any detail here. However, again this analysis is narrow for it ignores perhaps the most invasive element of current trends towards globalisation befalling us as a country and throughout the world. I refer to the removal of trade barriers and the long line authority leading up to and including the recent efforts by certain entities towards ratification of the Multilateral Agreement on Investment—MAI. Whilst the MAI is a dead horse in itself, the philosophy of a globalised economy with no trade impediments to the free flow of capital is very much alive in contemporary thinking. The MAI was a result of over 20 international instruments through the Organisation of Economic Cooperation and Development—OECD. The instrument itself failed only through an overwhelming international outcry against the implications of this instrument.

Whilst MAI is dead, new initiatives are afoot through the World Trade Organisation, WTO. The corporate world seeks to stretch the boundaries of legality in their attempts to break down those barriers to free capital flows. Again, this is utilitarianism at its ugliest. By barriers, I refer to environmental, ethical and religious impediments—even social impediments such as a country's right to enact sovereign legislation which may positively discriminate against the free flow of capital. It is legislation such as this bill which is a prime target to MAI and its successors. This bill will establish parameters which may be seen to either prohibit or in some way restrict the flow of capital by those seeking to maximise industrial gains through gene technology. Indeed, this bill has in contemplation the very pre-existing domestic legislation which is easily the target of subsequent international litigation. I refer to the various domestic import-export laws which are currently in force such as the Agricultural and Veterinary Chemicals Code Act 1994, the Quarantine Act 1908, the Imported Food Control Act 1992 and the Export Control Act 1982, amongst others.

The obvious and explicit assertion is that the gene technology industry is here to stay. I am reminded again of the saying, attributed to Adolf Hitler, `Because man can do a thing therefore he must do a thing.' Gone are the days where a moral imperative, through the application of reason, would deny the performance of a thing ab initio. No, now we have conceded that, because utilitarian and hedonistic ethics have so gripped our society, we must have the purported benefits of gene manipulation technology, notwithstanding the potential costs—including environmental and ethical.

Further, these pursuits of the mere useful and pleasurable goods must always outweigh the honest good. The honest good cannot hope to compete against the wants of chemical and biocorporations and the wants of a hungry, hedonistic and utilitarian society which is directed to buy the products of biotechnology. It is truly a vicious cycle. However, it is the implied assertions that are even more disturbing. The implied assertions deal with the priority of values that are embedded in this bill.

Mr Sidebottom —Are you having a go at me?

Mr MURPHY —I would never have a go at the member for Braddon—he is my friend—or the member for Barker. The primary consideration is the affectation of the will—those things we seek which are based upon our hedonistic and utility driven wants. These subordinate goods drive us towards having the GTR as the ultimate arbiter of administering the legislation and making decisions under the legislation. The GTR's powers are listed on page 10 of the Bills Digest, and I will not go through them here. We are familiar with the administrative scheme of this bill. We know that there is a vast difference between what is a breach of an act and offences against regulations and other by-laws under the act.

We are further aware that codes, policies, guidelines and other non-statutory instruments are largely unenforceable at law, at best giving rise to administrative remedies, including recognition of legitimate expectations that a policy, code or guideline will be implemented according to the spirit of that instrument. There is a high degree of doublespeak in this legislation. We see at once that the ethics and community committees can only advise the GTR. They have no binding authority. The GTR is purportedly independent and appointed by the Governor-General, which really means on the part of the public—and so it should be.

But the begging structure is that the GTR is ultimately untrammelled by anyone other than parliament itself. I am particularly concerned about the fact that the policy principles are regulatory and hence will not be subject to direct debate in this House. They will be regulations and will be disallowable instruments. It will be up to each and every member of this House to be attentive and keep a vigilant check on every list of regulations tabled in this House to see when the policy principles are tabled. This is a most precarious way to administer the subject matter of a bill as significant as this. It brings to mind the very essence of the utility driven perspective and the technocentric perspective.

It is as if we can barter with nature. It is a perception that directs us to believe that we can negotiate with the natural order, as if nature itself is willing or able to concede inalienable laws in favour of our wants or pursuits of pleasures and useful commodities. We have reduced nature to a trading partner. We see nature as a thing that has goods that we want so we are willing to trade for them. If nature will not give us those goods, we will do what is logical—alter nature.

Throughout my reading of the Bills Digest, I was disturbed yet again to note the apparent absence of any direct reference to the precautionary principle in this bill. To my knowledge, there is no definition of the precautionary principle either alone or as part of the broader public policy that Australia is beholden to; namely, ecologically sustainable development. There is some indirect reference to the precautionary principle contained in the dialogue of the Bills Digest at page 25, and it is worth citing. It states:

Whether the best form of regulation of this experimental technology is prohibition on the release of GMOs into the environment, at least in the short term until sufficient scientific evidence has been gathered to make an informed decision, is an open question. Critics often point to dangers such as herbicide resistant weeds, harmful effects on beneficial insects, or the risk of losing natural genetic diversity in crops to a single genetically modified variety, which could lead to devastating crop failures ... On the premise that there has been little adequate or long-term testing in relation to these or other, as yet unforeseen, environmental risks or risks to human health, some commentators are questioning the desirability of gene technology, or at least the speed of its introduction.

I bring to this House's attention the specific wording `unforeseen, environmental risks or risks to human health'. This is precisely the role of the precautionary principle, which I spoke at length on when I spoke on the Environment and Heritage Legislation Amendment Bill 2000 on 29 June 2000. I welcome the comments of any member of this House which may enlighten us as to whether the precautionary principle was considered when drafting this bill. Against this background, I am compelled again to cite in this House subsection 6(2)(a) of the Protection of the Environment Administration Act of New South Wales. It reads:

6 (2) For the purposes of subsection (1) (a), ecologically sustainable development requires the effective integration of economic and environmental considerations in decision-making processes. Ecologically sustainable development can be achieved through the implementation of the following principles and programs:

(a) the precautionary principle—namely, that if 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. In the application of the precautionary principle, public and private decisions should be guided by:

(i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and

(ii) an assessment of the risk-weighted consequences of various options ...

