New South Wales Bills New South Wales Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Gene Technology (GM Crop
Moratorium) Bill 2003
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Purpose 2
4 Definitions 2
5 Food plants 3
Part 2 Moratorium on cultivating certain GM plants
Division 1 Moratorium orders
6 Moratorium orders to prohibit GM food crops 4
7 Offence of contravening moratorium order 4
8 Exemptions from moratorium order 4
9 Notification of making an order 5
10 Commencement of order 5
11 Order cannot be challenged 5
Gene Technology (GM Crop Moratorium) Bill 2003
Contents
Page
12 Director-General to keep register of orders 5
13 Advisory Council 6
Division 2 Enforcement of moratorium orders
14 Minister's directions 7
15 Offence--failure to comply with Minister's direction 8
16 Costs of complying with Minister's direction 8
17 Appeal to Supreme Court 9
18 Direction cannot be challenged 10
19 Certificate is conclusive proof that plant is genetically
modified 10
Division 3 Other offences
20 Offence--disposal of offending plants 10
21 Offence--failure to report contravention of moratorium order 11
Part 3 Enforcement
22 Appointment of inspectors 13
23 Powers of inspectors 13
24 Provisions relating to exercise of powers 15
25 Requirement to provide information and records 15
26 Power of inspectors to require answers 16
27 Power to demand name and address 16
28 Limitation on self-incrimination 16
29 Search warrants 17
30 Offences--enforcement 17
31 Disposal of seized items 18
32 Injunctions to prevent contravention of Act 19
Part 4 Miscellaneous
33 No compensation payable 20
34 Summary proceedings for offences 20
35 Penalty notices for certain offences 20
36 Onus of proof concerning reasonable excuse 21
37 Offences by corporations 21
38 Delegation 22
39 Describing plants 22
40 Savings, transitional and other provisions 22
41 Amendment of Acts 22
42 Regulations 22
43 Expiry of Act 23
Contents page 2
Gene Technology (GM Crop Moratorium) Bill 2003
Contents
Page
Schedules
1 Savings, transitional and other provisions 24
2 Amendment of Acts 25
Contents page 3
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE COUNCIL,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Parliaments
Legislative Council
2003
New South Wales
Gene Technology (GM Crop
Moratorium) Bill 2003
Act No , 2003
An Act to enable a moratorium to be imposed on the cultivation of certain
genetically modified plants; and for other purposes.
Clause 1 Gene Technology (GM Crop Moratorium) Bill 2003
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1 Preliminary
1 Name of Act
This Act is the Gene Technology (GM Crop Moratorium) Act 2003.
2 Commencement
(1) This Act commences on the date of assent, except as provided by
subsection (2).
(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.
3 Purpose
The purpose of this Act is to recognise and designate New South
Wales as an area in which certain genetically modified plants may
not be cultivated, in order to preserve the identity of one or both of
the following:
(a) GM crops,
(b) non-GM crops,
for marketing purposes.
4 Definitions
(1) In this Act:
Advisory Council means the New South Wales Agricultural
Advisory Council on Gene Technology established under this Act.
cultivate a plant, includes plant, tend, nurture or harvest the plant.
Department means the Department of Agriculture.
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.
Director-General means the Director-General of the Department.
exemption order means an order in force under section 8.
exercise a function includes perform a duty.
Page 2
Gene Technology (GM Crop Moratorium) Bill 2003 Clause 5
Preliminary Part 1
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:
(a) has been modified by gene technology, or
(b) has inherited from another plant particular traits that occurred
in that other plant because of gene technology.
inspector means an inspector appointed under section 22.
moratorium order means an order in force under section 6.
plant includes the seed or any part of a plant whether living or dead
and whether attached to a plant or not.
(2) Notes included in this Act do not form part of this Act.
5 Food plants
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.
Page 3
Clause 6 Gene Technology (GM Crop Moratorium) Bill 2003
Part 2 Moratorium on cultivating certain GM plants
Part 2 Moratorium on cultivating certain GM plants
Division 1 Moratorium orders
6 Moratorium orders to prohibit GM food crops
The Minister may by order published in the Gazette (a moratorium
order) prohibit the cultivation in New South Wales of a specified
GM food plant or class of GM food plants.
