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STANDING COMMITTEE ON COMMUNITY AFFAIRS
23/04/2007
Gene Technology Amendment Bill 2007

CHAIR (Senator Humphries) —The committee is taking evidence in its inquiry into the Gene Technology Amendment Bill 2007. I welcome Ms Louise Sales and Mr Jeremy Tager from Greenpeace.

Mr Tager —I am currently a campaigner with Greenpeace International on global rice but was previously with Greenpeace Australia Pacific working on issues of canola and the gene tech actors.

CHAIR —I think information has been provided to both of you on parliamentary privilege and the protection of witnesses. We also have a submission from Greenpeace on the bill. We would like to ask you some questions about that, but I invite you first of all to make an opening statement. If you could keep it to no more than 10 minutes, that would help us very much. Please go ahead.

Ms Sales —I am going to talk to the submission that we put in so it might be helpful if people have that in front of them. On looking at the bill, there were a few major concerns that we had. Most of these concerns were around part 5A of the amendment, which basically gives the minister unilateral powers to approve the release of GMOs. We also had concerns about the curtailing of certain public consultation. There was another part of the act that removed the requirement for public consultation in dealings that may pose significant risks to the health and safety of people or the environment and also removed the requirement to consult the states and other parties regarding the field testing of genetically engineered crops. We are also concerned about the proposed merger of the Gene Technology Community Consultative Committee and the Gene Technology Ethics Committee because we thought that would further limit the ability for public consultation on the act.

I will start with our particular concerns with part 5A. One major concern we have with this is that we think part 5A actually falls out with the object of the Gene Technology Act. The object of the act is defined as:

 ... 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.

However, part 5A of the bill as it currently stands is not intended to protect against risks posed by or as a result of gene technology but rather to bypass the regulatory process and to approve GMOs in cases where the minister is satisfied that there is an imminent threat. We also have some concerns about the defining of imminent threat. Basically, part 5A gives a broad discretion to the minister and almost no criteria that must be followed. For example, a threat can include pests and diseases even if the threat is constant and chronic. There is no requirement that the threat be of a particular severity or scope and nor is the term ‘threat’ explicitly defined. It is basically left open to ministerial discretion without the need to prove that a threat actually exists—it is simply that the minister is satisfied that a threat is imminent. In making a decision under part 5A of the act the minister is merely required to take advice from one of his advisers and to consult with the states but not explicitly to get consensus on whether it is a threat.

I noticed in the actual review of the act itself there was concern raised about the lack of ability for the minister to fast-track vaccines—for example, for bird flu, cholera and things like that. We believe that part 5A as it currently stands has a much wider scope than that which is needed to deal with the emergency fast-tracking of vaccines and the like. If that is the intention then it should be explicitly stated in the act. One possible mechanism we discussed is that perhaps the TGA should make a request to the OGTR when such vaccines do need to be fast-tracked to speed up the process. We believe that, whenever any genetically-engineered product is released into the environment, there needs to be a full safety assessment and that that should never be compromised. So we think that, basically, the OGTR should only ever fast-track something if the risk of not doing anything far outweighs the risk of actually releasing a GMO. We think it falls out with the scope of the act as it currently stands so it needs to be either scraped completely or severely curtailed to reflect the original intent, if the providing of vaccines was the original intent.

Our other major concern with the amendment is the complete omission from the act of section 49, which deals with things that may pose significant risks to the health and safety of people or the environment. This omission basically removes the requirement for public consultation when a proposed dealing may pose significant risks to health and safety of people or the environment. This would basically remove the need for the federal government to consult with not only the state government but also local councils and members of the public whenever there is a controlled release into the environment, which we think is against the public interest.

Another attack on what we believe to be the check and balance system of the original act is the merger of the Gene Technology Community Consultative Committee and the Gene Technology Ethics Committee to create the Ethics and Community Committee. We basically think that this eliminates a 12-person committee intended to advise the ministerial council, further reducing the potential for public consultation regarding the government’s policy on GMOs. Amongst people we spoke to there seemed to be consensus that these committees are rather ineffectual, but we think there is a need for a reform of the committees to give them more teeth rather than to scrap them altogether. They should provide an important function.

