Mechanically, the Act prohibits commercial cultivation in New South Wales of any licensed genetically modified (GM) food plant unless the Minister approves it for commercial cultivation or an exemption is granted for experiments (ss 6, 7A, 8).
The Act sets an industry-led application route with Expert Committee advice, grants inspectors and the Minister powers to test, seize or direct destruction, attaches criminal penalties, and makes owners liable for testing and compliance costs (ss 7A, 13, 14, 19, 16, 7).
This Act imposes a statutory moratorium on the commercial cultivation of genetically modified (GM) food plants in New South Wales, establishes administrative and enforcement machinery to police that moratorium, and creates processes by which certain licensed GM food plants may be authorised for commercial cultivation or exempted for experimental purposes. The object is stated as regulating (a) the commercial cultivation of licensed GM food plants and (b) experiments on licensed GM food plants in New South Wales for marketing purposes (s 3). The central prohibition is in s 6: cultivation of a licensed GM food plant in NSW is unlawful unless either (i) the plant has been approved for commercial cultivation under s 7A, or (ii) cultivation is permitted by an exemption order under s 8.
The Act creates criminal offences (and civil enforcement paths) for unauthorised cultivation, failures to comply with ministerial directions, improper disposal or transfer of suspect plants, failure to notify the Secretary about suspected contraventions, obstructing inspectors, and furnishing false information (ss 7, 15, 20, 21, 30). Maximum penalties for major offences are high: for corporations 1,250 penalty units; for individuals 500 penalty units or up to 2 years imprisonment (see ss 7, 15, 20). Inspectors and authorised officers are empowered to enter and inspect premises, take samples, seize and detain material, require production of records and information, and require persons to answer questions (Pt 3, esp ss 22-26, 29).
Decisions that authorise cultivation , the Minister’s approval under s 7A and exemption orders under s 8 , are to be notified publicly and entered on a register maintained by the Department (ss 9, 12). The Minister must obtain advice from the Expert Committee on Gene Technology (s 13) before making an approval under s 7A, and may impose conditions on exemption orders (s 8). The Act provides for ministerial directions where a tested plant is found to be a GM food plant (s 14), and a narrowly framed appeal to the Supreme Court against such directions (s 17). Numerous provisions limit judicial review or challenge to orders and ministerial decisions arising under the Division containing the moratorium (s 11; s 7A(11); s 18). The Act also contains a statutory bar on compensation being payable by the Crown for anything authorised under the Act (s 33) and a special protection from liability for owners or occupiers where GM plants have spread to their land without their knowledge (s 32A).
Current sections
Direct links to the current provisions in Gene Technology (GM Crop Moratorium) Act 2003.
The object of this Act is to establish a regime to regulate—
(a) the commercial cultivation of licensed GM food plants, and
(b) the conduct of experiments on licensed GM food plants,
in New South Wales for marketing purposes.
s 3: Subst 2007 No 86, Sch 1 [1].
4
Definitions
4 Definitions
4 Definitions
(1) In this Act—
approved GM food plant means a GM food plant approved for commercial cultivation under section 7A.
cultivate a plant, includes plant, tend, nurture or harvest the plant.
deal with, in relation to a crop or GM food plant, has a meaning that corresponds to deal with, in relation to a GMO, under the Gene Technology Act 2000 of the Commonwealth.
Department means Regional NSW.
director of a corporation means a person who is a director of the corporation within the meaning of the Corporations Act 2001 of the Commonwealth.
exemption order means an order in force under section 8.
exercise a function includes perform a duty.
Expert Committee means the New South Wales Expert Committee on Gene Technology established under section 13.
inspector means an inspector appointed under section 22.
licensed GM food plant means a GM food plant in respect of which a GMO licence is in force authorising dealings with the GM food plant that are inherently necessary for commercial cultivation of the GM food plant.
non-GM food plant means a food plant that is not a GM food plant.
plant includes the seed or any part of a plant whether living or dead and whether attached to a plant or not.
relevant industry, in relation to a licensed GM food plant or class of licensed GM food plants, means an industry or sector of an industry dealing with or proposing to deal with the licensed GM food plant or class of licensed GM food plants.
Secretary means the Secretary of the Department.
(2) Notes included in this Act do not form part of this Act.
s 4: Am 2007 No 86, Sch 1 [2] [3]; 2010 No 59, Sch 2.36; 2020 No 30, Sch 2.18[1]–[3].
