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

CHAIR —Welcome. I think that information on parliamentary privilege and the protection of witnesses has been provided to you. We have submissions from Monsanto, Bayer CropScience and also Dow AgroSciences and CropLife. I understand that you gentlemen are representing both your own organisations and those other two organisations. Is that correct?

Mr Khoo —Yes, that is correct.

CHAIR —Does one of you represent one other organisation or do you both represent both organisations, as it were?

Mr Khoo —We represent both CropLife and our respective organisations.

CHAIR —That sounds good. Thank you very much. We have the submissions from all four of those organisations. We are going to ask you questions about those submissions, but would you like to start with a short opening statement to summarise the position of those four organisations?

Mr Penna —Sure. Thank you for the opportunity of addressing the committee this afternoon. I just point out to clarify our discussions that we each represent our own companies, who are providers of gene technology to Australian farmers, but we also represent CropLife who represent all the developers, registrants, manufacturers and formulators of plant site solutions for use in agriculture and the management of pests in other settings. As the industry’s peak representative body, CropLife leads industry efforts to ensure a science based, efficient and effective regulatory and policy environment to support innovation and encourage high-quality products. On that basis, we are representing both ourselves and CropLife.

We note that the Gene Technology Act has been in operation for nearly six years. It is certainly one of the most stringent regulatory systems operating on a national basis in the world for assessing the safety of bio-tech crops, from both a human and an environmental perspective. We also note that the act has undergone extensive review through several rounds of public consultation, including written submissions, public hearings and meetings that the review panel conducted with key stakeholders to explore specific issues in much more detail. As such, with this extensive consultation, we largely support the adoption of the amendment bill intact. However, there are two areas in which we have specific concerns. The first is in relation to the amalgamation of the two committees. We support the amalgamation as proposed. However, we consider that it may be appropriate to have more criteria around the persons that may be selected for those committees. Specifically, to ensure the committees remain effective in their operation and balanced in the views they represent, we think that the participation of individuals and organisations that are actively campaigning for or against gene technology should not be eligible for inclusion on that committee, simply because their views tend to polarise the committee and the advice given to the regulator and, indeed, may appear to be predetermined before such discussions. Therefore, we consider that those campaigning for or against the technology hamper the effectiveness of those committees.

The second point that we have raised in our submissions relates to section 3—in particular the inclusion of a type of dealing for limited and controlled release. We are supportive of inclusion of this nature of dealing in the act; however, we do have concerns around the definitions around the purpose of those dealings. Specifically, if you go back to the objectives of the act—that is, namely, to protect the health and safety of humans and the environment—we do not see a need to specify the purpose of limited and controlled release dealings. We see that the emphasis should be on the limits and controls placed on those dealings, not the purpose of the dealings. Indeed, if you look at most of the licences for such dealings that have been issued by the regulator, they very much relate to the controls—what happens during the growing of those dealings and during harvest, in relation to genetically modified crops during and after harvest. What happens and why it happens is immaterial to the protection of human health and the environment. Indeed, if the regulator identifies specific concerns in relation to the purpose of the dealing, it is within his or her capacity to implement further controls to protect human health and the environment. That concludes our statement. Generally, we are largely supportive of the proposed amendments to the act.

CHAIR —Thank you, Mr Penna. Dr Khoo, do you wish to make an opening statement as well?

Mr Khoo —Just very simply to say that I concur with what Mr David Penna has said. Our position is very much a similar position and I would like to support what he said about the inclusion of the word ‘experiments’ in section 50A. We do not think it is necessary to have the definition of ‘experiment’s. We think that the word ‘experiments’ should be replaced with something like ‘dealings’ or ‘contained dealings’. The important point is that dealings under this section should be contained and limited as opposed to commercial releases. As long as it is contained and small scale, the purpose for which those trials are conducted is not really relevant. The relevant point is the risk assessment carried out on it.

CHAIR —Thank you both for those statements.