Note. Section 43 provides that the Act expires on 3 March 2006.
7 Offence of contravening moratorium order
A person must not cultivate a GM food plant in contravention of a
moratorium order knowing, or being reckless as to whether, the
plant is a GM food plant.
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.
8 Exemptions from moratorium order
(1) The Minister may by order published in the Gazette (an exemption
order) confer exemptions from the operation of a moratorium order.
(2) Before making an exemption order the Minister is to consult with
the Advisory Council and seek in writing its recommendation as to
whether the exemption order should be made.
(3) The Minister may make an exemption order without a
recommendation if the Minister has given the Advisory Council at
least 28 days to provide its recommendation.
(4) If the Minister makes an exemption order and the Advisory Council
recommended that the exemption order should not be made, the
Minister must provide written reasons to the Advisory Council for
not following its recommendation.
(5) The Minister is to make public any written reasons that the Minister
provides to the Advisory Council under subsection (4) and also the
recommendation to which those written reasons relate.
(6) 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.
Page 4
Gene Technology (GM Crop Moratorium) Bill 2003 Clause 9
Moratorium on cultivating certain GM plants Part 2
(7) The cultivation of a GM food plant as permitted by an exemption
order is not prohibited by a moratorium order.
(8) An exemption order can form part of a moratorium order or can be
a separate order.
9 Notification of making an order
(1) 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:
(a) in a newspaper circulating throughout the State, and
(b) on the Department's web page on the Internet, and
(c) in the case of an exemption order that does not apply to the
whole State, in a newspaper circulating throughout the area in
which the exemption order is to apply.
(2) Failure to comply with subsection (1) does not invalidate an order.
10 Commencement of 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.
11 Order cannot be challenged
An order made under this Division cannot be challenged, reviewed
or called into question in proceedings before any court or tribunal.
12 Director-General to keep register of orders
(1) The Director-General is to keep a register of the orders made under
this Division.
(2) The register is to contain such particulars of each order made under
this Division and is to be kept in such manner and form as the
Director-General may from time to time determine, subject to the
regulations.
(3) The Director-General is to cause the contents of the register to be
made available for inspection free of charge by the public at the
Department's head office and on the Department's website on the
Internet.
Page 5
Clause 13 Gene Technology (GM Crop Moratorium) Bill 2003
Part 2 Moratorium on cultivating certain GM plants
13 Advisory Council
(1) There is established by this Act a New South Wales Agricultural
Advisory Council on Gene Technology, consisting of 10 members
appointed by the Minister.
(2) The members of the Advisory Council are:
(a) a person appointed on the nomination of the Director-General
of the Department of Agriculture, and
(b) a person appointed on the nomination of the NSW Farmers'
Association, and
(c) a person appointed on the nomination of the Network of
Concerned Farmers, and
(d) a person appointed on the nomination of the Nature
Conservation Council of NSW Incorporated, and
(e) a person appointed on the nomination of Graincorp Limited,
and
(f) a person appointed on the nomination of Australian Wheat
Board Pty Ltd, and
(g) a person appointed on the nomination of the Chief Executive
of the Commonwealth Scientific and Industrial Research
Organisation, and
(h) a person appointed on the nomination of the Chair of Avcare
Limited, and
(i) a person appointed on the nomination of the Chair of the
Grains Research and Development Corporation, and
(j) a person appointed to be the independent chairperson of the
Advisory Council.
(3) If an organisation referred to in subsection (2) ceases to exist or fails
to nominate a member then the Minister is to appoint a member on
the nomination of an organisation that the Minister determines is an
organisation that has similar aims and objectives to the first
organisation.
(4) The functions of the Advisory Council are as follows:
(a) to investigate any matter referred to the Advisory Council by
the Minister,
(b) to provide advice in relation to proposed research trials for
GM food plants referred by the Minister,
Page 6
Gene Technology (GM Crop Moratorium) Bill 2003 Clause 14
Moratorium on cultivating certain GM plants Part 2
(c) to provide advice on current developments and issues in
relation to GM technology and its application to agriculture,
(d) to provide policy advice in relation to licences issued under
the Gene Technology Act 2000 of the Commonwealth that
relate to GM food plants.