5
Food plants
5 Food plants
5 Food plants
For the purposes of this Act, a food plant is a species or variety of plant that the Minister is satisfied is, when grown in New South Wales, primarily grown to be used (whether or not after processing) as, or as an ingredient of, food for human consumption.
Part 2
Moratorium on commercial cultivation of GM food plants
Part 2 Moratorium on commercial cultivation of GM food plants
Part 2 Moratorium on commercial cultivation of GM food plants
pt 2, hdg: Subst 2007 No 86, Sch 1 [4].
Division 1
Moratorium
Division 1 Moratorium
Division 1 Moratorium
pt 2, div 1, hdg: Subst 2007 No 86, Sch 1 [5].
6
Moratorium on commercial cultivation of licensed GM food plants
6 Moratorium on commercial cultivation of licensed GM food plants
6 Moratorium on commercial cultivation of licensed GM food plants
The cultivation in New South Wales of a licensed GM food plant is prohibited unless—
(a) the GM food plant has been approved for commercial cultivation under section 7A, or
(b) cultivation of the GM food plant is permitted by an exemption order under section 8.
s 6: Subst 2007 No 86, Sch 1 [6].
7
Offence of contravening prohibition on commercial cultivation of licensed GM food plants
7 Offence of contravening prohibition on commercial cultivation of licensed GM food plants
7 Offence of contravening prohibition on commercial cultivation of licensed GM food plants
A person who cultivates a plant that is a GM food plant in contravention of section 6 knowing that, or being reckless as to whether, the plant is a licensed GM food plant is guilty of an offence.
Maximum penalty—in the case of a corporation, 1,250 penalty units or, in any other case, 500 penalty units or imprisonment for 2 years, or both.
s 7: Subst 2007 No 86, Sch 1 [6]. Am 2018 No 25, Sch 5.20.
7A
Approval of licensed GM food plants for commercial cultivation
7A Approval of licensed GM food plants for commercial cultivation
7A Approval of licensed GM food plants for commercial cultivation
(1) On application by a representative of a relevant industry the Minister may, by order published in the Gazette, declare that a specified licensed GM food plant, or class of licensed GM food plants, is approved for commercial cultivation in all or part of New South Wales.
(2) The application must—
(a) be made in writing, and
(b) address the criteria specified in subsection (3), and
(c) be accompanied by the fee (if any) prescribed by the regulations, and
(d) be supported by documentation verifying the applicant’s status as a representative of the relevant industry concerned.
(3) The Minister must not make a declaration under this section unless the Minister is satisfied that the relevant industry meets the following criteria—
(a) the relevant industry has adequately identified the requirements demanded by key domestic and international markets for the GM food plant,
(b) the relevant industry has identified the threshold levels for the accidental or unintended presence of GM traits in food plants that are acceptable in those key domestic and international markets,
(c) the relevant industry has, or is capable of having, supply chain management processes in place that adequately address those requirements, including (if it is a market requirement that GM food plants and non-GM food plants be segregated) processes to segregate GM food plants and non-GM food plants,
(d) any approvals or any other form of authorisation required by or under any law of the key domestic or international markets relating to the importation of GM food plants have been, or can be, obtained,
(e) the relevant industry meets any other criteria prescribed by the regulations.
(4) Before making a declaration under this section, the Minister must request the Expert Committee to provide advice (not later than 28 days after the request) in relation to whether or not—
(a) the relevant industry meets the criteria referred to in subsection (3), and
(b) the GM food plant is authorised or permitted to be cultivated in another State or a Territory under a law of that State or Territory,
and must take into account any advice provided by the Expert Committee before the end of that 28 day period (the initial request period).
(5) The Minister must (subject to subsections (6) and (7)) determine the application for a declaration within 14 days after the end of the initial request period (the initial determination period).
(6) At any time before the end of the initial determination period, the Minister may request the Expert Committee to provide, within 14 days (the further request period), further advice or information on the matters concerned.
(7) The Minister must (irrespective of whether or not the Expert Committee has provided the further advice or information as requested) determine the application not later than 14 days after the end of the further request period.
(8) Subsection (4) does not limit the factors that the Minister may take into account in deciding whether or not to make a declaration under subsection (1).
(9) An order under this section in relation to a licensed GM food plant is automatically revoked if the GMO licence in respect of the GM food plant is suspended or cancelled by the Regulator under the Gene Technology Act 2000 of the Commonwealth.