Senator MOORE —I only have two questions. The first one is: Mr Penna, in your submission and your statement you were clear about the make-up of the new committee, whatever it is going to be called, having people who have not got predetermined ideas. I am worried how you are ever going to find a committee that would meet those requirements. The other statements and submissions that we had along a similar vein just said that they did not want people who were opposed. Is there any reason for that variation, or have all the groups agreed that it should not be either in favour or opposed?

Mr Khoo —Could I answer that?

Senator MOORE —I hope so, Dr Khoo.

Mr Khoo —The submission from Bayer CropScience said that we did not want people opposed to the technology or actively campaigning against the technology I think is the words that were used.

Senator MOORE —Yes.

Mr Khoo —We are prepared to accept the industry view that we should not have people polarised on either side of the fence included on committees.

Senator MOORE —Just on that basis I would like to hear from both of you, how would you select for that? I know it is not an industry decision it is a ministerial one. How would you actually ensure that people did not have predetermined ideas?

Mr Khoo —It is not so much that people do not have predetermined ideas. I think everyone is entitled to an opinion for or against. It is just those people actively carrying out a campaign, for example, raising funds for it, or carrying out demonstrations in a public manner, I think those people, because they appear to be ideologically opposed, maybe should not be included on those committees.

Senator MOORE —Would people have to make some public statement that was their position to be eligible under the proposal that you put forward?

Mr Khoo —We do not see that disqualifies them as long as they are not engaged in actively campaigning against the technology. That is an ideological point of view.

Senator MOORE —Do you have the same position, Mr Penna?

Mr Penna —Yes, if you look at the public record, media and other varieties of the public record, it is easy to see that organisations such as CropLife that I am representing today are out there campaigning actively for the technology, and it is also easy to ascertain which organisations and people are actively campaigning against the technology. In that way it should be relatively straightforward to identify those organisations.

Senator MOORE —I would like to get some more clarification—once again it seemed to be a similar submission around the issue of the definition of ‘small processes’ and how it could be seen. Could you restate for me exactly why you do not like to have the word ‘experiment’ or the background to experiment public if it is all open and transparent?

Mr Penna —Sure, there is a range of reasons why we do trials under limited and contained releases. One of those is really doing experiments to gather more data to support risk assessments, and indeed to identify whether there are risks or not to human health or the environment. There are other reasons why we do undertake such trials or such work in containment and one of those is, for example, increasing seed, which strictly is not an experiment, but you do increase seed for several reasons, one of which may be to increase seed to give you seed to do more experiments in the future.

Senator MOORE —Or dealings.

Mr Penna —Yes, indeed, to do more research at different locations, at a wide variety of locations, at a greater number of locations. Another reason is to prepare ultimately for the eventual commercialisation of the technologies. I can cite examples where, when we are ready for commercialising a product and have the necessary approvals in place, the demand for our technology far exceeds the capability to produce that technology. Even though we have already produced enough seed to meet a limited demand, the seed companies involved have had to resort to ballots to allocate the limited quantity of seed they have available. That seed was produced under contained licensed conditions and provided enough to meet a quarter of the demand. To eliminate the ability to do that under contained licensed conditions, you would be lucky to meet, I would hazard a guess, one per cent of the demand in that first commercial application of the crop.

Senator MOORE —Is it a form of commercial-in-confidence? I still cannot get my head around it, for the sake of the legislation, because that is a very reasonable explanation you have given us in terms of, in a contained area, what you would be doing under licence with the licence you have.

Senator SIEWERT —They are producing a crop that is not yet ready for commercial release. They are building up seed in a seed bank for a crop where all that information that Greenpeace has just highlighted, which you want for assessment, is no longer going to be made available. They want to be able to produce that without those safeguards.

Senator MOORE —So you agree with the evidence given by Senator Siewert?

Mr Penna —No. We are saying that we still want to produce it with the safeguards and the containment measures.