Another flaw in the amendments is section 35A, which says that a person must not breach conditions of an emergency dealing determination. With the current broad scope of section 5A, we are concerned about the ramifications if an emergency dealing is made as a result of pest attack and what this could mean for individual farmers who fail to carry out federal government recommendations. We are concerned that section 5A in particular will be used by the federal government to override the state moratoria on gene—

CHAIR —Do you mean part 5A?

Ms Sales —Part 5A, I am sorry. Do you have anything to add to that, Jeremy?

Mr Tager —No, not at this point. I think that really covers in a general way the concerns we have.

CHAIR —Thank you for that opening statement. That covered the issues that have been raised I think pretty comprehensively. I will start off with a couple of questions. You certainly, I think validly, draw attention to the width of powers that are available under part 5A to a minister to make a number of decisions that cut across the existing arrangements in the legislation that deal with consultation, due process, appeal rights and so forth.

I put it to you, however, that the arrangements here with emergency determinations would reflect the kinds of powers that would accrue to a minister or some other authority in the event of equivalent emergencies in other areas of community life. For example, powers would certainly be available to certain appointed officers where there are civil emergencies or climatic catastrophes such as the cyclone in Innisfail last year. For example, there would be the power to take and use property that belonged to somebody else or the power to close down certain activities or functions that might impede emergency operations. There would be limited appeal rights in those circumstances against the designated authority to take those steps.

Can you indicate to the committee why you feel that the emergency powers here, which would replicate, broadly speaking, the sorts of emergency powers available in other equivalent circumstances, are not appropriate for some kind of emergency dealing with an issue relating to gene technology?

Mr Tager —I will try and reply to that first. The first thing to note is that the emergency provisions that are being provided here are not within the ambit of the expertise of the regulator. In fact, the kind of emergency that is suggested here is a medical emergency. This is what is contained in the review of the Gene Technology Act and, in private or public discussions regarding the act, it has been suggested that the reason that we need this particular provision relates to emergencies such as bird flu. In the event of a medical emergency, this is well outside the ambit of the Gene Technology Regulator, whose expertise would be in assessing the risks of releasing a GMO without proper assessment. But that should be contingent on a request coming from the medical community that there is a risk of that nature that is imminent and is something that may be able to be dealt with through a genetically engineered organism.

The way the provisions are currently worded, firstly, does not require an emergency and, secondly, gives the minister scope to act in an area where there isn’t expertise within the ambit of the act, so the act is not about determining medical emergencies. Why we argue that this is outside the ambit of the act is that it relates to circumstances and risks associated with non-genetically engineered emergencies. So, for instance, if you have bird flu as the emergency that is the subject of that particular notification, that is not the way the act sees the regulator acting. I can see, for instance, that where there is contamination occurring as a result of genetic engineering in fields and there is a health risk associated with that, the emergency provisions relating to that would be entirely appropriate where they could recall and make all sorts of emergency provisions relating to the risks associated with GE. Here we are not talking about the risks associated with GE; we are talking about the risks associated with a medical emergency that does not have anything to do directly with genetically engineered organisms.

CHAIR —I suppose the question is whether a response to a medical emergency involving some areas of control or power exercised under the Gene Technology Act would be appropriate in such an emergency. Obviously, when we get to the department and the Gene Technology Regulator later today, we will be able to ask what kinds of emergencies might be envisaged in that situation, and I am not clear what kinds of powers could be exercised in that scenario. Isn’t it possible, say, that with an outbreak of bird flu, some determination, which is within the purview of this act, might be an appropriate response? If that were the case, it need not matter that the regulator’s expertise is not in the area of medical issues. The minister is the one that has the power to make the determination and he or she would take advice, presumably from medical authorities, about an appropriate response. So wouldn’t that scenario give rise to an appropriate power of the kind that is outlined in the bill?

Ms Sales —We think that, as the bill is currently drafted, far too broad and sweeping powers are given to the minister. What is then implied in the review of the act is that the problems are just confined to one emergency such as bird flu, but this is not explicitly defined in the act; in fact, it is quite a broad scope and it talks about risks from pests and disease. The minister only has to be satisfied that there is an imminent threat, so there does not even have to be an emergency as such. So we think the powers given to the minister are far beyond the scope of what is necessary to fast-track, for example, a vaccine.