(10) An order under this section may be revoked by the Minister only if the Minister is satisfied, after consulting with and taking into account any advice of the Expert Committee, that the relevant industry concerned no longer meets one or more of the criteria referred to in subsection (3).
(11) The Minister’s determination of, or failure or refusal to determine, an application or decision to revoke an order under this section may not be challenged, reviewed, quashed or called into question before any court of law or administrative review body in any proceedings or restrained, removed or otherwise affected by any proceedings.
(12) The Minister is to make public the reasons for making, or revoking, an order under this section.
Editorial note—
For orders under this section see Gazette No 33 of 14.3.2008, p 2267. From April 2021, PCO is no longer updating notes in provisions of in force titles about related gazette notices. To search for related gazette notices, please use the Gazette Search functionality.
s 7A: Ins 2007 No 86, Sch 1 [6].
8
Exemptions from operation of section 6
8 Exemptions from operation of section 6
8 Exemptions from operation of section 6
(1) The Minister may by order published in the Gazette (an exemption order) confer exemptions from the operation of section 6 to permit the cultivation of a licensed GM food plant for the principal purpose of conducting experiments.
(2)–(5) (Repealed)
(6) An exemption may be conferred so as to apply to a specified person or class of persons or within a specified area or in any other specified way. An exemption may be conferred subject to conditions or unconditionally.
(6A) Without limiting subsection (6), an exemption order may be subject to conditions that relate to one or more of the following—
(a) the handling, storage, transport or other use (including destruction or disposal) of any GM food plant that is permitted to be cultivated by the exemption order,
(b) the ongoing use or monitoring of any land on which any such plant has been cultivated.
(6B) (Repealed)
(6C) A person who cultivates, or has cultivated, a GM food plant as permitted by an exemption order must not, without reasonable excuse, contravene, or cause or permit any other person to contravene, any condition to which the exemption order is subject.
Maximum penalty—in the case of a corporation, 1,250 penalty units or, in any other case, 500 penalty units or imprisonment for 2 years, or both.
(6D) A person cannot be prosecuted for both an offence against subsection (6C) and an offence against section 7 in relation to the same act or omission.
(7) The cultivation of a GM food plant as permitted by an exemption order is not prohibited by section 6.
(8) (Repealed)
Editorial note—
For exemption orders published under this section, see Gazette No 147 of 1.12.2005, pp 9857, 9858. From April 2021, PCO is no longer updating notes in provisions of in force titles about related gazette notices. To search for related gazette notices, please use the Gazette Search functionality.
s 8: Am 2004 No 93, Sch 1 [1] [2]; 2007 No 86, Sch 1 [7]–[9].
9
Notification of making an order
9 Notification of making an order
9 Notification of making an order
(1) As soon as practicable after making an order under this Division and publishing it in the Gazette, the Minister must cause notice of the order to be published—
(a) in a manner that the Minister is satisfied is likely to bring the notice to the attention of members of the public generally, and
(b) on the Department’s web page on the Internet, and
(c) in the case of an exemption order that does not apply to the whole State, in a manner that the Minister is satisfied is likely to bring the notice to the attention of members of the public in the area in which the exemption order is to apply.
(1A) In the case of an exemption order, the Minister is to cause details of the precise location of the area of land to which the exemption order relates—
(a) to be published with the notice of the order, and
(b) to be forwarded to each of the following—
(i) the local council for each local government area in which GM food plants are to be cultivated under the order,
(ii) Local Land Services in which GM food plants are to be cultivated under the order,
(iii) any other persons or bodies prescribed by the regulations.
(2) Failure to comply with subsection (1) or (1A) does not invalidate an order.
s 9: Am 2004 No 93, Sch 1 [3] [4]; 2008 No 112, Sch 6.13; 2013 No 51, Sch 7.21; 2018 No 25, Sch 2.12 [1] [2].
10
Commencement of order
10 Commencement of order
10 Commencement of order
An order made under this Division takes effect on the day on which it is published in the Gazette or on a later day specified in the order.
11
Order cannot be challenged
11 Order cannot be challenged
11 Order cannot be challenged
An order made under this Division cannot be challenged, reviewed or called into question in proceedings before any court or tribunal.
12
Secretary to keep register of orders
12 Secretary to keep register of orders
12 Secretary to keep register of orders
(1) The Secretary is to keep a register of the orders made under this Division.
