Bills debated



HON LYNN MacLAREN (South Metropolitan) [3.52 pm]: I rise to provide a contribution to the second reading debate on the Gene Technology (Western Australia) Bill. I very much appreciate the debate thus far, which has raised the complicated issue of state sovereignty and whether we should be active in this space of controlling gene technology. As has Hon Brian Ellis, I want to express my appreciation to the Standing Committee on Uniform Legislation and Statutes Review for its very succinct report, which outlines the history of how we have regulated gene technology in Australia. It also provides some very useful recommendations for the debate before us today. I was working for Hon Giz Watson when we looked at the Gene Technology Regulator at a national level, I think, way back in 2003. At that time, there was quite a comprehensive public submission period and there were national education tours on it; it was a highly controversial subject throughout Australia. As such, we were invited to comment on it. I can recall filling up an archive box with different material on it. At that time, we were looking at not only genetically modified organisms in agriculture but also other biotechnology. I assisted in providing information to Hon Giz Watson at that time about how the Greens (WA) might respond to the suggestion for legislation at a national level. As members will be well aware, we also considered whether Western Australia would be open to growing genetically modified crops. That matter came up almost at the same time as a debate, and a committee of this house undertook a very thorough investigation and made recommendations in that regard. That is why we now have the Genetically Modified Crops Free Areas Act, which put in place a mechanism for to us to further control genetic material in Western Australia, quite apart from and on top of the commonwealth legislation.

I support the committee’s referrals; they point out that we need to hear from the minister about certain details before we support the legislation holus-bolus. Therefore, it is difficult at this point of the debate to say whether I will support a third reading of this bill. But at this stage I can say that, on the face of it and from my reading of the stakeholder submissions and certainly from the briefing provided to me, this might well be a good way forward in regulating gene technology. I note that, as a state, for some reason we have chosen to allow genetically modified canola to be grown in WA, with the GMO crops free areas act in place. Under this current regime, we have been able to exert some state control over whether we use that genetically modified technology in Western Australia. I note that, similarly, the states of Tasmania and South Australia have been able to keep their states GMO free, even though they have no gene technology act and they use the commonwealth system. They allow the commonwealth regulator to determine whether a genetically modified organism should be given approval in their state. Therefore, I find it hard to understand the argument that, should we approve this bill, we will relinquish the power and authority to do that. It appears that other states have managed to exert even greater power in controlling genetically modified crops and they are under the commonwealth regulator.

Hon Adele Farina interjected.

Hon LYNN MacLAREN: Hon Adele Farina raises the precise question I have, which is that those states have been able to exert power, and I would like our state to be able to do that. I would like the minister to address how we can continue to assert our authority over the growing of genetically modified crops in Western Australia should we adopt this legislation before us. Should we, in fact, support the Gene Technology (Western Australia) Bill? We have a conundrum; we have a debate about whether we will have that power. I am hearing both sides of that debate but without the minister’s response to the report or the second reading debate, which we cannot have until after we conclude this debate, it is hard for me to be completely confident that we can go down the road in Western Australia that I would like to go down. I am inclined to support this legislation, however I have very serious concerns about whether we are going to be able to continue to control genetically modified organisms. I note with interest that many stakeholders were consulted. I believe the committee wrote to about 16 different stakeholders and received 12 submissions. I have had a good look at many of those submissions. I must say, I have not been able to read all of them, but one of the experts, who I have constantly referred to in relation to genetically modified regulation, is Bob Phelps of Gene Ethics. Based in Victoria, Gene Ethics is well aware of all the regulatory instruments around Australia and has been advocating GM-free agriculture for some time, and I note that the very short submission from Gene Ethics helped me to figure out which direction to go as far as this bill goes. Just briefly, the executive director of Gene Ethics has put on the record through his submission that in its view —

              The laws of the Commonwealth and all states and territories, combined, provide for the administration of the national regulatory system for notification, assessment, licensing and monitoring of all dealings with genetic manipulation (GM) techniques and their                 products.

He notes, and I agree with this, that from a Greens perspective —

             We have many problems and disputes with the Regulator over the assessment processes used and licences issued. However, we will not argue our case for detailed changes here.