(5) The procedure of the Advisory Council is to be determined by the
Minister or (subject to any determination of the Minister) by the
Advisory Council.
(6) A member of the Advisory Council is entitled to such allowances in
connection with the work of the Council as the Minister approves in
respect of the member.
Division 2 Enforcement of moratorium orders
14 Minister's directions
(1) The Minister may only take action under this section if the Minister
is in possession of a certificate that relates to a plant (the tested
plant) and the Minister believes on reasonable grounds that:
(a) the tested plant is a GM food plant specified in a moratorium
order, and
(b) the tested plant was not cultivated pursuant to an exemption
order.
(2) The Minister may give a written direction to a person who is the
owner or person having custody or control of the tested plant, or any
plant that is or was part of the offending crop, requiring that person
to do any of the following:
(a) retain ownership, custody or control of the plant for a
specified period,
(b) hold the plant at a particular location for a specified period,
(c) destroy the plant in such manner and within such time as may
be specified,
(d) take such other action in relation to the plant as may be
specified.
Note. Section 17 provides for an appeal to the Supreme Court against a
direction of the Minister given under subsection (2).
(3) The Minister or an inspector acting under the written authority of
the Minister may seize and dispose of or destroy the tested plant and
any plant that is or was part of the offending crop and any container
in which such a plant is growing or stored, if:
Page 7
Clause 15 Gene Technology (GM Crop Moratorium) Bill 2003
Part 2 Moratorium on cultivating certain GM plants
(a) the owner or person having custody or control of the plant has
been given a direction under this section and failed to comply
with the requirements of the direction, or
(b) the Minister considers that seizure and disposal or destruction
of the plant is required urgently.
(4) In order to prevent the contamination of future crops, the Minister
may give a written direction to the owner or occupier of land on
which the Minister reasonably believes the tested plant or the
offending crop has been cultivated, directing that person not to
cultivate any plant of a species or variety specified in the direction
on the land for such period as is specified.
(5) In this section:
certificate means a certificate referred to in section 19.
offending crop means the crop in which the tested plant has been
cultivated.
15 Offence--failure to comply with Minister's direction
A person who is given a written direction under this Division must
not fail, without reasonable excuse, to comply with the requirements
of the direction.
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.
16 Costs of complying with Minister's direction
(1) A person given a written direction under this Division is liable for
any costs incurred in complying with the requirements of the
direction.
(2) The owner or person having custody or control of any plant or
container that is seized and disposed of or destroyed under section
14 (3) is liable for any costs incurred and any such costs are taken to
be a debt due to the Minister from that person.
(3) The owner or person having custody or control of any plant that is
the subject of a certificate referred to in section 19 is liable for the
costs of the test referred to in that certificate and any such costs
incurred by the Minister are taken to be a debt due to the Minister
from that person.
Page 8
Gene Technology (GM Crop Moratorium) Bill 2003 Clause 17
Moratorium on cultivating certain GM plants Part 2
(4) In any proceedings for the recovery of any debt referred to in this
section, a certificate signed by the Minister stating the amount of the
costs and the manner in which they were incurred is evidence of the
matters certified.
17 Appeal to Supreme Court
(1) A person aggrieved by a direction given to the person under section
14 (2) may appeal to the Supreme Court against the direction.
(2) An appeal under this section must be made within 14 days of the
direction being given to the person or within such further period as
the Supreme Court may allow in a particular case.
(3) An appeal under this section can be made even if the direction
appealed against has already been executed.
(4) An appeal under this section does not affect the direction appealed
against until the Supreme Court finally determines the appeal.
(5) On the hearing of an appeal, the Supreme Court may do one or more
of the following:
(a) make an order reversing, affirming or amending the direction
appealed against,
(b) remit the matter back to the Minister for a direction by the
Minister in accordance with the order of the Court,
(c) make an order giving a direction that the Minister could give
under section 14 (2),
(d) despite section 33, make an order awarding compensation
against the Crown in accordance with subsection (7),
(e) make such other order in relation to the appeal as the Court
sees fit.
(6) If the Supreme Court gives a direction that the Minister may give
under section 14 (2), the direction is taken to be a direction of the
Minister under that provision (other than for the purposes of an
appeal under this section).