(2) The register is to contain such particulars of each order made under this Division and is to be kept in such manner and form as the Secretary may from time to time determine, subject to the regulations.
(2A) The register is also to contain, in the case of an exemption order, details of the area of land to which the exemption order applies.
(3) The Secretary is to cause the contents of the register to be made available for inspection free of charge by the public at the Department’s head office and on the Department’s website on the Internet.
s 12: Am 2004 No 93, Sch 1 [5]; 2020 No 30, Sch 2.18[4].
13
Expert Committee on Gene Technology
13 Expert Committee on Gene Technology
13 Expert Committee on Gene Technology
(1) The Minister is to establish a New South Wales Expert Committee on Gene Technology.
(2) The Expert Committee is to consist of those persons who represent food plant industries, or who have other appropriate expertise, qualifications or experience that the Minister considers will enable them to make a valuable contribution to the Committee, as are appointed as members of the Committee by the Minister from time to time.
(3) One of the members is to be appointed, in and by the instrument by which the member is appointed, as the independent chairperson of the Expert Committee.
(4) A person appointed by the Minister under this section holds office for the term specified in the instrument of appointment but may be removed from office at any time by the Minister.
(5) The Expert Committee has such functions as are conferred or imposed on it by or under this Act or by the Minister.
(6) In particular, the Expert Committee has the function of evaluating and providing advice and information (if requested to do so by the Minister) on the matters referred to in section 7A within the periods specified in that section.
(7) A member of the Expert Committee is entitled to such allowances in connection with the work of the Expert Committee as the Minister approves in respect of the member.
(8) Subject to the regulations and any directions of the Minister, the Expert Committee is to regulate its own procedure for the calling of meetings and the conduct of its business.
s 13: Am 2006 No 58, Sch 1.13 [1]–[5]. Subst 2007 No 86, Sch 1 [10].
13A
Confidentiality
13A Confidentiality
13A Confidentiality
A member of the Expert Committee must not disclose information obtained in connection with the carrying out of the Committee’s functions under section 13 except in any one or more of the following circumstances—
(a) with the consent of the person from whom the information was obtained,
(b) in connection with the carrying out of those functions,
(c) in accordance with a requirement imposed by or under a law of the State (other than a requirement imposed by a subpoena or other compulsory process) or the Commonwealth.
Maximum penalty—10 penalty units or imprisonment for 3 months, or both.
s 13A: Ins 2007 No 86, Sch 1 [10].
13B
Disclosure of pecuniary interests
13B Disclosure of pecuniary interests
13B Disclosure of pecuniary interests
(1) If—
(a) a member has a direct or indirect pecuniary interest in a matter being considered or about to be considered at a meeting of the Expert Committee, and
(b) the interest appears to raise a conflict with the proper performance of the member’s duties in relation to the consideration of the matter,
the member must, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of the Expert Committee.
(2) A disclosure by a member at a meeting of the Expert Committee that the member—
(a) is a member, or is in the employment, of a specified company or other body, or
(b) is a partner, or is in the employment, of a specified person, or
(c) has some other specified interest relating to a specified company or other body or to a specified person,
is a sufficient disclosure of the nature of the interest in any matter relating to that company or other body or to that person which may arise after the date of the disclosure and which is required to be disclosed under subsection (1).
(3) Particulars of any disclosure made under this section must be recorded by the Expert Committee in a book kept for the purpose and that book must be open at all reasonable hours to inspection by any person on payment of the fee (if any) determined by the Expert Committee.
(4) After a member has disclosed the nature of an interest in any matter, the member must not, unless the Expert Committee otherwise determines—
(a) be present during any deliberation of the Expert Committee with respect to the matter, or
(b) take part in any decision of the Expert Committee with respect to the matter.
(5) For the purposes of the making of a determination by the Expert Committee under subsection (4), a member who has a direct or indirect pecuniary interest in a matter to which the disclosure relates must not—
(a) be present during any deliberation of the Expert Committee for the purpose of making the determination, or
(b) take part in the making by the Expert Committee of the determination.
(6) A contravention of this section does not invalidate any decision of the Expert Committee.
s 13B: Ins 2007 No 86, Sch 1 [10].
Division 2
Enforcement of moratorium
Division 2 Enforcement of moratorium
Division 2 Enforcement of moratorium
pt 2, div 2, hdg: Am 2007 No 86, Sch 1 [11].
