Genetically Modified Organisms Control Act 2004
An Act to provide for the whole or any part of Tasmania to be declared to be a genetically modified organisms free area for the purpose of preserving the identity of non-genetically modified crops and animals for marketing purposes, to provide for persons to be allowed to deal with genetically modified organisms under permits, to consequentially amend the Gene Technology Act 2001 and for related purposes
[Royal Assent 16 November 2004]
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
PART 1 - Preliminary
This Act may be cited as the Genetically Modified Organisms Control Act 2004 .
This Act commences on the day on which this Act receives the Royal Assent.
(1) In this Act, unless the contrary intention appears –authorised officer means a person appointed as an authorised officer under section 6(2) ;deal with, in relation to a GMO, means –(a) conduct experiments with the GMO; or(b) make, develop, produce or manufacture the GMO; or(c) breed the GMO; or(d) propagate the GMO; or(e) use the GMO in the course of manufacture of a thing that is not the GMO; or(f) grow, raise or culture the GMO; or(g) import the GMO; or(h) possess, supply, use, transport or dispose of the GMO for the purposes of, or in the course of, a dealing specified in paragraph (a) , (b) , (c) , (d) , (e) , (f) or (g) ; or(i) be responsible for the occurrence or existence of the GMO in a place;destruction order means an order for the destruction of a GMO made under section 26 ;genetically modified organism has the same meaning as in the Gene Technology Act 2001 ;GMO means genetically modified organism;GMO-free area means, while an order under section 5 is in force, the whole or the part of Tasmania declared by the Minister in the order to be an area that is free of GMOs;GMO licence means –(a) a GMO licence within the meaning of section 10(1) of the Gene Technology Act 2000 of the Commonwealth; or(b) a GMO licence within the meaning of the Gene Technology Act 2001 ;permit means a permit granted under section 9 ;permit holder means the person to whom a permit is granted under section 9 ;premises includes a part of premises;Secretary means the Secretary of the Department.(2) For the purposes of paragraph (i) of the definition of deal with , a person is responsible for the occurrence or existence of a GMO in a place if the person introduced the GMO into that place.
This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.
5. Declaration of GMO-free area
(1) The Minister, by order, may declare the whole or any part of Tasmania to be an area that is free of GMOs if he or she considers that to do so would aid in preserving the identity of non-genetically modified crops and animals for marketing purposes.(2) An order under subsection (1) is a statutory rule for the purposes of the Rules Publication Act 1953 .
6. Appointment of authorised officers
(1) In this section –Departmental officer means a person appointed subject to and in accordance with the State Service Act 2000 for the purposes of the Department.(2) The Secretary may appoint a Departmental officer to be an authorised officer.
PART 2 - Dealing with GMO in GMO-free Area Prohibited
7. Dealing with GMO in GMO-free area prohibited
A person must not deal with a GMO in a GMO-free area unless that person is authorised to so deal with the GMO by both –(a) a permit; and(b) a GMO licence.Penalty: Fine not exceeding 2 000 penalty units.
PART 3 - Permits
Division 1 - Obtaining permit and its form and effect
(1) A person may apply to the Secretary for a permit to deal with a GMO in a GMO-free area.(2) An application is to –(a) be in a form approved by the Secretary; and(b) be accompanied by any prescribed fee.(3) The Secretary may require the applicant to provide any further information he or she considers relevant.(4) An applicant is to notify the Secretary of any change which affects the information included in an application or provided under subsection (3) –(a) before the change occurs if at all possible; or(b) as soon as practicable after the change has occurred.
(1) On receipt of an application under section 8 , the Secretary may –(a) grant a permit to the applicant; or(b) refuse to grant a permit to the applicant.(2) In determining whether or not to grant a permit, the Secretary is to consider –(a) the location and purpose of the dealing with the GMO as proposed in the application; and(b) the likely impact on market access for non-genetically modified crops and animals of the dealing with the GMO as proposed in the application; and(c) the management regime for the GMO as proposed in the application; and(d) any other matter the Secretary considers relevant.(3) The Secretary may grant a permit to a person who has not applied for one under section 8 if –(a) the Minister has declared an area to be a GMO-free area under section 5 or has notified the Secretary that he or she intends to make such a declaration; and(b) there is a GMO in that area; and(c) the Secretary is satisfied that the person to whom the permit is to be issued is responsible for introducing the GMO to that area or has otherwise had dealings with the GMO.
10. Issue of permit or notice of refusal
(1) On granting a permit and on receipt of payment of any prescribed permit fee, the Secretary is to issue a permit to the person to whom it is granted.(2) On refusing to grant a permit, the Secretary is to notify the applicant for the permit, in writing, of that refusal.