Senator MOORE —Which would be known—

Senator SIEWERT —But the community does not know about it because section 49 is being repealed.

Senator MOORE —You have to apply for a licence, which you do. To get that licence you would have to be clear about what you were doing. You just do not want to have certain terminology used. You would still have exchange with the regulator about what you were doing.

Mr Penna —All we are advocating is basically the status quo in terms of doing work under licences until you have enough data to prove that it is safe to proceed to the next step. From what we understand, the proposal that is before the committee at the moment would exclude any dealings that are not of an experimental nature. I will give specific examples. We produced seed under the same containment conditions as we were doing research in. That then went into storage that met the regulator’s guidelines for storage of dealings that had not had commercial release. There were quite stringent storage conditions there. But whenever it was—I think it was six months later—that the regulator made the determination that the product was safe, we were able to satisfy a grower demand for that product. We are not arguing for conducting that work without the conditions; we are arguing for exactly the same conditions—limited and controlled release. All we want is to have the ability to do whatever we are allowed to do within the confines of the four walls of that trial.

Senator MOORE —How does this proposal stop you doing that?

Mr Khoo —The word ‘experiment’ is used. We could not carry out work under that section of the act, even if it is small scale and contained dealings, if it did not fit the definition of ‘experiments’. As we said, if we do seed increases, they do not fall into the category of experiments.

Senator MOORE —That would be seen as scientific operation rather than an experiment. You are not experimenting.

Mr Khoo —It could be pre-commercial.

Senator SIEWERT —But you said yourself that you are preparing commercial quantities of seed.

Mr Penna —Absolutely.

Senator SIEWERT —So that is in fact not a trial. It is about commercialisation of a GMO that, while you are preparing it, may not be approved by the regulator.

Mr Penna —And if it is not approved then we have to dispose of it in a manner prescribed by the regulator.

Senator SIEWERT —In the meantime, you have been building up commercial tanks of seed.

Mr Penna —Absolutely. If we are building up seed—

Senator SIEWERT —That is what it is about.

Mr Penna —We and our seed company partners might build up a quantity of seed. If it gets to the point where the regulator decides it is not appropriate to release it commercially, we then have to go to great expense and dispose of that seed in a manner that is consistent with the regulator’s requirements. At the moment, for example, in our contained cotton licences we have to bury it under one metre of soil, incinerate it or take whatever other options there are. If the regulator chooses not to allow a wider release of that technology then we have to comply with the conditions of the licence, and they are the conditions of the licence imposed when we were doing that original work.

Senator MOORE —Was this concern raised with the regulator when they were developing the changed guidelines?

Mr Penna —I guess we were not fully aware of the implications until we saw the final writing in the amendment bill.

Senator MOORE —In effect it changes something you were already doing and you were unaware of that during the consultations.

Mr Penna —That is correct.

Senator SIEWERT —I want to go back to the issue around who is represented on the committee. Who do you foresee would be on the committee? Who would be left?

Mr Khoo —There are lots of experts in universities and in CSIRO, for example.

Senator SIEWERT —What about the community? This is a community consultation committee. Who from the community, who is not engaged in GMO debate and who takes an interest, would you suggest becomes involved?

Mr Khoo —We are not excluding those people, as I said. Everyone will have opinions. We are not excluding them. It is just that there are people actively campaigning or who belong to an organisation that actively campaigns against the technology or for the technology. For example, we have an organisation like that called the Producers Forum, who want to see GM canola introduced, so they are actively campaigning for it.

Senator SIEWERT —Who do you suggest from the community would be involved? You know community organisations. I know you do because you engage with them. Who would you suggest from the community, with enough information to make informed input into this debate, would be involved?

Mr Khoo —I cannot give you an answer because I do not have knowledge about who in the community has sufficient knowledge.

