GENETICALLY MODIFIED CROPS MANAGEMENT (RIGHT TO DAMAGES) AMENDMENT BILL

The Hon. J.S.L. DAWKINS ( 21:27 :57 ): I rise tonight to speak on behalf of the opposition and particularly the shadow minister for agriculture and primary industries, the Hon. David Ridgway, in relation to the Hon. Mr Parnell's bill to amend the GM Crops Management Act 2004 to enable a person who suffers damages as a result of GM plant material contaminating their land to sue companies who own and sell the technology.

It is my understanding that the bill has been introduced as a response to a WA Supreme Court decision that a farmer using GM was not liable for escaping GM canola, despite an economic loss and subsequent organic certification loss suffered by his neighbour. Since the WA moratorium on GM was removed in 2010 there has been pressure on that state government to reinstate it due mainly to a few similar contamination situations.

The Hon. Mr Parnell's bill proposes that it will not be necessary for a plaintiff to establish negligence, therefore farmers will need to prove their innocence when issues of contamination arise. The Hon. Mr Ridgway advises me that the allowable presence for GMs in organic products overseas is 0.9 per cent tolerance, the same as the tolerance levels in Australia and the EU for the presence of GM in conventional crops. However, in Australia organic standards demand nil tolerance for GM material.

At the March election of this year, the Liberal Party committed to continuing to support a moratorium on GM and it also committed to establishing an expert panel to monitor the economic benefits to South Australian farmers of remaining GM free. Since that time, it is worth saying that the Liberal Party and the farming community has condemned minister Bignell for taking such a drastic anti-GM stance. We have urged him to publish the supposed economic benefits of the GM moratorium so that the public and the state in general, but particularly the farming community, can make a more informed decision on its future. With those words, I indicate that the Liberal Party will not be supporting the Hon. Mr Parnell's bill.

The Hon. K.L. VINCENT ( 21:30 :52 ): I indicate very briefly that Dignity for Disability will be supporting the Hon. Mr Parnell's bill in this instance. It seems to us to be a very sensible bill about genetically modified crops, something about which there is significant and considerable concern in the community. We believe in giving what you might call the underdog the chance to defend themselves when they find themselves in a situation where they are disadvantaged. Therefore, we think it is fair to give what you might call the little farmer—although I am sure the Hon. Mr Brokenshire would take much objection to that label—the chance to take on big business and have their say. No‑one is saying that people have to be given compensation, but simply that they should have the right to pursue that. So, we certainly support that aim and commend this bill.

The Hon. K.J. MAHER ( 21:32 :10 ): I will not speak at length on the bill. The Hon. Mark Parnell has put the bill into this place a number of times, in fact I think so many times that no-one is absolutely sure how many times he has put it up before. It is either three or four, I think. You have to admire his tenacity. I think in less polite circles taking the same course of action and hoping for a different result might be called a different thing, but we respect his tenacity for putting it up again. I will not speak for long. The reasons the government will not support this are the same reasons the government has not supported it in the past. As the Hon. John Dawkins has stated, there is cross‑party support for the current moratorium on GM crops and we believe that is sufficient. So, the government will not be supporting the bill at this time, but we look forward to debating it again next year.

The Hon. M.C. PARNELL ( 21:33 :04 ): I would like to thank the Hon. Kelly Vincent and the Dignity for Disability Party for their support for this bill. I would also like to thank the Hon. John Dawkins, on behalf of shadow minister the Hon. David Ridgway, for his contribution on behalf of the opposition and also the Hon. Kyam Maher for the government. I will say that I am disappointed that despite the changes that have taken place in the farming environment and the GM environment over the last few months there is still no appetite for reform amongst the old parties. They still have no appetite to protect South Australian farmers, who can and will suffer economic loss through no fault of their own.

We know that trouble is just around the corner. As has been said, we had the case of Mr Marsh in Western Australia and ultimately the Supreme Court in that state decided that the fault lay with the organic certifying body, that they were too fussy and they should not have stripped him of his organic certification, even though the court acknowledged that he had suffered loss and the loss was directly as a result of the contamination of his land.

We also had the case of Mr Bob Mackley from Duchembegarra, which is north of Natimuk in western Victoria. Just to remind members, that was a situation in 2011 where GM canola blew on to Mr Mackley's property and this contamination prevented him from selling his canola as GM-free and he lost money as a result. Mr Mackley told the ABC:

There's a resistance at the top level of agriculture to even consider that there might be detrimental effects. If you say 'look my neighbour's contamination of my property caused me harm', they just go 'oh well, tough.' I don't see that as being reasonable or fair.