(1) A permit is in force for the period determined by the Secretary and specified in the permit.(2) A permit comes into force on the day it is issued or on a later day determined by the Secretary and specified in the permit.(3) A permit ceases to be in force when any of the following occurs:(a) the period for which the permit is in force ends;(b) the permit is surrendered under section 18 ;(c) the permit is cancelled under section 19 .
12. Permit subject to conditions
(1) A permit is subject to any conditions determined by the Secretary and specified in the permit.(2) Without limiting the conditions to which a permit may be subject, a permit may be subject to a condition requiring, or relating to, the removal of a GMO from a GMO-free area.(3) The Secretary may determine the conditions to which a permit is subject when determining to grant the permit under section 9 or at any time after the permit has been issued.(4) If the Secretary imposes conditions after the permit has been issued, those conditions take effect on the day the permit holder receives written notice of the conditions or on a later day specified in that notice.(5) The permit holder must comply with the conditions to which the permit is subject.Penalty: Fine not exceeding 2 000 penalty units.
(1) A permit is to –(a) be in a form approved by the Secretary; and(b) specify the premises or the area in which the dealing with the GMO authorised by the permit may occur; and(c) specify any conditions to which the permit is subject.(2) Conditions to which a permit is subject may be specified in the permit by –(a) specifying those conditions in or on the permit; or(b) attaching those conditions to the permit; or(c) providing to the permit holder a written notice containing those conditions.
A permit authorises the permit holder to deal with a GMO as specified in, and in accordance with, the permit if, and only if, the permit holder also holds a GMO licence that authorises the same dealings with GMOs as the permit authorises.
A permit is not transferable to any other person.
16. Amendment of permit or conditions
(1) The Secretary may amend a permit or the conditions to which a permit is subject on the application of the permit holder or at his or her own discretion.(2) An application is to –(a) be in a form approved by the Secretary; and(b) be accompanied by any prescribed fee.(3) The Secretary may require the applicant to provide any further information he or she considers relevant.(4) An applicant is to notify the Secretary of any change which affects the information included in an application or provided under subsection (3) –(a) before the change occurs if at all possible; or(b) as soon as practicable after the change has occurred.(5) If the Secretary amends a permit or the conditions to which the permit is subject, the Secretary is to –(a) notify the permit holder of that amendment; and(b) either endorse that amendment on the permit or provide the permit holder with a replacement permit.(6) For the purposes of subsection (5)(b) , the Secretary, in writing, may require the permit holder to surrender the permit to the Secretary.(7) A permit holder must comply with a requirement made under subsection (6) .Penalty: Fine not exceeding 10 penalty units.(8) An amendment of a permit or the conditions to which a permit is subject takes effect on the day the permit holder receives written notice of the amendment or on a later day specified in that notice.
(1) In this section –expiry day means the day on which the term of a permit ends and the permit ceases to be in force.(2) A permit holder may apply to the Secretary for the renewal of the permit not less than 3 calendar months before the expiry day.(3) This Part applies in respect of an application for the renewal of a permit and that renewal as if the application were an application for a first permit.(4) If –the renewal takes effect on the day after the expiry day.(a) a permit holder applies for the renewal of a permit as specified in subsection (2) ; and(b) the Secretary renews the permit –(5) If –the permit continues in force until the Secretary has notified the permit holder, in writing, of the renewal of the permit or until the application for renewal is withdrawn.(a) a permit holder applies for the renewal of a permit as specified in subsection (2) ; and(b) the Secretary has not renewed the permit by the expiry day –(6) If –the Secretary is to notify the permit holder of that refusal in writing, and the permit continues in force until the day specified in that notice.(a) a permit holder applies for the renewal of a permit as specified in subsection (2) ; and(b) the Secretary refuses to renew the permit –
(1) With the approval of the Secretary, a permit holder may surrender the permit.(2) The Secretary is to notify the permit holder, in writing, of his or her approval to the surrender of the permit.(3) The approval of the Secretary is subject to any conditions specified in the notice under subsection (2) .(4) A surrender of a permit takes effect on the day the notice under subsection (2) is received by the permit holder or a later day specified in the notice.(5) A notice under subsection (2) may specify the day on which the surrender of the permit takes effect by reference to –(a) a time or a date; or(b) the fulfilling of a condition; or(c) the happening of an event; or(d) any other thing the Secretary considers appropriate.
