Submission of the Government of Australian Government

Responding for request to information on national, regional and international measures and agreements in the field of liability and redress for damage resulting from transboundary movements of LMOs

Australian Legislation dealing with liability and genetically modified organisms

New legislation to regulate dealings with genetically modified organisms (GMOs) in Australia came into force on 21 June 2001, through the Gene Technology Act.  The new scheme does six key things. It:

1. prohibits dealings with LMOs (eg. import, transport, research, manufacture, production, and propagation) in Australia,  unless in accordance with the legislation.  For example, all dealings which involve the intentional release of a LMO into the environment must be licensed;
2. establishes a process for assessing the risks to human health and the environment associated with dealings with LMOs, including opportunities for extensive public input;
3. establishes a statutory officer, the Gene Technology Regulator (the Regulator), to administer the legislation and make decisions under the legislation (including the issuing of licences);
4. establishes a scientific advisory committee, an ethics committee and a community consultative committee to provide advice to the Regulator;
5. provides for monitoring and enforcement of the legislation; and
6. creates a centralised, publicly available database of all LMOs and GM products approved in Australia (the Record of GMO and GM product dealings).

In developing the new scheme, a number of options were put forward for addressing the issue of liability.  However, it was decided not to treat liability issues in this area any differently than the way they were treated in other related areas (such as contamination caused by pesticide spray drift, or flooding due to the breach of a dam).  It was felt that this was preferable to enacting liability laws specific to gene technology.

As such, there are common law actions available for third parties in order to recover losses from damage caused by the transboundary movement of LMOs.  In summary, a third party may have an action in negligence, trespass or nuisance.  In addition, most Australian States and Territories have environment protection legislation in place which establishes a general duty not to undertake an activity that pollutes or might pollute the environment, or which causes, or is likely to cause, environmental harm.  These pieces of legislation specifically allow persons to apply to the relevant court of tribunal for compensation. 

However, a small number of mechanisms have been incorporated into the Gene Technology Act 2000 to ensure compliance with conditions placed on a licence for dealing with a LMOs, and to ensure (where necessary) adequate compensation is available where the legislation is breached:

• Strict liability offences for dealing with a LMO in contravention of the Gene Technology Act 2000, or in breach of licence conditions have been included in the legislation.  These offences carry a maximum penalty of A$ 22,000 in the case of an individual and A$ 110,000 in the case of a corporation.
• Offences for dealing with a LMO in contravention of the Gene Technology Act 2000, or in breach of licence conditions have also been included, which carry a maximum penalty of A$ 220,000 and/or 5 years imprisonment for an individual, or A$ 1.1 million in the case of a corporation.
• Extensive monitoring and investigation powers have been given to inspectors under the legislation, including powers of search and seizure.
• Where the Regulator incurs costs as a result of taking steps in order to avoid imminent risk of death, serious illness, serious injury or serious damage to the environment, the person who created the risk is liable for those costs.
• The Regulator may impose a licence condition on a person dealing with a LMO requiring them to be adequately insured against any loss, damage or injury that may be caused to human health, property or the environment by the licensed dealing.

In addition, Australia’s Quarantine Act 1908 also imposes possible fines and imprisonment terms on the importation of LMOs into Australia without an import permit.