Gene Technology (GM Crop Moratorium) Act 2003

This Act is the Gene Technology (GM Crop Moratorium) Act 2003.

This Act commences on the date of assent, except as provided by subsection (2).

Schedule 2.1 and 2.3 commence on the commencement of Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002.

The object of this Act is to establish a regime to regulate—

the commercial cultivation of licensed GM food plants, and

the conduct of experiments on licensed GM food plants,

in New South Wales for marketing purposes.

In this Act—

approved GM food plant means a GM food plant approved for commercial cultivation under section 7A.

cultivate a plant, includes plant, tend, nurture or harvest the plant.

deal with, in relation to a crop or GM food plant, has a meaning that corresponds to deal with, in relation to a GMO, under the Gene Technology Act 2000 of the Commonwealth.

Department means Regional NSW.

director of a corporation means a person who is a director of the corporation within the meaning of the Corporations Act 2001 of the Commonwealth.

exemption order means an order in force under section 8.

exercise a function includes perform a duty.

Expert Committee means the New South Wales Expert Committee on Gene Technology established under section 13.

food plant has the meaning given by section 5.

function includes a power, authority or duty.

gene technology has the same meaning as in the Gene Technology Act 2000 of the Commonwealth.

GM food plant means a food plant that has been genetically modified, that is, a food plant that—

has been modified by gene technology, or

has inherited from another plant particular traits that occurred in that other plant because of gene technology.

GMO licence has the same meaning as it has in the Gene Technology Act 2000 of the Commonwealth.

inspector means an inspector appointed under section 22.

licensed GM food plant means a GM food plant in respect of which a GMO licence is in force authorising dealings with the GM food plant that are inherently necessary for commercial cultivation of the GM food plant.

non-GM food plant means a food plant that is not a GM food plant.

plant includes the seed or any part of a plant whether living or dead and whether attached to a plant or not.

relevant industry, in relation to a licensed GM food plant or class of licensed GM food plants, means an industry or sector of an industry dealing with or proposing to deal with the licensed GM food plant or class of licensed GM food plants.

Secretary means the Secretary of the Department.

Notes included in this Act do not form part of this Act.

For the purposes of this Act, a food plant is a species or variety of plant that the Minister is satisfied is, when grown in New South Wales, primarily grown to be used (whether or not after processing) as, or as an ingredient of, food for human consumption.

The cultivation in New South Wales of a licensed GM food plant is prohibited unless—

the GM food plant has been approved for commercial cultivation under section 7A, or

cultivation of the GM food plant is permitted by an exemption order under section 8.

A person who cultivates a plant that is a GM food plant in contravention of section 6 knowing that, or being reckless as to whether, the plant is a licensed GM food plant is guilty of an offence.

Maximum penalty—in the case of a corporation, 1,250 penalty units or, in any other case, 500 penalty units or imprisonment for 2 years, or both.

On application by a representative of a relevant industry the Minister may, by order published in the Gazette, declare that a specified licensed GM food plant, or class of licensed GM food plants, is approved for commercial cultivation in all or part of New South Wales.

The application must—

be made in writing, and

address the criteria specified in subsection (3), and

be accompanied by the fee (if any) prescribed by the regulations, and

be supported by documentation verifying the applicant’s status as a representative of the relevant industry concerned.

The Minister must not make a declaration under this section unless the Minister is satisfied that the relevant industry meets the following criteria—

the relevant industry has adequately identified the requirements demanded by key domestic and international markets for the GM food plant,

the relevant industry has identified the threshold levels for the accidental or unintended presence of GM traits in food plants that are acceptable in those key domestic and international markets,

the relevant industry has, or is capable of having, supply chain management processes in place that adequately address those requirements, including (if it is a market requirement that GM food plants and non-GM food plants be segregated) processes to segregate GM food plants and non-GM food plants,

any approvals or any other form of authorisation required by or under any law of the key domestic or international markets relating to the importation of GM food plants have been, or can be, obtained,

the relevant industry meets any other criteria prescribed by the regulations.