(7) An award of compensation under this section may only be made in
relation to losses suffered directly by the person given the direction
appealed against and may only be made to the extent that the appeal
is successful.
(8) When awarding compensation under this section, the Supreme
Court cannot award exemplary or punitive damages or damages in
the nature of aggravated damages.
Page 9
Clause 18 Gene Technology (GM Crop Moratorium) Bill 2003
Part 2 Moratorium on cultivating certain GM plants
18 Direction cannot be challenged
Except as provided by this Division, a direction of the Minister
under this Division cannot be challenged, reviewed or called into
question in proceedings before any court or tribunal.
19 Certificate is conclusive proof that plant is genetically modified
(1) For the purposes of this Act, a certificate signed by the person in
charge of an approved laboratory stating that:
(a) an approved test has been conducted on a plant, and
(b) the approved test shows that the plant has been genetically
modified,
is conclusive proof that the plant has been genetically modified.
(2) In this section:
approved laboratory means:
(a) a laboratory that is accredited by the National Association of
Testing Authorities, Australia, or
(b) such other laboratory as may be prescribed by the regulations.
approved test means:
(a) a Polymerase Chain Reaction test, or
(b) such other test as may be prescribed by the regulations.
Division 3 Other offences
20 Offence--disposal of offending plants
The owner or person having custody or control of a plant must not
do any of the following if the person is aware or has reasonable
grounds to suspect that the plant has been cultivated in
contravention of a moratorium order or is or was part of a crop in
which a plant was cultivated in contravention of a moratorium
order:
(a) transfer ownership, custody or control of the plant,
(b) offer the plant for sale,
(c) offer to supply the plant,
(d) destroy the plant,
Page 10
Gene Technology (GM Crop Moratorium) Bill 2003 Clause 21
Moratorium on cultivating certain GM plants Part 2
(e) move the plant to another location,
except in accordance with a permit issued by the Director-General
or a direction under Division 2.
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.
21 Offence--failure to report contravention of moratorium order
(1) A person who is aware or suspects that a plant has been cultivated
in contravention of a moratorium order must notify the Director-
General of the matters in subsection (2) within 2 days of becoming
aware or forming that suspicion.
Maximum penalty: 20 penalty units.
(2) The Director-General must be notified of the following matters:
(a) the location of the plant,
(b) the name of the owner or occupier of the land on which the
plant is located,
(c) the location of the land on which the plant has been cultivated,
(d) the name of the owner or occupier of the land on which the
plant has been cultivated,
(e) the basis for the person knowing or suspecting that the plant
has been cultivated in contravention of a moratorium order,
(f) contact details for the person,
(g) such other matters as may be prescribed by the regulations.
(3) A person is not required to notify the Director-General of a matter
under this section if:
(a) the person has a reasonable excuse for not notifying the
Director-General of the matter, or
(b) the person believes on reasonable grounds that the Director-
General has already been notified of the matter.
(4) A person who is required to notify the Director-General of a matter
under this section is not excused from that requirement because of
any duty of confidentiality or other restriction on disclosure and the
provision of information in accordance with this section does not
constitute a breach of any such duty by that person.
Page 11
Clause 21 Gene Technology (GM Crop Moratorium) Bill 2003
Part 2 Moratorium on cultivating certain GM plants
(5) A person who is required to notify the Director-General of a matter
under this section is not excused from that requirement because
provision of the information may tend to incriminate the person or
make the person liable to a penalty.
(6) A notification provided in accordance with this section is not
admissible in evidence in any criminal proceedings against the
person who provided the notification except proceedings for an
offence against this section.
Page 12
Gene Technology (GM Crop Moratorium) Bill 2003 Clause 22
Enforcement Part 3
Part 3 Enforcement
22 Appointment of inspectors
(1) The Director-General may appoint any officer of the Department, or
any person whom the Director-General considers is suitably
qualified for the purpose, to be an inspector for the purposes of this
Act.
(2) On appointing an inspector under subsection (1), the Director-
General must issue to the inspector a certificate of authority that
authorises the inspector to exercise the powers conferred on an
inspector by this Act.
(3) A certificate of authority must:
(a) state that it is issued under the Gene Technology (GM Crop
Moratorium) Act 2003, and
(b) give the name of the person to whom it is issued, and
(c) state the date, if any, on which it expires, and
(d) describe the nature of the powers conferred and the source of
the powers.