I brought up in the briefing that, indeed, the Greens would continue at a national level and at a commonwealth level to argue for improved assessment procedures. One of the concerns that I think farmers should have in Western Australia is that the assessment procedures at a commonwealth level should look at the health and the environment and that it does not have that opportunity to look at economics and industry preparedness, which are two issues that were raised by Julie Newman in her submission to the committee. If the commonwealth is failing in some of its role as assessor, it is beholden on the state of Western Australia to let it know, and to try to improve those assessment procedures for the benefit of Western Australian farmers. Bob Phelps goes on to state —

What we seek to ensure through the new WA Act is that the state (with other states and territories) plays an enhanced role in the Legislative and Governance Forum on Gene Technology (the Forum). All state parties should commit to improve their engagement through the Forum, with regular meetings to ensure the national regulatory system functions optimally and is more responsive to the public. I would ask the Minister for Agriculture and Food to provide that assurance to us and provide a bit more information about how Western Australia will be participating in the forum, and whether indeed there is an opportunity for WAFarmers to express their views to the minister and vice versa so that we can feel engaged in that national system if this bill does pass, as we think it might. Bob Phelps continues —

The proposed Bill should facilitate the Forum’s decisions, with full respect for the rights and responsibilities of all parties to play their assigned roles. In particular, nothing should diminish the rights of States and Territories to regulate GMOs for marketing purposes, by establishing GM and GMfree Zones. This power is mandated under the statutory Gene Technology (Recognition of Designated Areas) Principle 2003, derived from Section 21 of the Commonwealth Act and this should not change. I mentioned in the beginning of my speech that South Australia and Tasmania are two of those states that have managed under section 21 of the commonwealth act to maintain GM-free states. He continues —

The Bill must not create any opportunity for the uniformity of the State and Commonwealth Acts to necessitate a uniformity of action among the jurisdictions. For instance, there has been much pressure on South Australia and Tasmania to forego their GM-free Zones because others have permitted GM canola to be grown. But we recall that it was the Victorian and NSW governments in 2008, then WA in 2010, which unilaterally broke the GM-free consensus. The GM-free consensus had prevailed for five years from 2003, when GM herbicide tolerant canola licences were granted to Monsanto and Bayer, until 2008 when Roundup Ready canola was exempt from the state commercial crop GM bans in NSW and Victoria. SA, the ACT, NT and Tasmania must retain the right to remain GM-free.

Another concern is that the new Act not weaken or diminish the powers and responsibilities conferred by the Western Australian GM Crops Free Areas Act (2003) which is a valuable adjunct to existing legislation. It has served the state well and its retention was recommended by the 2009 review. To conclude, Bob Phelps states —

We also urge the WA state government to be the first to enact Farmer Protection Laws, to create a fund from levies on the sale of GM seed. The fund so created would be used to automatically compensate any landholders who may suffer economic loss or harm from GM contamination. It is important that the GM industry pays its way and protects the majority of farmers who remain GM-free and earn a premium for their GM-free canola. The state must ensure there is nothing in the proposed Gene Technology (Western Australia) Act that would prevent it from passing a Farmer Protection Act. And that is what we are particularly aware of today, as Hon Darren West and Hon Ken Travers have mentioned; Steve Marsh is fighting a legal case, even as we speak, because of the lack of farmer protection in Western Australia. I also note that Senator Rachel Siewert has put on the agenda that she will pursue that agenda at a national level to protect farmers from contamination and from market loss if they grow a conventional or organic crop and are contaminated by GM. Bob Phelps clearly states —

Through the Forum, the states should be empowered to monitor and critique the level of public satisfaction with the performance of the Federal Regulatory system, and to propose amendments.

Bob Phelps clearly was not opposed to this act before us; he is making the point that other states have managed to use the commonwealth system of gene technology regulation to great success and they have been able to retain GM-free status when farmers and their citizens have chosen that. I took that to be very significant and wise advice and I looked further into what the committee had done.

The committee also heard from the Western Australian Farmers Federation. WAFarmers is obviously on the front line here, at least to the degree of gene technology related to agriculture. Its submission—

WAFarmers, too, is not concerned about using the commonwealth regulator—states —

A Commonwealth Regulator, including the authorities and officers, allows a uniform approach to Gene Technology regulation. The functions and powers described in part 3 and 4, provides Commonwealth authorities with the ability to prosecute violations against the state Act, as if they were against the Commonwealth Act. The Western Australian Government’s capacity to regulate violations to the Gene Technology (Western Australia) Act 2014 is no longer valid, unless directed by the Commonwealth Regulator.

However, WAFarmers support this legislation before us, and noted that — … WAFarmers is the state’s largest and most influential rural lobby and service organisation. WAFarmers represents more than 4,000 Western Australian farmers from primary industries, with the majority being grain growers. Collectively our members are major contributors to the $5.5 billion gross value of production that agriculture in its various forms contributes annually to the Western Australian economy.

