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Friday, 15 November 2002
Page: 6546

Senator CHERRY (3:34 PM) —I move Democrat amendment (8) on sheet 2606:

(8) Schedule 1, page 11 (after line 18), after item 37, insert:

37A After section 80


80A Liability for damage caused by genetically modified plants

(1) The grantee of a PBR in relation to a genetically modified plant and any user of that genetically modified plant shall be jointly and severally liable for any loss or damage caused by that genetically modified plant:

(a) to another plant variety through genetic contamination; or

(b) to the health of any individual.

(2) An action for any loss or damage mentioned under subsection (1) may be commenced in any court of competent jurisdiction by:

(a) any person that has suffered the loss or damage; or

(b) any other person in the public interest.

(3) Any person who brings an action under paragraph (2)(b) shall not be entitled to any award for damages, instead any damages awarded by a court shall be awarded to the Commonwealth.

(4) For the purposes of this section genetic contamination means the transfer of genetic material from a genetically modified plant to another plant variety including (but not limited to):

(a) pollen dispersal by way of wind, insects or birds;

(b) seed dispersal:

(i) by shared sowing;

(ii) by cultivation and harvesting equipment which has not been thoroughly cleaned between uses;

(iii) by accidental spillage from haul trucks;

(iv) by the delayed germination of lost genetically modified seeds among organic crops grown in fields previously sown to genetically modified crops;

(v) by wind, water, birds or other animals;

(vi) by other methods of seed dispersal.

Amendment (8) does two things. Firstly, it will enshrine joint and several liability so that producers of genetically modified plant varieties with a PBR that causes damage will be held liable for the damage caused. Secondly, it allows anyone to bring an action for injury in the public interest, ensuring that any recovery goes to the Crown. While lands and public lands will now be afforded the common law protections that have traditionally applied only to private property and private property owners, the provisions for joint and several liability are driven by concern that liability for genetic contamination—that is, the transfer of genetic material from a GM plant to another plant by any of a variety of means—should not rest with the land-holder alone. The current law allows a party that has suffered injury or damage or interference with use and enjoyment of their land to bring an action against the parties responsible. In general it is more difficult to prove liability against a party once removed as a source of injury. With new plant varieties, for instance, it will be easier to show that a farmer planted a particular variety of plant that caused damage to a neighbouring farmer than to show that the producer of that variety is also responsible.

As for the recovery provisions, the Democrats' amendment provide that any damages awarded for public interest litigation shall, as I said earlier, be awarded back to the Crown. This amendment would certainly ensure that we avoid some of the issues we have seen in North America in terms of liability for contamination arising out of genetically modified crops. It is something that we believe needs to be considered. I believe that this is the appropriate bill to do it in, because it essentially deals with economic aspects flowing out of the issue of the adoption of new plant varieties.