23 Powers of inspectors
(1) An inspector may at any reasonable time enter and inspect any
premises for the purpose of ascertaining whether or not a provision
of this Act, or any regulation made under this Act, is being or has
been complied with or contravened.
(2) While on premises entered under this section or under the authority
of a search warrant under this Part, an inspector may do one or more
of the following:
(a) inspect anything that the inspector reasonably believes may
provide evidence of an offence against this Act or the
regulations,
(b) take, remove and keep for analysis or testing a sample of any
plant, or anything the inspector reasonably believes to be a
plant,
(c) inspect any records kept on those premises and require any
person whom the inspector reasonably believes to have
custody or control of those records to produce them for
inspection,
Page 13
Clause 23 Gene Technology (GM Crop Moratorium) Bill 2003
Part 3 Enforcement
(d) require any person on those premises to answer questions or
otherwise furnish information in relation to a contravention of
this Act or the regulations,
(e) make and take away copies of the whole or any part of any
records or other information,
(f) take away and retain, for such period as may be reasonably
necessary, any records or other information, or any part of
them, in order to make copies of them,
(g) take away and retain any records or other information, if the
inspector concerned reasonably believes that the records or
information are evidence of an offence against this Act or the
regulations, until proceedings for the offence have been
disposed of,
(h) seize and detain anything that the inspector reasonably
believes may provide evidence of an offence against this Act
or the regulations,
(i) place anything seized as referred to in paragraph (h) in a
container, or in a room, compartment or cabinet located on the
premises where it was seized, and mark, fasten and seal that
container or, as the case may be, the door or opening
providing access to that room, compartment or cabinet,
(j) take such photographs, films, audio, video and other
recordings as the inspector considers necessary.
(3) Anything seized under this section may, at the option of the
inspector who made the seizure or another inspector acting in place
of that inspector, be detained on the premises where it was found or
be removed to other premises and detained there.
(4) Before taking away a record or statement or anything seized under
this section, an inspector must tender an appropriate receipt to the
person from whom it was taken.
(5) This section does not authorise an inspector to enter any part of
premises that is being used for residential purposes except:
(a) with the consent of the occupier, or
(b) under the authority of a search warrant.
(6) An inspector must, when exercising on any premises any function
of an inspector under this section, produce the inspector's certificate
of authority if required to do so by the occupier of the premises.
Page 14
Gene Technology (GM Crop Moratorium) Bill 2003 Clause 24
Enforcement Part 3
24 Provisions relating to exercise of powers
(1) A power conferred by this Act to enter premises, or to make an
inspection or take other action on premises, may not be exercised
unless the inspector proposing to exercise the power:
(a) is in possession of a certificate of authority, and
(b) gives reasonable notice to the occupier of the premises of the
intention to exercise the power, unless the giving of notice
would defeat the purpose for which it is intended to exercise
the power, and
(c) exercises the power at a reasonable time, unless it is being
exercised in an emergency, and
(d) uses no more force than is reasonably necessary to effect the
entry or make the inspection.
(2) Despite section 33, if damage is caused by an inspector exercising a
power to enter premises, a reasonable amount of compensation is
recoverable as a debt owed by the Crown to the owner of the
premises unless the occupier obstructed the exercise of the power.
(3) This section does not apply to a power conferred by a search warrant
issued under the Search Warrants Act 1985.
25 Requirement to provide information and records
(1) An inspector may, by notice in writing given to a person, require the
person to furnish to the inspector such information or records (or
both) as the inspector requires by the notice, being information that
relates to the question of whether or not this Act or the regulations
are being or have been contravened.
(2) A notice under this section:
(a) must specify the manner in which information or records are
required to be furnished and a reasonable time by which the
information or records are required to be furnished, and
(b) may only require a person to furnish existing records that are
in the person's possession or that are within the person's
power to obtain lawfully.
(3) The inspector to whom any record is furnished under this Part may
take copies of it.
(4) If any record required to be furnished under this Part is in electronic,
mechanical or other form, the notice requires the record to be
furnished in written form, unless the notice otherwise provides.