14
Minister’s directions
14 Minister’s directions
14 Minister’s directions
(1) The Minister may only take action under this section if the Minister is in possession of a certificate that relates to a plant (the tested plant) and the Minister believes on reasonable grounds that—
(a) the tested plant is a GM food plant, and
(b) the tested plant is not an approved GM food plant or was not cultivated pursuant to an exemption order.
(2) The Minister may give a written direction to a person who is the owner or person having custody or control of the tested plant, or any plant that is or was part of the offending crop, requiring that person to do any of the following—
(a) retain ownership, custody or control of the plant for a specified period,
(b) hold the plant at a particular location for a specified period,
(c) destroy the plant in such manner and within such time as may be specified,
(d) take such other action in relation to the plant as may be specified.
Note—
Section 17 provides for an appeal to the Supreme Court against a direction of the Minister given under subsection (2).
(3) The Minister or an inspector acting under the written authority of the Minister may seize and dispose of or destroy the tested plant and any plant that is or was part of the offending crop and any container in which such a plant is growing or stored, if—
(a) the owner or person having custody or control of the plant has been given a direction under this section and failed to comply with the requirements of the direction, or
(b) the Minister considers that seizure and disposal or destruction of the plant is required urgently.
(4) In order to prevent the contamination of future crops, the Minister may give a written direction to the owner or occupier of land on which the Minister reasonably believes the tested plant or the offending crop has been cultivated, directing that person not to cultivate any plant of a species or variety specified in the direction on the land for such period as is specified.
(5) In this section—
certificate means a certificate referred to in section 19.
offending crop means the crop in which the tested plant has been cultivated.
s 14: Am 2007 No 86, Sch 1 [12] [13].
15
Offence—failure to comply with Minister’s direction
15 Offence—failure to comply with Minister’s direction
15 Offence—failure to comply with Minister’s direction
A person who is given a written direction under this Division must not fail, without reasonable excuse, to comply with the requirements of the direction.
Maximum penalty—in the case of a corporation, 1,250 penalty units or, in any other case, 500 penalty units or imprisonment for 2 years, or both.
16
Costs of complying with Minister’s direction
16 Costs of complying with Minister’s direction
16 Costs of complying with Minister’s direction
(1) A person given a written direction under this Division is liable for any costs incurred in complying with the requirements of the direction.
(2) The owner or person having custody or control of any plant or container that is seized and disposed of or destroyed under section 14 (3) is liable for any costs incurred and any such costs are taken to be a debt due to the Minister from that person.
(3) The owner or person having custody or control of any plant that is the subject of a certificate referred to in section 19 is liable for the costs of the test referred to in that certificate and any such costs incurred by the Minister are taken to be a debt due to the Minister from that person.
(4) In any proceedings for the recovery of any debt referred to in this section, a certificate signed by the Minister stating the amount of the costs and the manner in which they were incurred is evidence of the matters certified.
17
Appeal to Supreme Court
17 Appeal to Supreme Court
17 Appeal to Supreme Court
(1) A person aggrieved by a direction given to the person under section 14 (2) may appeal to the Supreme Court against the direction.
(2) An appeal under this section must be made within 14 days of the direction being given to the person or within such further period as the Supreme Court may allow in a particular case.
(3) An appeal under this section can be made even if the direction appealed against has already been executed.
(4) An appeal under this section does not affect the direction appealed against until the Supreme Court finally determines the appeal.
(5) On the hearing of an appeal, the Supreme Court may do one or more of the following—
(a) make an order reversing, affirming or amending the direction appealed against,
(b) remit the matter back to the Minister for a direction by the Minister in accordance with the order of the Court,
(c) make an order giving a direction that the Minister could give under section 14 (2),
(d) despite section 33, make an order awarding compensation against the Crown in accordance with subsection (7),
(e) make such other order in relation to the appeal as the Court sees fit.
(6) If the Supreme Court gives a direction that the Minister may give under section 14 (2), the direction is taken to be a direction of the Minister under that provision (other than for the purposes of an appeal under this section).
(7) An award of compensation under this section may only be made in relation to losses suffered directly by the person given the direction appealed against and may only be made to the extent that the appeal is successful.
(8) When awarding compensation under this section, the Supreme Court cannot award exemplary or punitive damages or damages in the nature of aggravated damages.
18
Direction cannot be challenged
18 Direction cannot be challenged
18 Direction cannot be challenged
Except as provided by this Division, a direction of the Minister under this Division cannot be challenged, reviewed or called into question in proceedings before any court or tribunal.