CHAIR —Let us assume that there is an emergency of some kind. You take issue, for example, with proposed section 35A. You say that there should not be a power for a determination to be made that requires a person to take an action specified in the determination or omit to take an action specified in the determination. Again, wouldn’t that be the equivalent of emergency provisions available to, say, an administrator appointed in an Innisfail type of situation, where he instructs public transport authorities to bring in public transport to take survivors out or instructs people to open the doors of public buildings to allow people to come in to shelter, or something of that sort? What is the difference between the kind of power in that situation and the kind of power which the minister is to accrue under this legislation?

Mr Tager —I think there are two big differences. The first is that the provisions themselves do not require an emergency. They simply require a finding of an imminent threat with virtually no criteria that would necessarily support that.

CHAIR —Okay.

Mr Tager —So there is both the lack of criteria and the ministerial discretion in terms of being satisfied that an imminent threat exists. If you look at the threats that are provided in section 5 provisions, those are not emergencies necessarily—for instance, threats of pests and diseases. Blackleg is a common problem in canola fields. Is there anything in the current provisions that would prevent that from being an imminent threat that would justify the release of a GMO, overriding both individual objections to that at a farmer level and state moratoria, at the same time?

The other thing is that when you look at emergency provisions that relate to things such as hurricanes you are looking at provisions that relate to dealing with circumstances in ways that are well accepted and understood. The release of a GMO into the environment is not necessarily one of those. And the notion of trying to deal with an emergency with a GMO that has not been tested has the potential to be an even worse cure. I think there is ample evidence and ample concern, even in the Gene Technology Act, that one of the reasons for having a regulatory regime is that the risks associated with GMOs are not well understood and need to be fully assessed.

If I can throw in a personal note here, 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. I think it is a highly risky activity to put that in the hands of a regulator, particularly a regulator that is, in our view, so politicised, and has tended to be very in favour of genetically engineered organisms, as has the current government.

CHAIR —Can I interrupt there for a minute, Mr Tager, to clarify something?

Mr Tager —Sure.

CHAIR —The power that has been granted here is not to the regulator, is it? It is to the minister.

Mr Tager —No, that is true. I suggest that the advice relating to whether to declare an imminent threat would probably come from the regulator, but you are right; I stand corrected on that.

CHAIR —The criteria for there to be a triggering of this emergency event obviously needs to be clear in the legislation, but you said that you took issue with the idea of pests or diseases being an appropriate trigger. Wouldn’t bird flu fall under that category of a disease? Why wouldn’t that be the kind of event that might appropriately trigger an emergency response?

Mr Tager —Certainly bird flu would, as perhaps would Ebola virus. The question isn’t whether there are legitimate emergencies that would need responding to with some kind of emergency provisions. Leaving aside what those are, I think the question is that the current wording is that the nature of the threats that are described are so broad that they could include the kinds of pests and diseases that you currently see in agricultural cropping systems all over the country.

Ms Sales —There is also a big difference between GMOs and vaccines—for example, vaccines that are developed in the lab, and genetically engineered crops that are released into the environment. We do not think the distinction is drawn between these two different sorts of GMOs in the act. If the intention is solely to confine part 5A to GMO vaccines that are developed in the lab, then that should be explicitly defined in the legislation.

CHAIR —You have raised, legitimately, the question of how such powers might be abused. Certainly they are broad and sweeping powers, and in the wrong hands they could certainly be abused—there is no question. You would accept that there would have to be emergency powers of some sort, would you not, to deal with a crisis such as bird flu?

Mr Tager —I think our view would be that that should be limited to medical emergencies. I think that, if you are talking about agricultural emergencies, that is clearly not justified by the current state of knowledge. I think that, as Louise pointed out, having a GMO vaccine developed in a laboratory that is used in a limited way—in other words, it is not a broad environmental release but used for specific treatment without, for instance, being planted in the ground—is very different from saying to a particular state or a particular group of farmers that they need to plant a disease-resistant GMO variety to respond to an existing problem with a variety of pests and diseases. I think a medical emergency is one that you could legitimately include in there, but that should be in conjunction with the powers that rest with the TGA and it should be specified in the legislation that it is intended for dealing with medical emergencies, not general agricultural problems.

Ms Sales —And we do not think there should ever be justification for releasing a GMO of any sort without a full safety assessment.