Division 2 - Disciplinary action
(1) In this section –disciplinary action means any one or more of the following:(a) the issuing of a letter of censure;(b) the imposition of a fine not exceeding 20 penalty units;(c) the amendment of a permit;(d) the suspension of a permit;(e) the cancellation of a permit.(2) Subject to this section, the Secretary may take disciplinary action if satisfied –(a) that a permit holder has contravened this Act; or(b) of any other prescribed matter.(3) The Secretary may not take disciplinary action, other than the issue of a letter of censure, without first allowing the permit holder an opportunity to make submissions in relation to the matter and considering any submissions so made.(4) A letter of censure may direct the permit holder to take the action specified in the letter for the purposes of rectifying any matter giving rise to the letter of censure and may direct that the action be taken within a period specified in the letter.(5) A permit holder must comply with a direction given in a letter of censure within the period specified in the letter of censure.(6) On making a determination under subsection (2) , the Secretary must notify the permit holder in writing as to whether or not disciplinary action is being taken and, if so, what disciplinary action is being taken.(7) The cancellation, suspension or amendment of a permit, or the amendment of the conditions specified in a permit, takes effect on the day the permit holder receives the notice given under subsection (6) or on a later day specified in that notice.(8) The Secretary may at any time terminate or reduce a period of suspension.(9) A fine imposed under this section may be recovered as a debt due to the Crown.
PART 4 - Inspections
(1) For the purposes of determining whether or not a person is contravening this Act or the conditions to which a permit is subject, an authorised officer may at any time –(a) enter, remain in and inspect any premises or area, other than premises that are a residence –(i) in or from which an authorised officer has reasonable grounds for believing that a permit holder or other person is or may be dealing with a GMO; or(ii) in which an authorised officer has reasonable grounds for believing that any document relating to a dealing with a GMO is kept; and(b) examine, seize, make copies of or take extracts from any document in those premises or that area; and(c) take photographs, films, video recordings, audio recordings and other recordings in those premises or that area; and(d) seize any thing that appears to indicate that an offence under this Act has been or is being committed; and(e) operate mechanical, electrical and electronic equipment in those premises or that area.(2) In any premises or area lawfully entered under subsection (1) , an authorised officer may require the permit holder, a person apparently in charge of the premises or area or any person apparently employed by the permit holder or in those premises or that area to –(a) provide the authorised officer with his or her name and address; and(b) answer any question that the authorised officer considers relevant; and(c) provide as directed a document, or a copy of a document, that is in the person's possession or control and that the authorised officer considers relevant; and(d) otherwise provide information that the person has access to and that the authorised officer considers relevant; and(e) provide reasonable assistance in relation to the exercise of the authorised officer's powers.(3) In the exercise of his or her powers under this section, an authorised officer may be assisted by such police officers or other persons as the authorised officer considers appropriate.(4) A police officer or other person assisting an authorised officer has the same powers under this section as the authorised officer has.(5) A person must not, without reasonable excuse, fail or refuse to comply with a requirement made under subsection (2) .Penalty: Fine not exceeding 10 penalty units.(6) On convicting a person of an offence under subsection (5) , in addition to imposing a penalty the court may order that person to provide the answer, other information or document in respect of which the offence was committed.
21. Access to and possession of seized document or thing
(1) If an authorised officer, or a police officer or person assisting an authorised officer, has seized or otherwise taken possession of a document or other thing under section 20 –(a) the Secretary has possession of the document or thing; and(b) the Secretary may retain the document or thing for so long as is necessary for the purposes of this Act; and(c) the authorised officer must provide written notice of the seizure or taking of possession as soon as is reasonably practicable to –(i) the person from whom it was seized or taken; or(ii) the person who would be entitled to possession of the document if it were not in the possession of the Secretary; and(d) on the request of a person who would be entitled to possession of the document if it were not in the possession of the Secretary, the Secretary must provide that person with a copy of the document certified by the Secretary to be a true copy.(2) A copy of a document certified by the Secretary to be a true copy is to be received in all courts and elsewhere as if it were the original document.
22. Authorised officer may give directions
(1) As the result of or during an inspection under section 20 , an authorised officer may give written directions to a permit holder or a person who is apparently in charge of the premises or area inspected or being inspected.(2) Without limiting the directions that may be given under subsection (1), those directions may include directions requiring the permit holder or person apparently in charge to take any action or measures to ensure that the permit holder or person apparently in charge is not in, or does not continue to be in, contravention of this Act or the conditions to which the permit is subject.(3) A person given a direction under subsection (1) must comply with the direction.Penalty: Fine not exceeding 1 000 penalty units.(4) On convicting a person of an offence under subsection (3) , in addition to imposing a penalty the court may order that person to comply with the direction in respect of which the offence was committed.