19
Certificate is conclusive proof that plant is genetically modified
19 Certificate is conclusive proof that plant is genetically modified
19 Certificate is conclusive proof that plant is genetically modified
(1) For the purposes of this Act, a certificate signed by the person in charge of an approved laboratory stating that—
(a) an approved test has been conducted on a plant, and
(b) the approved test shows that the plant has been genetically modified,
is conclusive proof that the plant has been genetically modified.
(2) In this section—
approved laboratory means—
(a) a laboratory that is accredited by the National Association of Testing Authorities, Australia, or
(b) such other laboratory as may be prescribed by the regulations.
approved test means—
(a) a Polymerase Chain Reaction test, or
(b) such other test as may be prescribed by the regulations.
Division 3
Other offences
Division 3 Other offences
Division 3 Other offences
20
Offence—disposal of offending plants
20 Offence—disposal of offending plants
20 Offence—disposal of offending plants
The owner or person having custody or control of a plant must not do any of the following if the person is aware or has reasonable grounds to suspect that the plant has been cultivated in contravention of section 6 or is or was part of a crop in which a plant was cultivated in contravention of section 6—
(a) transfer ownership, custody or control of the plant,
(b) offer the plant for sale,
(c) offer to supply the plant,
(d) destroy the plant,
(e) move the plant to another location,
except in accordance with a permit issued by the Secretary or a direction under Division 2.
Maximum penalty—in the case of a corporation, 1,250 penalty units or, in any other case, 500 penalty units or imprisonment for 2 years, or both.
s 20: Am 2007 No 86, Sch 1 [14]; 2020 No 30, Sch 2.18[4].
21
Offence—failure to report contravention of section 6
21 Offence—failure to report contravention of section 6
21 Offence—failure to report contravention of section 6
(1) A person who is aware or suspects that a plant has been cultivated in contravention of section 6 must notify the Secretary of the matters in subsection (2) within 2 days of becoming aware or forming that suspicion.
Maximum penalty—20 penalty units.
(2) The Secretary must be notified of the following matters—
(a) the location of the plant,
(b) the name of the owner or occupier of the land on which the plant is located,
(c) the location of the land on which the plant has been cultivated,
(d) the name of the owner or occupier of the land on which the plant has been cultivated,
(e) the basis for the person knowing or suspecting that the plant has been cultivated in contravention of section 6,
(f) contact details for the person,
(g) such other matters as may be prescribed by the regulations.
(3) A person is not required to notify the Secretary of a matter under this section if—
(a) the person has a reasonable excuse for not notifying the Secretary of the matter, or
(b) the person believes on reasonable grounds that the Secretary has already been notified of the matter.
(4) A person who is required to notify the Secretary of a matter under this section is not excused from that requirement because of any duty of confidentiality or other restriction on disclosure and the provision of information in accordance with this section does not constitute a breach of any such duty by that person.
(5) A person who is required to notify the Secretary of a matter under this section is not excused from that requirement because provision of the information may tend to incriminate the person or make the person liable to a penalty.
(6) A notification provided in accordance with this section is not admissible in evidence in any criminal proceedings against the person who provided the notification except proceedings for an offence against this section.
s 21: Am 2007 No 86, Sch 1 [15]; 2020 No 30, Sch 2.18[4].
Part 3
Enforcement
Part 3 Enforcement
Part 3 Enforcement
22
Appointment of inspectors
22 Appointment of inspectors
22 Appointment of inspectors
(1) The Secretary may appoint any officer of the Department, or any person whom the Secretary considers is suitably qualified for the purpose, to be an inspector for the purposes of this Act.
(2) On appointing an inspector under subsection (1), the Secretary must issue to the inspector a certificate of authority that authorises the inspector to exercise the powers conferred on an inspector by this Act.
(b) give the name of the person to whom it is issued, and
(c) state the date, if any, on which it expires, and
(d) describe the nature of the powers conferred and the source of the powers.
s 22: Am 2020 No 30, Sch 2.18[4].
23
Powers of inspectors
23 Powers of inspectors
23 Powers of inspectors
(1) An inspector may at any reasonable time enter and inspect any premises for the purpose of ascertaining whether or not a provision of this Act, or any regulation made under this Act, is being or has been complied with or contravened.