CHAIR —Well, let’s take a non-medical emergency situation. I am not sure if the calicivirus that was used to control rabbits would count as a matter that was governed by the gene technology legislation, but let’s assume for the moment that it was. We had a situation a few years ago where, because the virus had escaped from a site in South Australia where it was being tested and had started to spread, it was decided that on an emergency basis it should be released generally across the country in order to maximise its effectiveness. That would be an example of a non-medical emergency where you might argue that an appropriate authority, say a minister, should have the power to control, in this case, a pest—namely, rabbits—to deal with that particular problem. Would you accept that that is an example of a situation where you might need appropriate emergency powers like that?

Ms Sales —You talked about the calicivirus, but equally you could have referred to cane toads as an example of biological control gone wrong. I think that emphasises the importance of doing a full safety assessment when any living organisms are released into the environment. I think there is seldom justification for releasing any living organisms into the environment without a full safety assessment.

Mr Tager —A few years ago, CSIRO was actually involved in research into a genetically engineered virus for dealing with mouse plagues, which at the time were certainly seen as emergencies. But, as a result of, I think, intervention by a virologist at ANU, it was pointed out that the release of a genetically engineered virus into the environment had the potential to be far more dangerous than any mouse plague. I think the notion of an emergency such as you have outlined has to be tempered by recognition of how real the threats are from GMOs and from genetic modifications that have never before been seen in nature. The risk of something like the cane toads occurring but being invisible and untouchable in that sense is one that certainly Greenpeace believe is very real. We see so many emergencies that are real emergencies in terms of the lives that are affected by them on a day-to-day basis but that, at a national level, in terms of the kind of policy that should underpin the release of GMOs, certainly does not justify their release.

CHAIR —Thank you. Senator Moore?

Senator MOORE —I want to ask about the consultation process. Have you seen the explanatory memorandum that the department has put out with this bill?

Ms Sales —No, I do not believe we have.

Senator MOORE —It is a relatively short one, but it begins by saying that the vast majority of people support the legislation and talks about the extensive consultation. In terms of the issues you raised in your submission and in your evidence, I am interested in what feedback you got if and when you raised these issues with the department during that consultation.

Mr Tager —I was actually involved in some of the consultations on the Gene Technology Act initially, with the review process—not the subsequent consultations and the explanatory memorandum. That issue, this question of emergency provisions, was certainly never raised with Greenpeace. I am aware that Gene Ethics did note that, during the consultation that took place in relation to part 5, those who were making the presentation indicated that this was only about things such as bird flu vaccine. As a result of that, Gene Ethics indicated to us initially that they were not that concerned with the provisions. I have to say that I did start reading the explanatory memorandum but I found that it so poorly reflected the actual provisions in the act in terms of their scope that it was not a very valuable document.

Senator MOORE —Was there any particular gap in it that you would like to put on record?

Mr Tager —Absolutely. The indication in the explanatory memorandum is that these emergency provisions relate solely to medical emergencies such as bird flu.

Senator MOORE —Yes, it does say that.

Mr Tager —As we have said, from the current reading of the act, you could not possibly see that as being limited to that kind of emergency.

Senator MOORE —Did I hear you correctly when you said that was the impression in the review consultations and that statement was made?

Mr Tager —Yes. The explanatory memorandum downplayed the significance of all of the provisions by simply saying that these were administrative changes that were made as a result of the review. There is little doubt that the potential scope of part 5 is neither administrative nor minor; it is actually really large and it potentially puts this act in a completely different area in terms of its capacity to release GMOs into the environment contrary to either state or individual wishes.

Senator SIEWERT —In relation to part 5A, let us say that we are in a drought, like the one we are in at the moment, and various elements of industry put forward a proposal which says, ‘Okay, we need to release some genetically modified plants into the environment to start dealing with the drought.’ My understanding of your interpretation of the amendment is that it would enable that to happen. A situation such as a drought could be deemed an emergency and drought tolerant GMOs could then be released. Is that a correct understanding of your interpretation of part 5A?

Mr Tager —It is not actually an emergency that is needed, though. It is simply advice that is taken by the minister, who needs to be satisfied as to its correctness, that there is an imminent threat of a kind mentioned. This is referred to in subparagraph (3). That is not a limiting clause because it includes the possibility of drought. Yes, they could say that there is an imminent threat related to drought and agricultural production in a particular area, potentially even on a particular farm as far as we can tell from the provisions, and it would allow the minister, if the minister were satisfied that this was an imminent threat, to require the planting of that GMO.

Senator SIEWERT —So, in the future, if a minister—and I am not reflecting on any current ministers—decided that they were frustrated because of the extensive testing and consultation periods et cetera required under the current act, they could use the proposed provision to override them to start getting GMOs into the agricultural system? Is that what you are afraid of?

