Earlier this year, South Australia joined all other mainland Australian states in allowing the commercial cultivation and transportation of Genetically Modified (GM) crops.  With the exception of Kangaroo Island, no individual South Australian areas will remain GM-free from November 2020, despite 11 applications for such designations being made.

Introduction of moratorium

Under the Genetically Modified Crops Management Act 2004 (SA) (GM Act) and Genetically Modified Crops Management Regulations 2008 (SA) (Regulations), South Australia had prohibited the commercial cultivation of GM food crops (Moratorium).  The Moratorium was introduced in 2003 and was due to be in place until 2025.

The rationale for the Moratorium was to allow for a significant period of time in which to evaluate the potential risks GM food crops could pose in regards to access to markets and trade opportunities.

It was estimated that the financial cost of the Moratorium to farmers in South Australia from 2004 to 2018 was between $11 million to $33 million.

Independent review

The Moratorium was renewed by the South Australian government in 2008, 2014 and most recently in 2017.  However in 2018 the Minister for Primary Industries and Regional Development (Minister) commissioned an independent review to consider the continuation of the Moratorium and analyse evidence of market and trade consequences of allowing GM food crops to be grown alongside non-GM crops (Review).  Emeritus Professor Kym Anderson AC from the University of Adelaide’s School of Economics led the Review, which set out the potential benefits and costs of maintaining, partially maintaining or entirely removing the Moratorium.

The majority of the submissions made to the Review favoured the total removal of the Moratorium.

The Review did not consider human health, safety or environmental matters—as these issues are governed by the federal Gene Technology Act 2000 (Cth), which is discussed in more detail below.  Ultimately the Review found evidence to conclude that:

  • GM crops typically require less use of farm chemicals;
  • there has been no actual premium for South Australian grain despite it being the only mainland state with a current Moratorium;
  • the continued existence of the Moratorium, particularly given the removal of GM prohibitions in neighbouring states, has discouraged both public and private investment in South Australia;
  • aligning South Australia with other mainland states will attract and retain research dollars, scientists and post-graduate students; and
  • from a marketing perspective, it is likely only traders of Kangaroo Island grains would benefit if the Moratorium was maintained as Kangaroo Island could retain its access to Japan’s lucrative GM-free grain market.

GM-free designations

Despite the government’s eventual decision to remove the Moratorium, under the Genetically Modified Crops Management (Designated Area) Amendment Act 2020 (GM Designation Act), South Australian councils were given an opportunity to apply for a specific area to be designated GM-free.  The GM Crops Advisory Committee (Committee), established under section 8 of the GM Act, assessed applications and provided advice to the Minister for final determination.

Applications had to demonstrate that:

  • stakeholders in the council area are currently receiving an actual marketing or trade advantage as a result of the GM-free status; and
  • established marketing and trade advantages are only achievable through GM crop prohibitions.

Eleven South Australian councils applied to maintain the GM crop ban in their municipality, but on 2 November 2020, it was determined that none would be recognised as an area where no GM food crops can be grown.  The Committee advised the Minister that no application contained sufficient evidence to demonstrate that compelling marketing and trade conditions existed to warrant a GM-free designation.

Regulatory framework

The Regulations had provided that the whole of South Australia was designated as an area in which no GM food crops could be cultivated.  Now, the GM Act specifies that only Kangaroo Island is a designated GM free zone.

The Regulations have been revoked and the legislation which had extended the Moratorium until 2025—the Genetically Modified Crops Management Regulations (Postponement of Expiry) Act 2017 (SA)—has been repealed.

As for the rest of the Australia, the position in regards to GM crop production of varieties approved by the Office of the Gene Technology Regulator is as follows:

  • No restrictions: Northern Territory, Queensland, Victoria and Western Australia.
  • Partial restrictions: New South Wales (only GM varieties of cotton and canola permitted).
  • Moratorium: Australian Capital Territory and Tasmania (although exemptions for trials are permitted in the ACT).

As mentioned earlier, the Gene Technology Act 2000 (Cth) focuses on the health and safety of people and the environment, but does not consider trade or marketing considerations, which are dealt with under state and territory legislation.

The Gene Technology Regulator administers the Gene Technology Act 2000 (Cth) and ensures there is a nationally consistent legislative scheme through the Gene Technology Agreement, under which each state and territory has committed to maintaining corresponding legislation with the Commonwealth.

For more information or if you need advice on GM technology in your business, please contact a member of Thomson Geer’s National Intellectual Property team for a confidential discussion.

Authors

Andrew Chalet | Partner | +61 3 8080 3542 | [email protected]

Dr Peytee Grusche | Special Counsel | +61 8 9404 9161 | [email protected]

Stephanie McHugh | Lawyer | +61 3 8080 3554 | [email protected]