Page 15
Clause 26 Gene Technology (GM Crop Moratorium) Bill 2003
Part 3 Enforcement
(5) This section applies whether or not a power of entry under this Act
is being or has been exercised.
26 Power of inspectors to require answers
(1) An inspector may require a person whom the inspector suspects on
reasonable grounds to have knowledge of matters in respect of
which information is reasonably required for the purposes of this
Act to answer questions in relation to those matters.
(2) An inspector may, by notice in writing, require a corporation to
nominate, in writing within the time specified in the notice, a
director or officer of the corporation to be the corporation's
representative for the purpose of answering questions under this
section.
(3) Answers given by a person nominated under subsection (2) bind the
corporation.
27 Power to demand name and address
An inspector may require a person whom the inspector suspects on
reasonable grounds to have contravened or to be contravening this
Act or the regulations to state his or her full name and residential
address.
28 Limitation on self-incrimination
(1) A person who is required under this Part to answer a question or to
produce a thing is not excused from answering the question or
producing that thing on the ground that the answer to the question
or the production of the thing might tend to incriminate the person
or make the person liable to a penalty.
(2) The answer to the question or production of the thing is not
admissible in evidence against the person in any criminal
proceedings (except proceedings for an offence under section 30
(1)(3)) if:
(a) the person objected at the time to answering the question or
producing the thing on the ground that it might incriminate the
person, or
(b) the person was not warned on that occasion that the person
may object to answering the question or producing the thing
on the ground that it might incriminate the person.
Page 16
Gene Technology (GM Crop Moratorium) Bill 2003 Clause 29
Enforcement Part 3
29 Search warrants
(1) An inspector may apply to an authorised justice for a search warrant
for premises if the inspector believes on reasonable grounds:
(a) that a provision of this Act or the regulations is being or has
been contravened on the premises, or
(b) that there is on the premises evidence of a contravention of a
provision of this Act or the regulations.
(2) An authorised justice to whom such an application is made may, if
satisfied that there are reasonable grounds for doing so, issue a
search warrant authorising an inspector named in the warrant:
(a) to enter and inspect any premises, and
(b) to exercise the powers, or any specified powers, of an
inspector under this Part.
(3) Part 3 of the Search Warrants Act 1985 applies to a search warrant
issued under this section.
(4) In this section:
authorised justice has the same meaning as in the Search Warrants
Act 1985.
30 Offences--enforcement
(1) A person who, without reasonable excuse, neglects or fails to
comply with a requirement made of the person by an inspector
under this Act is guilty of an offence.
(2) A person who furnishes any information or makes a statement in
purported compliance with a requirement made by an inspector
under this Act, knowing that it is false or misleading in a material
respect, is guilty of an offence.
(3) A person who, without reasonable excuse, hinders or obstructs an
inspector in the exercise of any of the powers conferred by this Act
is guilty of an offence.
(4) A person who, without reasonable excuse, removes or tampers with
anything that has been seized under this Act is guilty of an offence.
(5) A person who, without reasonable excuse, removes or tampers with
any sample taken under this Act is guilty of an offence.
Page 17
Clause 31 Gene Technology (GM Crop Moratorium) Bill 2003
Part 3 Enforcement
(6) A person is not guilty of an offence of failing to comply with a
requirement made by an inspector unless it is established by the
prosecutor that the inspector concerned warned the person that a
failure or refusal to comply with the requirement was an offence.
(7) A person is not guilty of an offence of hindering or obstructing an
inspector in the exercise of the inspector's powers at any premises
unless it is established by the prosecutor that:
(a) the inspector concerned produced at the relevant time the
certificate of authority issued to the inspector under this Part,
and
(b) the person was informed by the inspector concerned, or
otherwise knew, that the inspector was empowered to
exercise the power to which the offence relates.
Maximum penalty: 10 penalty units or imprisonment for 3 months,
or both.
31 Disposal of seized items
(1) Any item seized under this Act is forfeited to the Crown and may be
destroyed or disposed of in such manner as the Minister directs.
(2) However, if:
(a) any seized item is forfeited to the Crown under this section,
and
(b) the Minister is satisfied that there has been no contravention
of this Act or the regulations in relation to the seized item, and
(c) the seized item has not been disposed of or destroyed in a
manner that would prevent it from being dealt with in
accordance with this subsection,
the Minister must immediately cause the seized item to be delivered
to such person as appears to the Minister to be the person who
would, but for the forfeiture, have been entitled to it.