I would just draw to the minister’s attention that that $5.5 billion gross value of production includes mostly conventional farmers and growers, and very many organic growers, so we are not just talking about GM growers in their sense. The Western Australian Farmers Federation has to represent that diversity of farmers and when it is looking at these acts, it has to be able to represent all of its growers and we hope that it continues to do that when we come to the proposed repeal of the Genetically Modified Crops Free Areas Act 2003. Unfortunately, at this stage, WAFarmers seems to be supporting that repeal. I hope that in time WAFarmers comes to see the merits of having some GM-free crop areas. The last submission I want to draw attention to today is from Curtin University. Curtin University is in my electorate, and I am also the Greens spokesperson on education, so I wanted to have a look at the biotechnology industry and see whether it thought this was a good way forward. It is clear that Curtin University’s submission is in favour of going to the commonwealth system. On behalf of Curtin’s institutional biosafety committee, Dr Bernadette Bradley made a submission to the committee stating that she heartily supported this legislation. Both the farmers and the biotech industry support using the commonwealth legislation, and even the nation’s highest profile advocate for GM-free zones supports this legislation.

Hon Jim Chown: Who is that?

Hon LYNN MacLAREN: Bob Phelps, from Gene Ethics, whom I have just quoted at length, if the member would like to review my speech in Hansard. The quote is also available in the committee report, if the member wants to have a look.

The minister can see my reasons for wanting to hear more from him, because today we have heard quite considerable debate about whether Western Australia should relinquish its sovereignty on this matter. It falls to the minister to assure the house that the concerns raised thus far by the opposition do not come to fruition, and that all Western Australians are governed wisely, as is our charge, if we were to pursue the legislation before us. To that end, I had a quick look at Bob Phelps’ further submission, sent to me when this bill was put on the notice paper. He reminded me that the consequential repeals and amendments in this legislation repeal the Gene Technology Act 2006 and the Gene Technology Regulations 2007, and amend the Agriculture and Veterinary Chemicals Act 1995. The point is that the Genetically Modified Crops Free Areas Act 2003 is not touched upon by the legislation we are considering today. It is appropriate for us to raise those issues, because they are topical and controversial, and we would not want to pass any legislation today that would inhibit our ability to ban genetically modified crops, for example. Even the Shire of Williams, for example, may be particularly concerned about that today. We do not want to inhibit our future ability to consider the science and ban GM crops. It appears to me that the bill before the house today does not do that. It seems to be a cost-saving measure. It seems to be an efficiency measure that the government is putting forward to concentrate all of our wisdom and innovation in the commonwealth Gene Technology Regulator. I hope that we are able to improve the commonwealth regulator by letting go of this and providing more scrutiny on that system, perhaps looking at the economic consequences of going down the genetic technology road.

Further to the debate that has been raised today about sovereignty, I note that a submission from the Western Australian Department of Agriculture and Food included an attachment from the corporate strategy and operations division. This attachment goes some way towards solving some of the problems that have been raised today. It states —

Enacting the Gene Technology (Western Australia) Act (the WA Act) does not, in a legal or constitutional sense, restrict the legislative capacity of the WA Parliament.

While section 6 of the WA Act will apply the Gene Technology Laws of the Commonwealth in a running form, there will be no legal or constitutional restriction on the WA Parliament’s capacity to make laws with respect to the regulation of dealings in GMOs arising from the enactment of the WA Act in that form. To me, reading carefully and slowly, that means that we are still empowered to control GM crops. The document, under the heading “Pressure for a referral of power”, also states — In many instances the impetus for legislation that is uniform across the Australian jurisdictions comes from the regulated industry. In a number of cases, the enactment of mirror or stand-alone legislation by WA has not worked. The WA legislation has become out-of-date, causing real practical problems for regulators and the regulated industry. The approach in the Bill avoids these problems.

From the information that I have been able to glean from the very good work of the Standing Committee on Uniform Legislation and Statutes Review, it would seem that there are no barriers to supporting this bill today. It remains to be brought home by the minister’s statement in his response to the second reading whether he supports the recommendations of the committee, provides us with the information that is needed and supports the review of the legislation.

Authorised by Lynn MacLaren © 2018

Hon Lynn MacLaren MLC - Member for South Metropolitan Region (2009-2017)
Legislative Council, Parliament of Western Australia