Mr Tager —Absolutely.

Senator SIEWERT —I notice that you do not specifically make recommendations in your submission; you mainly talk about your concerns. Would you suggest that, if this part is about emergency medical situations in particular, the definition of an emergency would need to be much more specifically defined to say that it is actually about medical emergencies?

Ms Sales —That is right. Each emergency needs to be specifically defined or that whole part should be struck out, because we think it is beyond the objects of the act as it stands.

Senator SIEWERT —I have two other questions. One relates to section 35A, which talks about strict liability. What you are concerned about there is that, if an emergency were declared and these organisms were released, people would be required to plant them.

Ms Sales —Yes. Certainly under the provisions of the act as it currently stands, it could be interpreted to mean that.

Senator SIEWERT —If I understand your submission and the Gene Ethics submission, you do not believe that this is accurately reflecting the outcomes of the review of the act. What we are being told is that this is actually implementing some of the reviews of the act and that—

Mr Tager —The way it reads is that the Office of the Gene Technology Regulator noted that they did not have emergency provisions. They use the example of, I believe, bird flu. I think that the notion of emergencies is absolutely correct but that these provisions have it the wrong way around. It should be dealing with emergencies associated with release of GMOs that are not approved and are potentially or actually dangerous—in other words, an imminent threat themselves. This is asking the minister, via either the regulator or another adviser, to declare that a non-GMO threat exists, and this is where we think it is beyond the ambit of the act and that the Office of the Gene Technology Regulator or other advisers to the minister simply bypass the assessment provisions. It seems well beyond what was in the review document and what the regulator pointed out in her submission.

Senator SIEWERT —Thank you.

Ms Sales —The regulator in her submission pointed out that she was unable to fast-track an approval in an emergency. She specifically spoke about genetically modified cholera vaccine for release into the environment in conjunction with the relevant approval from the TGA. Obviously part 5A goes well beyond that limited scope. We do not think it adequately reflects the findings of the review.

Senator ADAMS —I have a question on your concern about the proposed merger of the Gene Technology Community Consultative Committee and the Gene Technology Ethics Committee. Would you like to elaborate on that for me?

Ms Sales —Basically, one of the recommendations that we are concerned about relates to where we think there is already limited scope for public participation in the act and in the regulation of GMOs generally. That just removes another opportunity for the public to feed into the process. There have been concerns raised about the effectiveness of these committees and we think that is an issue that needs to be looked at. Certainly the process as it stands needs to be reviewed. We think that the ineffectiveness of the committees is not an argument for scrapping them altogether. We think they need to be strengthened and made more effective.

Mr Tager —There has been real concern within those committees that the regulator has relied unduly on technical advice to the exclusion of ethical and community advice. Rather than responding to ineffectual committees by either merging them or abolishing them, it would seem that it would be far more valuable to strengthen the kind of community and ethical input that goes into decisions that are being made. There is currently very little advice being given by those committees and even less of that advice being taken in the decisions that have been made.

Senator ADAMS —I would think that, by combining them and having the same information coming through, it would be a lot easier to cope with than having two individual committees.

Mr Tager —That is actually limiting. One is confusing two very different roles. An ethics committee is one role that relates to a very specific part of the assessment of GMOs and community input is another. I also think that, if you are going to combine them, you need to change the kinds of powers and roles that they have so that they can become effectual. I cannot see that there is any rationale for combining them in the current circumstances or anything in the combining of them that would lead to them being more effective.

Senator ADAMS —I would think that by having both committees represented you would be able to argue that out rather than coming back to two separate committees. You would have members from both sides being able to come to a conclusion and taking that forward jointly rather than having one on each side and trying to come to some consensus.

Mr Tager —I would agree with that if these were not two marginalised committees already. I would suggest that a merger that should perhaps take place is to put the community committee in with the technological committee and the advice that is given there. You would perhaps then see very different kinds of results and recommendations coming out. I think at the moment combining two ineffectual committees is just creating one ineffectual committee and nothing more.

CHAIR —Thank you very much for your evidence this afternoon. We appreciate the difficulties of giving us evidence on the telephone. We appreciate the time you spent with us this afternoon and the submission which Greenpeace has made to the committee.

Mr Tager —Thanks for your time.

[2.11 pm]