Therefore, the lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. I can see no clearer application of the precautionary principle than in the case of GMOs. If ever there were an issue of the highest policy relevance to the application of the precautionary principle, it is in the case of GMOs. Further, I am not alone in my assessment of this concern. There is a significant cross-section of our community who equally share my concern, not merely on grounds of its ethical and social implications but in terms of its environmental impacts. The Bills Digest notes on page 25 that the member for Calare, Mr Peter Andren, in his aptly titled dissenting report Work in progress: proceed with caution, advocates a five-year moratorium on development of GMOs to enable adequate independent research to be carried out. I confess that I have not read Mr Andren's dissenting report; however, the word `caution' stands out in my mind as consistent with the policy rationale of the precautionary principle.

As I have already said, the precautionary principle appears to be all but absent in this bill before us today. It cannot remain silent. Precaution is not, on the face of this bill, present in the construction of the administrative processes of this bill. A regulatory framework exists, but this framework appears more compelled to fulfilling the utilitarian and hedonistic aspiration of the biocorporations and the government's profit driven perspective rather than doing what is explicitly stated in the Bills Digest in calling for regulation by prohibition.

The risks of GMOs are not negligible. Indeed, they are potentially biologically catastrophic, affecting life itself on this earth on a scale we cannot even begin to imagine. Given the very high risks at stake, the option to prohibit them is a very plausible one. Only our pursuit of utility and pleasurable goods stands in the way of us seeing clearly the associated risks and implementing a policy of precaution towards them. This is the essence of legislation such as this. It seeks to barter with nature, by giving the honest good of an ethically based law only second place to the primacy of wants based on usefulness and pleasure. Nature ordains and reason dictates that, if we get this wrong, we may literally pay with our lives for this mistake. Like the great biological catastrophic decisions of the past, once it is done, it may be impossible to reverse.

I note with humour the so-called compliance and enforcement provisions of this bill. Principle 7(d) of the 1998 `Regulation of Gene Technology' discussion paper talks about the states and territories having a discretionary power to opt out following a decision to release a GMO product. What a joke! As if nature cares about political boundaries. We will have Victoria releasing a GMO whilst New South Wales and South Australia do not. What will that achieve? Will New South Wales and South Australian farmers be able to thwart biocontamination across the border? Of course not. In any event, this power is discretionary. There is no power to enforce on the states or territories the opt-out of a decision to release a GMO. I note that the WTO has a hand in this legislation through the impact of Australia's obligations as a signatory to the WTO's Sanitary and Phytosanitary Agreement, the SPSA. The opt-out clause does not directly violate the WTO's SPSA because it is itself not a sanitary or phytosanitary measure but, rather, enables the states or territories to make such legislation. What of the states and territories? If they legislate in this way, does this not also bring them into conflict with the SPSA?

This is what I mean by bartering with nature. The proposed so-called `safeguards' are puerile. They are fictional because they deny reason in favour of the will of the legislator to maximise the want based perspective, being the utility and pleasure maximising perspective. I am afraid this will not wash here. The `other side' is mother nature itself. Natural laws are intractable. Nature will react the way it will, and no technocentric solution will be available should a biological catastrophe surface. We are indeed dealing with the unknown in that we cannot scientifically identify even a small percentage of foreseeable possible outcomes.

I am reminded of the same tired old reasoning that we continuously fall prey to as an Australian culture that is engrossed and besotted with pleasures and utility. I refer to the high water mark of our arrogance and our stupidity in the other world renowned biological catastrophes such as the deliberate release of the dreaded cane toad into the environment, along with rabbits, foxes and other `clever' decisions. Each and every one of the deliberate introductions of foreign species into our environment had, at its base, a utilitarian and hedonistic purpose. That is, they were to perform some task useful and/or pleasurable in man's use of land. In doing so, the risks associated with the release of such organisms into the unique Australian environment were simply ignored, not assessed, or subject to complete blindness in our low-level ethics of the want based perspective of usefulness and pleasure. The consequence, as we now well know, has been the environmental decimation of an entire continent's ecology with plague proportions of cane toads, rabbits and foxes, just to name a few.

Mr MURPHY —I am very pleased to be entertaining the members for Braddon, Dickson and McEwen. By comparison, those artificial releases of life into our environment are minor compared to what we will experience with GMOs. They are small in comparison to the wholesale genetic restructuring of plant and animal life in all its forms. Quite frankly, in ratio to the level of research or absence thereof in respect of cane toads, rabbits and foxes, precaution demands that Mr Andren's recommendation of a five-year moratorium and those advocates of regulation by prohibition may indeed be the only prudent option.

I question the structure of power in this bill in that the most telling instruments in the day-to-day management of the regulation of GMOs will be in legally non-enforceable instruments. Further, it is proposed that the bio-industry is to be self-regulating. I can say that self-regulation does not work. As I said earlier in this speech, self-regulation has not worked in the banking industry or in the media industry. It will certainly not work here, in my view. Self-regulating industries do not work because the utilitarian and hedonist pursuit of the useful and pleasurable goods always outweighs in our minds the higher or honest good. It is the honest good which is the subject of this debate. That honest good includes the impact on all Australians of GMOs in all their forms. There is also a gross offence against ethics for its own sake, which includes intrinsic values and what I call the `right to imperfection'. A policy which even contemplates a world which values the eradication of weaknesses or undesirable genes is truly a frightening world. It is frightening because the question arises, `Where does this reasoning end?'