Neither do I; I do not think that is reasonable or fair. When genetically-modified organism contamination happens in South Australia, as it will, the last thing we want is farmer suing farmer for compensation. Yes, someone should be responsible, and that someone should be the owner of the technology, the one who owns, promotes and profits from GM technology. When things go wrong, it is these biotech multinational companies that should be held liable.

This bill makes it crystal clear that a person who suffers economic loss as a result of unwanted contamination from GM crops can recover compensation from the owners of the technology. That means Monsanto and similar companies will be responsible for the impact of their products. They have to back their products the same way that other corporations have to back their products.

I would like at this point just to acknowledge that the minister (Hon. Leon Bignell) did me the courtesy of discussing this with me the other day and told me that the government was not able to support the bill. Whilst there was not much of an inkling of it in the Hon. Kyam Maher's brief response, it seemed clear from my conversations with the minister that there are questions in the minds of government officials about the constitutionality of a provision like this, so I just want to briefly walk members through why this bill is not unconstitutional. Members would be aware that section 109 of our constitution says:

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

In other words, commonwealth law trumps state law, but it is a bit more complex than that, because members would also know that that same argument has been used as a justification for the state not being able to pass other laws, such as laws in relation to same-sex marriage.

Members would know that there is a lot of legal opinion that, if the commonwealth has not attempted to cover the field with its legislation, then the state still has room to legislate. The argument in this case goes that, because we have a commonwealth Gene Technology Act, then the states are somehow precluded from legislating on any aspect of the topic of genetically-modified crops.

For that situation to be true and for that to be a valid viewpoint, it would require an interpretation of the commonwealth Gene Technology Act that it purports to cover the field. When I use that phrase 'cover the field', I am not talking about what Monsanto want to do and that is for all fields to be covered by their products—their Roundup Ready canola, the crops where they own the technology and they own the rights to the chemicals that are required to grow those crops. 'Covering the field' is a legal concept whereby legislation purports to be the final word on a topic.

In constitutional law, under section 109, where the commonwealth has specifically legislated or where it is clear that they have claimed the space exclusively, then the states cannot legislate. They cannot trespass onto an area that is covered by commonwealth law, and the rationale for that is quite simple: we do not want to put citizens in the impossible position of having to break one law in order to comply with another. We want our laws to be consistent and that often requires one jurisdiction to have an exclusive right to legislate.

But in the case here, the commonwealth act does not cover the field and it therefore does not preclude the states and territories from legislating. You have to look at what the commonwealth act says. To answer this question about whether or not the commonwealth act does cover the field, you have to look at what it says about compensation for loss resulting from the escape of GM material, and the answer is: nothing.

It says nothing; it is silent. But if you go back through the legislative and the administrative record, you find that the commonwealth parliament considered covering the field but they decided not to. In fact, if you go to the commonwealth agriculture department paper entitled 'Liability issues associated with GM crops in Australia'—and that is a paper that was published 11 years ago now back in September 2003—you get an insight into the construction of the legislation. The department said:

When drafting the Gene Technology Act 2000…the legislature considered liability issues associated with GMOs and chose not to implement a specific liability regime for damage caused by GMOs…where the activities of one farmer affect a neighbour, recourse is to existing statute and common law.

So the commonwealth law does not evince a legislative intention to cover the field. That means that the state can legislate in relation to liability for damage that is sustained by innocent farmers as a result of escaped GM material. It is not in the commonwealth act; therefore, we are entitled to put it in our act. We do not have a legal problem; what we have is a problem of political will.

I am disappointed that the bill will not pass this time, but as a parliament we cannot just put our heads in the sand and pretend there is no problem. I have no doubt that this bill, or a variant of it, will be back. What I dearly hope is that when it does come back it will not be in the shadow of South Australian farmers losing income as a result of contamination from GM crops across the border in Victoria.

That is the scenario, and it is not just a likelihood. I think it is an absolute certainty that it will happen in coming years. When it does, and when South Australian farmers lose money, they are going to come crying to the parliament saying, 'You should have protected us.' The best I will be able to do is point to the old parties and say, 'Well, they had plenty of opportunities to fix this and they rejected every one.' Given the hour and the fact that major parties have put their positions on the record I will not be dividing on it, but I am disappointed that this bill will not pass tonight.

Second reading negatived.