(2) While on premises entered under this section or under the authority of a search warrant under this Part, an inspector may do one or more of the following—
(a) inspect anything that the inspector reasonably believes may provide evidence of an offence against this Act or the regulations,
(b) take, remove and keep for analysis or testing a sample of any plant, or anything the inspector reasonably believes to be a plant,
(c) inspect any records kept on those premises and require any person whom the inspector reasonably believes to have custody or control of those records to produce them for inspection,
(d) require any person on those premises to answer questions or otherwise furnish information in relation to a contravention of this Act or the regulations,
(e) make and take away copies of the whole or any part of any records or other information,
(f) take away and retain, for such period as may be reasonably necessary, any records or other information, or any part of them, in order to make copies of them,
(g) take away and retain any records or other information, if the inspector concerned reasonably believes that the records or information are evidence of an offence against this Act or the regulations, until proceedings for the offence have been disposed of,
(h) seize and detain anything that the inspector reasonably believes may provide evidence of an offence against this Act or the regulations,
(i) place anything seized as referred to in paragraph (h) in a container, or in a room, compartment or cabinet located on the premises where it was seized, and mark, fasten and seal that container or, as the case may be, the door or opening providing access to that room, compartment or cabinet,
(j) take such photographs, films, audio, video and other recordings as the inspector considers necessary.
(3) Anything seized under this section may, at the option of the inspector who made the seizure or another inspector acting in place of that inspector, be detained on the premises where it was found or be removed to other premises and detained there.
(4) Before taking away a record or statement or anything seized under this section, an inspector must tender an appropriate receipt to the person from whom it was taken.
(5) This section does not authorise an inspector to enter any part of premises that is being used for residential purposes except—
(a) with the consent of the occupier, or
(b) under the authority of a search warrant.
(6) An inspector must, when exercising on any premises any function of an inspector under this section, produce the inspector’s certificate of authority if required to do so by the occupier of the premises.
24
Provisions relating to exercise of powers
24 Provisions relating to exercise of powers
24 Provisions relating to exercise of powers
(1) A power conferred by this Act to enter premises, or to make an inspection or take other action on premises, may not be exercised unless the inspector proposing to exercise the power—
(a) is in possession of a certificate of authority, and
(b) gives reasonable notice to the occupier of the premises of the intention to exercise the power, unless the giving of notice would defeat the purpose for which it is intended to exercise the power, and
(c) exercises the power at a reasonable time, unless it is being exercised in an emergency, and
(d) uses no more force than is reasonably necessary to effect the entry or make the inspection.
(2) Despite section 33, if damage is caused by an inspector exercising a power to enter premises, a reasonable amount of compensation is recoverable as a debt owed by the Crown to the owner of the premises unless the occupier obstructed the exercise of the power.
(1) An inspector may, by notice in writing given to a person, require the person to furnish to the inspector such information or records (or both) as the inspector requires by the notice, being information that relates to the question of whether or not this Act or the regulations are being or have been contravened.
(2) A notice under this section—
(a) must specify the manner in which information or records are required to be furnished and a reasonable time by which the information or records are required to be furnished, and
(b) may only require a person to furnish existing records that are in the person’s possession or that are within the person’s power to obtain lawfully.
(3) The inspector to whom any record is furnished under this Part may take copies of it.
(4) If any record required to be furnished under this Part is in electronic, mechanical or other form, the notice requires the record to be furnished in written form, unless the notice otherwise provides.
(5) This section applies whether or not a power of entry under this Act is being or has been exercised.
26
Power of inspectors to require answers
26 Power of inspectors to require answers
26 Power of inspectors to require answers
(1) An inspector may require a person whom the inspector suspects on reasonable grounds to have knowledge of matters in respect of which information is reasonably required for the purposes of this Act to answer questions in relation to those matters.
(2) An inspector may, by notice in writing, require a corporation to nominate, in writing within the time specified in the notice, a director or officer of the corporation to be the corporation’s representative for the purpose of answering questions under this section.
(3) Answers given by a person nominated under subsection (2) bind the corporation.
27
Power to demand name and address
27 Power to demand name and address
27 Power to demand name and address
An inspector may require a person whom the inspector suspects on reasonable grounds to have contravened or to be contravening this Act or the regulations to state his or her full name and residential address.
28
Limitation on self-incrimination
28 Limitation on self-incrimination
28 Limitation on self-incrimination
(1) A person who is required under this Part to answer a question or to produce a thing is not excused from answering the question or producing that thing on the ground that the answer to the question or the production of the thing might tend to incriminate the person or make the person liable to a penalty.