Mr Penna —I agree; I do not have that information. There is a whole range of farmers, academics, researchers and people in local government, for example, that could be representative of the community that may have that information, but I cannot specifically today point to who that might be.

Senator SIEWERT —Do you not acknowledge that people like Gene Ethics and Greenpeace have played an active role in the debate—in trying to ensure that there are some safeguards and that there has been community debate to date?

Mr Penna —Regardless of how the committee is formed, we would see that they would still have an active role. There are many avenues, through the media and through the consultation processes of the regulator, that would continue to involve those groups—and, indeed, groups such as our own, and the Producers Forum, as an example mentioned by my colleague. So there still remains ample opportunity for those groups to be involved in the debate, and indeed processes such as this are very important to that as well.

Senator MOORE —Has it been so dysfunctional? This group of submissions has particularly raised this issue. It is the only place it has been raised, so there must be a reason. Have you, as someone involved in the industry, felt that it has been dysfunctional in the way it has been operating?

Mr Khoo —We have had some experience over the past few years where that has happened. In New South Wales, for example, there is a ministerial advisory committee and there have been people on that committee who have not respected confidentiality and who have released confidential information.

Senator MOORE —The state ministerial element of the national group?

Mr Khoo —This is a committee set up by the New South Wales minister for agriculture to advise him on GM crops.

Senator SIEWERT —So you think the better way to handle community debate is to have them outside rather than in and being able to sit down and discuss things around a table? I am quite astounded at your proposal—I have to put it on the table—that an acceptable way to debate things in the 21st century is to have people who have declared an interest outside the room. You know very well that those who have knowledge of GMOs are more likely to be included around the table from the academic perspective than people with a community perspective. You will not be able to find people who are not engaged in the debate who will be knowledgeable enough to sit around the table with you.

Mr Khoo —We would not like to comment on our views of some of these organisations, except perhaps to say that we think their views are sometimes are very extreme and not helpful. That is all that we would say about them.

Mr Penna —It is admirable to get people in a room and around a table to debate these issues; there is no questioning that and that is the cornerstone of our community. The concern is that, where you get a polarisation of views on either side of the debate in a committee to provide advice, for example, to the regulator, where you will never get both those sides of the debate to agree one way or the other, that could hamper and indeed may hamper in the future the advice that that committee gives, when the committee will or could never agree on particular issues.

Senator SIEWERT —You have obviously had a different experience from my experience of sitting around many tables. Moving on to the emergency provisions—obviously, you have heard the evidence that has been given this afternoon about the emergency dealings provisions. Have you looked into those or do you have any comment on those?

Mr Penna —I have not personally looked into them in a great deal of detail. Our position is that we are neither for nor against those particular provisions. Really, that is up to the community, the government and the regulator, as they see fit. One comment that I think may need to be made is that there has been a lot of talk this afternoon about enacting emergency provisions to, for example, overcome problems with the drought. Certainly, if you look at the time scales involved to get plant varieties into the ground that are robust, there is very little scope for that to be used. If you look at the breeding time frames and, as the representatives of the GRDC mentioned, backcrossing and bulking time frames, it is difficult to see how that could be used in a genetically modified crop situation. So our view is very much that we are neither for nor against them and we believe that is up to others to debate.

Mr Khoo —Speaking for Bayer CropScience, I would say that, yes, we welcome those provisions. There are safeguards, and we do not think there is any fear that they would be used to override the current processes for approvals.

Senator SIEWERT —What is the basis for your comment that you do not think they would be used to override those processes?

Mr Khoo —Because the minister has to get advice from certain chief scientific officers. I think in an emergency you would really want some powers to be able to deal with any adverse outcomes.

Senator SIEWERT —We have been struggling to think of an emergency. Bearing in mind what Mr Penna has just said, other than the example of bird flu, we have been struggling to think of another emergency type scenario where you would need emergency regulations like this.

Mr Khoo —No, I cannot think of any practical situation today, but that is just my lack of knowledge.