Before making a declaration under this section, the Minister must request the Expert Committee to provide advice (not later than 28 days after the request) in relation to whether or not—

the relevant industry meets the criteria referred to in subsection (3), and

the GM food plant is authorised or permitted to be cultivated in another State or a Territory under a law of that State or Territory,

and must take into account any advice provided by the Expert Committee before the end of that 28 day period (the initial request period).

The Minister must (subject to subsections (6) and (7)) determine the application for a declaration within 14 days after the end of the initial request period (the initial determination period).

At any time before the end of the initial determination period, the Minister may request the Expert Committee to provide, within 14 days (the further request period), further advice or information on the matters concerned.

The Minister must (irrespective of whether or not the Expert Committee has provided the further advice or information as requested) determine the application not later than 14 days after the end of the further request period.

Subsection (4) does not limit the factors that the Minister may take into account in deciding whether or not to make a declaration under subsection (1).

An order under this section in relation to a licensed GM food plant is automatically revoked if the GMO licence in respect of the GM food plant is suspended or cancelled by the Regulator under the Gene Technology Act 2000 of the Commonwealth.

An order under this section may be revoked by the Minister only if the Minister is satisfied, after consulting with and taking into account any advice of the Expert Committee, that the relevant industry concerned no longer meets one or more of the criteria referred to in subsection (3).

The Minister’s determination of, or failure or refusal to determine, an application or decision to revoke an order under this section may not be challenged, reviewed, quashed or called into question before any court of law or administrative review body in any proceedings or restrained, removed or otherwise affected by any proceedings.

The Minister is to make public the reasons for making, or revoking, an order under this section.

Editorial note—

For orders under this section see Gazette No 33 of 14.3.2008, p 2267. From April 2021, PCO is no longer updating notes in provisions of in force titles about related gazette notices. To search for related gazette notices, please use the Gazette Search functionality.

The Minister may by order published in the Gazette (an exemption order) confer exemptions from the operation of section 6 to permit the cultivation of a licensed GM food plant for the principal purpose of conducting experiments.

(Repealed)

An exemption may be conferred so as to apply to a specified person or class of persons or within a specified area or in any other specified way. An exemption may be conferred subject to conditions or unconditionally.

Without limiting subsection (6), an exemption order may be subject to conditions that relate to one or more of the following—

the handling, storage, transport or other use (including destruction or disposal) of any GM food plant that is permitted to be cultivated by the exemption order,

the ongoing use or monitoring of any land on which any such plant has been cultivated.

(Repealed)

A person who cultivates, or has cultivated, a GM food plant as permitted by an exemption order must not, without reasonable excuse, contravene, or cause or permit any other person to contravene, any condition to which the exemption order is subject.

Maximum penalty—in the case of a corporation, 1,250 penalty units or, in any other case, 500 penalty units or imprisonment for 2 years, or both.

A person cannot be prosecuted for both an offence against subsection (6C) and an offence against section 7 in relation to the same act or omission.

The cultivation of a GM food plant as permitted by an exemption order is not prohibited by section 6.

(Repealed)

Editorial note—

For exemption orders published under this section, see Gazette No 147 of 1.12.2005, pp 9857, 9858. From April 2021, PCO is no longer updating notes in provisions of in force titles about related gazette notices. To search for related gazette notices, please use the Gazette Search functionality.

As soon as practicable after making an order under this Division and publishing it in the Gazette, the Minister must cause notice of the order to be published—

in a manner that the Minister is satisfied is likely to bring the notice to the attention of members of the public generally, and

on the Department’s web page on the Internet, and

in the case of an exemption order that does not apply to the whole State, in a manner that the Minister is satisfied is likely to bring the notice to the attention of members of the public in the area in which the exemption order is to apply.

In the case of an exemption order, the Minister is to cause details of the precise location of the area of land to which the exemption order relates—

to be published with the notice of the order, and

to be forwarded to each of the following—

the local council for each local government area in which GM food plants are to be cultivated under the order,

Local Land Services in which GM food plants are to be cultivated under the order,

any other persons or bodies prescribed by the regulations.

Failure to comply with subsection (1) or (1A) does not invalidate an order.

An order made under this Division takes effect on the day on which it is published in the Gazette or on a later day specified in the order.

An order made under this Division cannot be challenged, reviewed or called into question in proceedings before any court or tribunal.