(3) If any seized item is delivered to a person in accordance with
subsection (2), such proprietary and other interests as existed
immediately before the forfeiture are revived.
Page 18
Gene Technology (GM Crop Moratorium) Bill 2003 Clause 32
Enforcement Part 3
32 Injunctions to prevent contravention of Act
(1) If a person has contravened, is contravening or is proposing to
contravene a provision of this Act, the Supreme Court may, on the
application of the Minister, grant an injunction restraining the
person from doing so or requiring the person to do any act or thing
necessary to avoid or remedy the contravention.
(2) The Court may, before considering the application, grant an interim
injunction restraining the person from engaging in conduct pending
the determination of the application.
(3) The Court may rescind or vary such an injunction or interim
injunction.
(4) The Minister is not to be required to give any undertaking as to
damages or costs in respect of an application under this section.
Page 19
Clause 33 Gene Technology (GM Crop Moratorium) Bill 2003
Part 4 Miscellaneous
Part 4 Miscellaneous
33 No compensation payable
(1) Compensation is not payable by or on behalf of the Crown in
relation to anything that is authorised by or under this Act.
(2) In this section:
compensation includes damages or any other form of monetary
compensation.
the Crown means the Crown within the meaning of the Crown
Proceedings Act 1988, and includes an officer, employee or agent
of the Crown.
34 Summary proceedings for offences
(1) Proceedings for an offence against this Act or the regulations may
be dealt with:
(a) summarily before a Local Court, or
(b) summarily before the Supreme Court in its summary
jurisdiction.
(2) If proceedings are brought in a Local Court, the maximum monetary
penalty that the Local Court may impose for the offence is 100
penalty units or such other amount as may be prescribed by the
regulations, despite any higher maximum monetary penalty
provided in respect of the offence.
35 Penalty notices for certain offences
(1) An authorised officer may serve a penalty notice on a person if it
appears to the officer that the person has committed an offence
under this Act or the regulations, being an offence prescribed by the
regulations.
(2) A penalty notice is a notice to the effect that, if the person served
does not wish to have the matter dealt with by a court, the person
may pay, within the time and to the person specified in the notice,
the amount of penalty prescribed by the regulations for the offence
if dealt with under this section.
(3) A penalty notice may be served personally or by post.
(4) If the amount of penalty prescribed for an alleged offence is paid
under this section, no person is liable to any further proceedings for
the alleged offence.
Page 20
Gene Technology (GM Crop Moratorium) Bill 2003 Clause 36
Miscellaneous Part 4
(5) Payment under this section is not to be regarded as an admission of
liability for the purpose of, nor in any way as affecting or
prejudicing, any civil claim, action or proceedings arising out of the
same occurrence.
(6) The regulations may:
(a) prescribe an offence for the purposes of this section by
specifying the offence or by referring to the provision creating
the offence, and
(b) prescribe the amount of penalty payable for the offence if
dealt with under this section, and
(c) prescribe different amounts of penalties for different offences
or classes of offences.
(7) The amount of a penalty prescribed under this section for an offence
must not exceed the maximum amount of penalty that could be
imposed for the offence by a court.
(8) This section does not limit the operation of any other provision of,
or made under, this or any other Act relating to proceedings which
may be taken in respect of offences.
(9) In this section:
authorised officer means:
(a) an inspector, or
(b) a person declared by the regulations to be an authorised
officer for the purposes of this section.
36 Onus of proof concerning reasonable excuse
In any proceedings for an offence against a provision of this Act or
the regulations, the onus of proving that a person had a reasonable
excuse (as referred to in the provision) lies with the defendant.
37 Offences by corporations
(1) If a corporation contravenes, whether by act or omission, any
provision of this Act or the regulations, each executive officer of the
corporation is taken to have contravened the same provision if the
person knowingly authorised or permitted the act or omission
constituting the offence.
(2) A person may be proceeded against and convicted under a provision
pursuant to subsection (1) whether or not the corporation has been
proceeded against or been convicted under that provision.