Senator SIEWERT —The point is that people can think of reasons not to have these provisions, but not many people can think of reasons to have them.

CHAIR —Just coming back to the question of consultation mechanisms, you might say that there are two possible models of community consultation about new proposals in, say, gene technology. One is the model of a sort of community jury where you get people without any predetermined position and perhaps without even any predetermined knowledge of an area and you give them all the available information—hopefully, as impartially as possible—and they give you a view that would appear to reflect what the ‘average citizen’ might think about a particular proposal. The other model is where you bring the relevant stakeholders around a table and you attempt to at least include them in a discussion about issues that affect areas that they are knowledgeable about and have a capacity to project some community voice about in that context.

The latter model is by far the more usual model for attempting consultation with the community. I assume that you feel that the former model is actually the better one where you do not have people with any particular motivation to be involved in these areas because they do not have any active role in those areas except perhaps as a scientist or something of that sort—but, with respect to the community consultation side of it, presumably they have no active involvement in areas of gene technology. Why do you feel that model would be somehow superior to the more usual one where you have the stakeholders around the table?

Mr Khoo —No, I do not think that is our point of view. We think that the act has provisions to consult with expert bodies and also provides the general community some input into the consultation process. We do value both kinds of consultation. It is not true to say that we prefer the kind where you consult people who have no prior knowledge.

CHAIR —Are you saying the body set up under section 108 ought not to consist of stakeholders—that is, people with a demonstrated interest in the area—because they will tend to be active either for or against particular gene technology proposals?

Mr Khoo —No, I guess the distinction is a subtle one. Say, for example, that you are consulting about a GM crop. You would, of course, consult agronomists or people involved in the supply chain.

CHAIR —You do that under section 108 of the bill. That is the section that you have recommended ought to be amended to exclude those who have campaigned for or against gene technology.

Mr Khoo —Yes.

CHAIR —That is obviously a key process. You effectively say that process should not include stakeholders.

Mr Khoo —No. It should not include people who actively campaign for or against the technology. We are not talking about people in related fields, for example.

CHAIR —So you can include people who work in related fields?

Mr Khoo —Yes, of course. You can include people who work in related fields and you can include people with stated opinions as long as they do not belong to some organisation which raises money and actively campaigns against the technology in an ideological way.

Mr Penna —Or for the technology.

CHAIR —That distinction is fairly hard to maintain. Organisations like, say, Greenpeace—and I do not want to put words into their mouth—could have a member who is well versed in this area resign from the organisation in order to qualify to be appointed. Let us face it, that would be easily sidestepped.

Mr Khoo —I accept that the distinction can be difficult.

CHAIR —I want to come back to your second point about experiments. I take your point that, with the controlled release of a GMO, the reason for the release is not as important as the circumstances of the release. Would it not also be true to say that a release is necessarily a risky exercise because it involves putting out into the community something that is not yet fully assessed and understood? That carries a risk. Should not the risk only be entertained where it is being done for the purpose of advancing scientific knowledge about the use or effect of that organism in the community? Does that not carry the notion of experimental research with it? Perhaps ‘experimental research’ is not the right expression, but would it not be only in those circumstances that you could justify taking the risk of releasing a GMO?

Mr Khoo —No. Currently, under the act, as long as you have the contained conditions, the purpose of the trials is not taken into consideration. That is my understanding. Under this new provision, I think the intention is to include those sorts of work that can be restricted and controlled with conditions. The crucial point is that they are well contained; the purpose is not really relevant. As David explained before, there are legitimate reasons why you would want to carry out some small-scale plantings which do not legitimately fall under the definition of ‘experiment’—for example, seed increases for a variety of reasons, including pre-commercial reasons.

