Summary of this Part

This Part sets out the power of the GTR to:
  • issue written directions to licence holders and persons covered by a licence, requiring them to take action to comply with the Act; and/or
  • seek an injunction restraining a person from engaging in conduct that would be an offence under the Act.
The Part also deals with forfeiture to the Commonwealth of goods involved in the commission of an offence.

Key provisions in this Part and major changes as a result of consultation on the draft Bill

The issues of enforcement and remediation were raised consistently during consultations and in written submissions. On the whole people agreed that although the enforcement provisions would in all likelihood only rarely be used, the legislation needed to provide for a range of enforcement alternatives in the event of a significant breach of a licence.

This Part describes the power of the GTR to issue directions to licence holders and seek injunctions against licence holders to either compel them to do something or restrain them from doing something that is in breach of the legislation. These powers are in addition to the general capacity of the GTR to:
  • vary a licence to impose additional conditions where necessary;
  • suspend or cancel a licence;
  • report a suspected breach of the legislation directly to Parliament; and
  • prosecute an offence against the legislation.

Power to give directions to licence holders (clause 146)

This clause addresses the issue of remediation (or “clean up”) in the case of a problem arising from the release of a GMO. The GTR has a right to recover the costs which he/she incurs as a result of the need to remediate following a breach of condition.

If a licence holder or a person covered by a licence does not act in accordance with the legislation, and their actions are likely to cause, or are causing, harm to the health and safety of people or to the environment, then the GTR may give written directions to the person directing them to comply with the legislation. If the person does not take the necessary action within a specified period of time, the GTR may take additional steps, or direct that necessary steps be taken, to ensure compliance with the legislation.

This provision effectively enables a “clean-up” or remediation to be undertaken, either by the GTR or by the licence holder under the direction of the GTR.

The clause further provides that if costs are incurred by the GTR in taking steps to bring the activity back into compliance with the legislation, such costs may be recovered from the licence holder or the person covered by the licence (as applicable).
    If a genetically modified virus has been released in breach of a condition of containment, the GTR can direct the licence holder to immediately re-contain the virus and test the surrounding areas to ensure the virus is re-contained. If the licence holder doesn’t have the necessary skills and expertise to re-contain the virus, the GTR may employ specialised persons to do so, and recover the costs associated with this from the licence holder.

This clause should also be read in conjunction with clause 158, which enables an inspector to take immediate action where there is an imminent risk of danger to health and safety of people or to the environment. In such circumstances, the inspector can take such steps as are necessary without first giving written notice to the licence holder or applicant requiring them to take the necessary steps.
Such action, by the inspector or others, is also cost recoverable from the offending party.

Injunctions (clause 147)

This clause allows the GTR, or any other person, to apply to the Federal Court for an injunction to restrain a person from engaging in conduct that would be an offence under the legislation. It also describes the powers of the Court in granting such an injunction.

Forfeiture (clause 148)

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This is a formal provision which has the effect that if a person is convicted of an offence under the Act, the Court may order that the things used in the commission of the offence be forfeited to the Commonwealth.

Recovery by third parties and strict liability

During consultations, there was significant discussion about whether the legislation should provide for strict liability for damage caused by the introduction of a GMO or product thereof. This would mean that third parties who were harmed by the introduction of a GMO could directly recover (possibly through a compensation fund) for personal injury, damage to property or financial loss, without having to establish a common law action such as negligence.

It is not currently the policy of Australian governments to support the imposition of a strict liability regime in relation to any damage suffered by third parties. All jurisdictions consider that the legislation should not provide remedies for third parties where they may have been affected by the release of a GMO. Where a third party is adversely affected by the release of a GMO, that person’s recourse would be through common law actions such as negligence, nuisance or trespass. This is consistent both with the approach adopted in other comparable Australian schemes (e.g. therapeutic goods and agricultural and veterinary chemicals) and also with international precedents.

For a clause by clause explanation of this Part please refer to the Explanatory Memorandum to the Gene Technology Bill 2000.