Summary of this Part


This Part describes the offences relating to unauthorised dealings with GMOs. The Part prohibits dealings with GMOs unless:
  • the person undertaking the dealing is authorised to do so by a GMO licence;
  • the dealing is a notifiable low risk dealing (as described in Part 6, Division 2);
  • the dealing is an exempt dealing; or
  • the dealing is included in the GMO Register.
The Part also sets out the offences for breach of a condition of a GMO licence.
The Part imposes heavier penalties on unlawful dealings that cause, or are likely to cause, significant damage to the health and safety of people or to the environment.

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

Dealings with GMOs must be licensed (Division 2)


This Division creates four main offences:

1. Offence for unauthorised dealings with a GMO

A person must not deal with a thing they know to be a GMO without a licence authorising that dealing2, unless:
    • the dealing is a notifiable low risk dealing3;
    • the dealing has been specifically exempted from the application of the legislation under the regulations 4; or
    • the dealing has been placed on the GMO Register5
Establishing the offence

During consultations on the draft Bill, a number of people expressed concern at the way the offences were drafted, requiring the prosecution to establish knowledge or recklessness before an offence could be established. We have addressed this concern by providing for two levels of offences – one that requires the establishment of knowledge or recklessness and one that does not (a strict liability offence).

This enables the prosecution to pursue lower penalties (refer below) for technical breaches of the legislation (without the necessity to prove knowledge or recklessness) and higher penalties for more serious breaches of the legislation where the Criminal Code requires that knowledge or recklessness be established.

In other words the prosecution can either establish that:
    • the person dealt with the GMO knowing that it is a GMO and the fact that they dealt with the GMO without a licence or without the dealing being a notifiable low risk dealing, exempt dealing or dealing on the GMO Register, is sufficient. It is not necessary to establish that they knowingly or recklessly dealt with the GMO without approval under the legislation; or

    If the prosecution is unable to establish knowledge or recklessness, then the prosecution may pursue a lower penalty (refer below).
    • the person dealt with the GMO knowing that it is a GMO and also knowing that the dealing with the GMO was unauthorised or being reckless as to whether the dealing is so unauthorised.

    If the prosecution can establish such a “mental element” to the offence, then the prosecution may pursue a higher penalty (refer below).

Penalties:Top of page
  • For strict liability offences – 200 penalty units in the case of an aggravated offence and 50 penalty units in any other case.
  • In any other case – 500 penalty units ($55,000 for an individual and $275,000 for a body corporate).
  • If the offence is an aggravated offence (that is, one that causes significant damage, or is likely to cause significant damage, to the health and safety of people or the environment) – 2,000 penalty units6 ($220,000 for an individual and $1.1 million for a body corporate).

2. Offence for breach of conditions of a licence

A holder of a GMO licence is guilty of an offence if they do something, or fail to do something, that results in a breach of a condition of licence. A similar offence exists for persons covered by a GMO licence who do something, or fail to do something, which results in a breach of a condition of licence.

Establishing the offence

As for the offences in relation to unauthorised use of a GMO (detailed above) the offences associated with a breach of a condition of licence are also tiered. That is:
    • in the case of a serious offence - the prosecution would need to establish that the licence holder or the person covered by the licence, intentionally took an action (or failed to take an action) that they knew (or they were reckless as to knowing) contravened a condition of licence. A large penalty could then be imposed; and
    • in the case of a less serious or technical breach – the prosecution would just need to establish that the licence holder took action (or failed to take action) and that contravened the licence. In such a case a penalty could be imposed without the need to establish any “mental element” of knowledge or recklessness.
Penalties:
    • If the offence is an aggravated offence (that is, one that causes significant damage, or is likely to cause significant damage, to the health and safety of people or the environment) – 2,000 penalty units ($220,000 for an individual and $1.1 million for a body corporate)
    • In any other case – 500 penalty units ($55,000 for an individual and $275,000 for a body corporate).
    • For strict liability offences – 200 penalty units in the case of an aggravated offence and 50 penalty units in any other case.
3. Offence for breaching conditions on the GMO Register

A person is guilty of an offence if the person deals with a GMO knowing that it is a GMO, and the dealing is in breach of a condition specified on the GMO Register relating to the dealing.

Establishing the offence

The prosecution must establish that the person dealt with the GMO knowing that it is a GMO. However, strict liability applies in relation to establishing that the dealing is on the GMO Register and that the dealing contravened a condition on the Register. That is, the prosecution does not need to establish that the person knew that the dealing contravened a condition relating to the dealing as specified on the Register.

Penalties
    • In any case – 50 penalty units. The lower penalty recognises that dealings with GMOs are only entered on the GMO Register after a period of licensing and after the GTR is satisfied that any risks are minimal and that it is no longer necessary for the GMO to be licensed directly. As such the penalty for breach of any condition is smaller than the penalties for breach of a condition of licence.

4. Offence relation to notifiable low risk dealings

A person is guilty of an offence if they deal with a GMO knowing that it is a GMO, that the dealing is a notifiable low risk dealing, and that the dealing has been undertaken in contravention of the regulations (which describe the conditions to be observed in relation to notifiable low risk dealings).

Establishing the offence

Strict liability applies in relation to establishing that the dealing is a notifiable low risk dealing and that the dealing was not undertaken in accordance with the conditions prescribed in the regulations. That is, the prosecution only needs to show that the person dealt with the GMO knowing it was a GMO. If what they did was in breach of the regulations, it is not necessary to establish that they knew what they did was in breach or were reckless as to whether it was in breach.

Penalties
    • In any case - 50 penalty units. As for the lower penalties applying to dealings in breach of conditions on the GMO Register, the lower penalty for breach of conditions relating to notifiable low risk dealings recognises that any risks associated with the dealing are minimal.

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


2Part 5 of the Bill describes the licensing process for GMOs.

3 Notifiable low risk dealings are described in Part 6 of the Bill. Notifiable low risk dealings will be prescribed in regulations. A person may undertake notifiable low risk dealings (subject to meeting conditions prescribed in the regulations) without the need to apply for a licence. In essence, notifiable low risk dealings are subject to “class” approvals.

4 Exempt dealings will be prescribed in the regulations. Exempt dealings will be based on the existing GMAC exemptions for very low risk work conducted in contained facilities.

5 The GMO Register is established under Part 6. Dealings with certain GMOs may be entered on the Register if after a period of licensing and monitoring of any risks, the GTR determines that the GMO no longer requires licensing based on the fact that the dealings with the GMO present minimal risk.

6 Where penalties are referenced in this Part, the reference is to the maximum penalty that may be applied. 1 penalty unit is equal to $110.