23. Authorised officer to show identification
If, during an inspection under section 20 , a person to whom section 20(2) applies requests that the authorised officer produce identification –(a) the officer must produce his or her identification as an authorised officer to that person; and(b) the officer may not take any action or further action under this Act in relation to the inspection until he or she has so produced that identification.
(1) If a person refuses to allow an authorised officer to enter, remain in and inspect premises or an area that the authorised officer on reasonable grounds believes, or if an authorised officer on reasonable grounds believes that a residence –the authorised officer may apply to a justice for a warrant.(a) are or is being used for the purposes of a dealing with a GMO; or(b) may contain any documents relating to a dealing with a GMO –(2) On receipt of an application under subsection (1) , a justice may issue a warrant if satisfied, by information on oath –(a) that a person has refused to allow an authorised officer to enter, remain in and inspect the premises or area; or(b) that the authorised officer has reasonable grounds for the belief referred to in that subsection in relation to the residence.(3) A warrant authorises an authorised officer and such police officers and other assistants as the authorised officer considers appropriate, using such force as is reasonable –(a) to enter, remain in and inspect the premises, area or residence specified in the warrant; and(b) to perform and exercise any functions and powers in those premises or that area or residence that the authorised officer, police officers and assistants may perform and exercise in, or in respect of, any premises or area lawfully entered under section 20 .(4) An application for a warrant –(a) may be in a written form approved and provided by the Secretary; or(b) if the justice is satisfied that the circumstances are urgent or that the delay resulting from a written application would frustrate the effective execution of the warrant, may be made by telephone, telex, facsimile, e-mail or other electronic means.(5) Section 15 of the Search Warrants Act 1997 applies, with necessary modifications and adaptations, in respect of an application under this section and a warrant issued as a result of such an application.(6) A person must not refuse to allow an authorised officer or any police officer or other person assisting the authorised officer to enter, remain in and inspect any premises, area or residence when authorised by a warrant under this section.Penalty: Fine not exceeding 10 penalty units.
(1) The Secretary, by written notice provided to a permit holder, may require the permit holder to pay a fee, determined by the Secretary, in respect of an inspection, other than an inspection relating to an application for a permit or the renewal of a permit.(2) A fee under subsection (1) must not exceed the reasonable costs of the inspection.(3) The permit holder must pay any fee he or she is required to pay under subsection (1) .(4) If the whole or any part of any fee the permit holder is required to pay under subsection (1) is due and unpaid, that amount may be recovered in a court of competent jurisdiction as a debt due to the Crown.
PART 5 - Destruction of GMO
26. Order for destruction of GMO
The Secretary, in writing, may order the destruction of a GMO if he or she is satisfied that –(a) an offence under this Act has been or is being committed in relation to the GMO; or(b) for any other reason the GMO should be destroyed.
(1) In this section –responsible person, in relation to a GMO in any premises or area, means a person an authorised officer reasonably believes –(a) has introduced the GMO to the premises or area; or(b) has otherwise had dealings with the GMO; or(c) has possession or control of, or is in charge of, the GMO.(2) For the purposes of giving effect to a destruction order, an authorised officer may –(a) enter and remain in the premises or area in which he or she reasonably believes the GMO is situated; and(b) require a permit holder or a responsible person to destroy the GMO in accordance with the notice provided under subsection (3) ; and(c) seize the GMO; and(d) destroy the GMO, either in those premises or that area or elsewhere.(3) A requirement to destroy a GMO under subsection (2)(b) is to be made by written notice, attached to a copy of the destruction order, provided to the permit holder or the responsible person.(4) When exercising powers under this section, an authorised officer may –(a) be assisted by such police officers and other persons as the authorised officer considers appropriate; and(b) use such force as the authorised officer considers necessary.(5) A police officer or other person assisting an authorised officer has the same powers under this section as the authorised officer has.(6) The Secretary may require a permit holder or a responsible person to meet the whole or any part of the reasonable costs incurred in destroying the GMO if an authorised officer destroys the GMO under this section on the authority of a destruction order made because the Secretary is satisfied that an offence under this Act has been or is being committed in relation to the GMO.(7) A requirement under subsection (6) is to be made by written notice provided to the permit holder or the responsible person.(8) The permit holder or the responsible person must meet any costs he or she is required to meet under subsection (6) .(9) If the whole or any part of any costs the permit holder or the responsible person is required to meet under subsection (6) is due and unpaid, that amount may be recovered in a court of competent jurisdiction as a debt due to the Crown.