Mr Penna —I want to go back to the point on risk. These dealings are perceived to have risk associated with them and that is the very reason why the regulator requires that certain controls and limits be placed on them. Indeed, I can point to situations where we have taken dealings purely for experimental purposes and limited the area and the number of locations. As more knowledge has been gained, we have made a second application to the regulator still to do work under contained and limited and controlled requirements but in a slightly larger area and in a slightly larger number of locations—but still not in an unrestricted commercial sense. So, as you gain knowledge, you can gain confidence, but that does not mean that you would want to release it on a commercial scale before you have the full set of questions answered by the regulator. If the committee wishes to refer to a specific instance of this I can refer to licence DIR035, which was initially issued, and licence DIR055, which was issued subsequently. Both were issued prior to the commercial licence, which was DIR059.

CHAIR —So you understand that the arrangements in the bill for controlled release are more restrictive than the present arrangements for controlled release?

Mr Penna —Only insofar as it restricts the specific purpose of these particular dealings.

CHAIR —So some of the releases that would now be possible under the legislation will not be possible because they cannot be constituted as experiments?

Mr Penna —That is correct.

Senator ADAMS —This is getting down to the practicalities of all of this. We heard that some of these experimental crops have been exported. I am a farmer. Can you step me through what happens when there is contamination when it goes to the bin? How are we going to deal with this if the neighbours are growing GM and we are not, or the other way round, and the trucks are carting it backwards and forwards? What is going to happen there with contamination?

Mr Penna —The very controls that the regulator puts in place on the dealings are designed to prevent that. I have the greatest knowledge of controls put in place for cotton trials that require, for example, a 20-metre pollen trap or pollen buffer to prevent pollen from transferring to neighbouring crops whilst the trial crop is being grown. When the trial is harvested, there is a requirement that it be harvested completely separately from any cotton that is used commercially. When the trial crop is ginned, it must be dealt with completely separately from any commercial crops. It is really the controls that the regulator puts in place to separate it from commerce that are critical to preventing that. That has worked successfully. There have been 24 licences for cotton field trials of that nature, and in a number of other crops, without any discernible impacts.

Senator ADAMS —We have heard stories from Canada about neighbours and cross-pollination and someone ending up with GM when they have not been growing it and all that sort of thing. How are we going to deal with that, because these are the issues that are going to come from community consultation?

Mr Penna —I guess it is important to distinguish between the dealings and the sorts of dealings that this legislation covers. I cannot state with any certainty about what is happening in Canada, but I think they would relate to dealings once the regulator has approved them commercially. I do not believe they relate to limited and controlled dealings. When the crop becomes commercial then our position is in many ways outside the scope of this particular review because this act pertains largely to human health and the environment and to the protection of the safety of human health and the environment. I am not here to comment on those issues, because how they can be managed is currently being considered by a range of jurisdictions around the country and by the industries involved. That is very much my position.

Mr Khoo —Senator Adams, if you would like information about what is happening in Canada, we can undertake to provide you with more information.

Senator ADAMS —That would be good, thank you.

Senator SIEWERT —We heard earlier from Mr Phelps about GM turning up around Mount Gambier—and I think you were here.

Mr Penna —That was about crops that had been designated as safe by the regulator and allowed commercial release. The contamination, for want of a better word, did not relate to dealings under the act but rather to matters under state jurisdiction.

Mr Khoo —On the contamination in Mount Gambier: there has been no contamination in Mount Gambier. We do trials in Mount Gambier, and they are all done under state legislation that has very strict containment conditions in it. There has been no instance of contamination in Mount Gambier. The so-called contamination refers to the finding of some GM canola in non-GM canola of the variety called Grace, and that happened a couple of years ago.

Senator SIEWERT —So why is that not contamination?

Mr Khoo —It was not in the Mount Gambier region.

Senator SIEWERT —I beg your pardon—it was in another region.

Mr Khoo —Yes, it was a different thing.

CHAIR —Thank you very much, Mr Penna and Mr Khoo, for your evidence this afternoon. Thank you for wearing so many hats at the one time in front of the committee.

[4.09 pm]