Page 21
Clause 38 Gene Technology (GM Crop Moratorium) Bill 2003
Part 4 Miscellaneous
(3) Nothing in subsection (1) prejudices or affects any liability imposed
by a provision of this Act or the regulations on any corporation by
which an offence against the provision is actually committed.
38 Delegation
(1) The Minister may delegate to the Director-General, or to an
authorised person, the exercise of any of the Minister's powers
under this Act or the regulations, other than the power to make an
order under Division 1 of Part 2, the power to give a direction or
authorisation under section 14 and this power of delegation.
(2) The Director-General may delegate to an authorised person the
exercise of:
(a) any of the functions delegated to the Director-General by the
Minister, or
(b) any of the other functions of the Director-General under this
Act or the regulations, other than this power of delegation.
(3) In this section, authorised person means:
(a) a member of staff of the Department, or
(b) any person of a class prescribed by the regulations.
39 Describing plants
For the purposes of this Act, a plant may be described by its
scientific name, its common name or in any other way.
40 Savings, transitional and other provisions
Schedule 1 has effect.
41 Amendment of Acts
The Acts specified in Schedule 2 are amended as set out in that
Schedule.
42 Regulations
(1) The Governor may make regulations, not inconsistent with this Act,
for or with respect to any matter that by this Act is required or
permitted to be prescribed or that is necessary or convenient to be
prescribed for carrying out or giving effect to this Act.
(2) The regulations may create offences punishable by a penalty not
exceeding 100 penalty units.
Page 22
Gene Technology (GM Crop Moratorium) Bill 2003 Clause 43
Miscellaneous Part 4
43 Expiry of Act
This Act expires on 3 March 2006.
Page 23
Gene Technology (GM Crop Moratorium) Bill 2003
Schedule 1 Savings, transitional and other provisions
Schedule 1 Savings, transitional and other provisions
(Section 40)
Part 1 General
1 Regulations
(1) The regulations may contain provisions of a savings or transitional
nature consequent on the enactment of the following Acts:
this Act
(2) Any such provision may, if the regulations so provide, take effect
from the date of assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect from a date
that is earlier than the date of its publication in the Gazette, the
provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the
State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an
authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
Part 2 Provisions consequent on the enactment of
this Act
2 Matter occurring before moratorium order made
A moratorium order extends to plants that were planted before the
making of the order, including plants that were planted before the
date of assent to this Act, however, an act or omission occurring
before the making of the order does not constitute an offence in
relation to that order.
Page 24
Gene Technology (GM Crop Moratorium) Bill 2003
Amendment of Acts Schedule 2
Schedule 2 Amendment of Acts
(Section 41)
2.1 Gene Technology (GM Crop Moratorium) Act 2003
[1] Section 24 Provisions relating to exercise of powers
Omit "Search Warrants Act 1985" from section 24 (3).
Insert instead "Law Enforcement (Powers and Responsibilities) Act
2002".
[2] Section 29 Search warrants
Omit "authorised justice" wherever occurring from section 29 (1) and (2).
Insert instead "authorised officer".
[3] Section 29 (3)
Omit "Part 3 of the Search Warrants Act 1985".
Insert instead "Division 4 of Part 5 of the Law Enforcement (Powers and
Responsibilities) Act 2002".
[4] Section 29 (4)
Omit the subsection. Insert instead:
(4) In this section:
authorised officer has the same meaning as it has in the Law
Enforcement (Powers and Responsibilities) Act 2002.
2.2 Fines Act 1996 No 99
Schedule 1 Statutory provisions under which penalty notices
issued
Insert in alphabetical order:
Gene Technology (GM Crop Moratorium) Act 2003, section
35
Page 25
Gene Technology (GM Crop Moratorium) Bill 2003
Schedule 2 Amendment of Acts
2.3 Law Enforcement (Powers and Responsibilities) Act 2002 No
103
Schedule 2 Search warrants under other Acts
Insert in alphabetical order:
Gene Technology (GM Crop Moratorium) Act 2003, section
29
2.4 Search Warrants Act 1985 No 37
Section 10 Definitions
Insert in alphabetical order of Acts in the definition of search warrant:
section 29 of the Gene Technology (GM Crop Moratorium)
Act 2003,
Page 26
[Index] [Search] [Download] [Related Items] [Help]