(1) A permit holder or other person responsible for a GMO that has been destroyed under section 27 is not entitled to any compensation in relation to the destruction of the GMO if the destruction was a consequence of the permit holder or other person committing an offence under this Act.(2) A permit holder or other person responsible for a GMO is entitled to compensation for loss or damage suffered as a result of the destruction of a GMO under section 27 if the destruction was for a reason other than that the permit holder or other person responsible for a GMO committed an offence under this Act.(3) A claim for compensation is to be –(a) in a form approved by the Secretary; and(b) accompanied by such evidence of the loss or damage suffered as the Secretary requires; and(c) made within one year after the destruction of the GMO.(4) The amount of compensation payable is the amount agreed between the Secretary and the permit holder or other person responsible for the GMO.(5) If the permit holder or other person responsible for the GMO and Secretary cannot agree to the amount of compensation payable, the amount is to be determined in the same manner as a disputed claim for compensation under the Land Acquisition Act 1993 .(6) Compensation is payable out of money provided by Parliament for the purpose.
PART 6 - Offences
29. Offences in relation to inspections, &c.
A person must not, without reasonable excuse –(a) resist, impede, obstruct or assault –(i) an authorised officer who is performing or exercising any function or power under this Act; or(ii) a person assisting that authorised officer; or(b) use threatening, abusive or insulting language to such an authorised officer or assistant; or(c) prevent or attempt to prevent a person from answering questions, giving information or providing documents to such an officer or assistant; or(d) impersonate an authorised officer.Penalty: Fine not exceeding 10 penalty units.
PART 7 - Review of Decisions
A person aggrieved by any of the following decisions of the Secretary may apply to the Magistrates Court (Administrative Appeals Division) for a review of that decision:(a) the refusal to grant or renew a permit;(b) the imposition of a condition to which a permit is subject;(c) the amendment of a permit, including the amendment of any conditions to which a permit is subject;(d) the cancellation or suspension of a permit;(e) a prescribed decision.
PART 8 - Miscellaneous
(1) If a body corporate commits an offence against this Act, each person concerned in the management of the body corporate is taken to have also committed the offence and may be convicted of the offence unless the person shows that –(a) the act or omission constituting the offence took place without the person's knowledge or consent; or(b) the person used all due diligence to prevent that act or omission by the body corporate.(2) A person referred to in subsection (1) may be convicted of an offence against this Act whether or not the body corporate is charged with, or convicted of, the offence.
If an offence against this Act is a continuing offence, a person who commits the offence is liable, in addition to the penalty otherwise prescribed, to a further penalty not exceeding one-fifth of the maximum penalty otherwise prescribed for each day during which the offence continues.
(1) In this section –specified means specified in a certificate referred to in subsection (2) .(2) In any legal proceedings, a document purporting to be a certificate signed by the Secretary and relating to one or more of the following matters is evidence of the facts stated in the certificate:(a) the appointment of an authorised officer under this Act;(b) whether or not a specified person was a permit holder at the specified time;(c) whether or not a specified condition was a condition to which a specified permit was subject at the specified time;(d) whether or not a destruction order was in force at a specified time and the specified details of a destruction order;(e) the amount of costs incurred in the taking of specified action under this Act;(f) whether or not a thing was a GMO at the specified time.
(1) The Governor may make regulations for the purposes of this Act.(2) Without limiting the generality of subsection (1) , the regulations may provide for the waiver of fees.(3) Regulations may be made so as to apply differently according to such factors as are specified in the regulations.(4) The regulations may provide that a contravention of any of the regulations is an offence.(5) The regulations may authorise any matter to be from time to time determined, applied or regulated by the Secretary.(6) Regulations made under this section may contain provisions of a savings or transitional nature consequent on the enactment of this Act or any enactment amending this Act.(7) A provision referred to in subsection (6) may, if the regulations so provide, take effect from the commencement of this Act, or the enactment amending this Act, or from a later day.
Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990 –(a) the administration of this Act is assigned to the Minister for Primary Industries and Water; and(b) the department responsible to that Minister in relation to the administration of this Act is the Department of Primary Industries, Water and Environment.
This Act expires 5 years after it commences, inclusive of the day on which it commences.
The legislation specified in Schedule 1 is amended as specified in that Schedule.
SCHEDULE 1 - Consequential AmendmentsGene Technology Act 2001
1. After section 67 , the following section is inserted in Division 9:67A. Licence subject to Genetically Modified Organisms Control Act 2004
A GMO licence does not authorise the licence holder to deal with a GMO or do any other thing if to do so would contravene the Genetically Modified Organisms Control Act 2004 .
[Second reading presentation speech made in:
House of Assembly on 21 APRIL 2004
Legislative Council on 26 OCTOBER 2004]