(2) The answer to the question or production of the thing is not admissible in evidence against the person in any criminal proceedings (except proceedings for an offence under section 30 (1)–(3)) if—
(a) the person objected at the time to answering the question or producing the thing on the ground that it might incriminate the person, or
(b) the person was not warned on that occasion that the person may object to answering the question or producing the thing on the ground that it might incriminate the person.
29
Search warrants
29 Search warrants
29 Search warrants
(1) An inspector may apply to an authorised officer for a search warrant for premises if the inspector believes on reasonable grounds—
(a) that a provision of this Act or the regulations is being or has been contravened on the premises, or
(b) that there is on the premises evidence of a contravention of a provision of this Act or the regulations.
(2) An authorised officer to whom such an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an inspector named in the warrant—
(a) to enter and inspect any premises, and
(b) to exercise the powers, or any specified powers, of an inspector under this Part.
(1) A person who, without reasonable excuse, neglects or fails to comply with a requirement made of the person by an inspector under this Act is guilty of an offence.
(2) A person who furnishes any information or makes a statement in purported compliance with a requirement made by an inspector under this Act, knowing that it is false or misleading in a material respect, is guilty of an offence.
(3) A person who, without reasonable excuse, hinders or obstructs an inspector in the exercise of any of the powers conferred by this Act is guilty of an offence.
(4) A person who, without reasonable excuse, removes or tampers with anything that has been seized under this Act is guilty of an offence.
(5) A person who, without reasonable excuse, removes or tampers with any sample taken under this Act is guilty of an offence.
(6) A person is not guilty of an offence of failing to comply with a requirement made by an inspector unless it is established by the prosecutor that the inspector concerned warned the person that a failure or refusal to comply with the requirement was an offence.
(7) A person is not guilty of an offence of hindering or obstructing an inspector in the exercise of the inspector’s powers at any premises unless it is established by the prosecutor that—
(a) the inspector concerned produced at the relevant time the certificate of authority issued to the inspector under this Part, and
(b) the person was informed by the inspector concerned, or otherwise knew, that the inspector was empowered to exercise the power to which the offence relates.
Maximum penalty—10 penalty units or imprisonment for 3 months, or both.
31
Disposal of seized items
31 Disposal of seized items
31 Disposal of seized items
(1) Any item seized under this Act is forfeited to the Crown and may be destroyed or disposed of in such manner as the Minister directs.
(2) However, if—
(a) any seized item is forfeited to the Crown under this section, and
(b) the Minister is satisfied that there has been no contravention of this Act or the regulations in relation to the seized item, and
(c) the seized item has not been disposed of or destroyed in a manner that would prevent it from being dealt with in accordance with this subsection,
the Minister must immediately cause the seized item to be delivered to such person as appears to the Minister to be the person who would, but for the forfeiture, have been entitled to it.
(3) If any seized item is delivered to a person in accordance with subsection (2), such proprietary and other interests as existed immediately before the forfeiture are revived.
32
Injunctions to prevent contravention of Act
32 Injunctions to prevent contravention of Act
32 Injunctions to prevent contravention of Act
(1) If a person has contravened, is contravening or is proposing to contravene a provision of this Act, the Supreme Court may, on the application of the Minister, grant an injunction restraining the person from doing so or requiring the person to do any act or thing necessary to avoid or remedy the contravention.
(2) The Court may, before considering the application, grant an interim injunction restraining the person from engaging in conduct pending the determination of the application.
(3) The Court may rescind or vary such an injunction or interim injunction.
(4) The Minister is not to be required to give any undertaking as to damages or costs in respect of an application under this section.
Part 4
Miscellaneous
Part 4 Miscellaneous
Part 4 Miscellaneous
32A
Special protection from liability for spread of GM food plants
32A Special protection from liability for spread of GM food plants
32A Special protection from liability for spread of GM food plants
(1) If—
(a) a GM food plant is present on any land, and
(b) the existence of the GM food plant on the land is attributable to the spread, dissemination or persistence of the GM food plant, and
(c) the original introduction of that GM food plant to the land was not knowingly undertaken by or on behalf of any person who is, or who has been, an owner or occupier of the land,
no action may be brought in a New South Wales court or under a New South Wales law against a person who is an owner or occupier of the land on account of the fact that the GM food plant is present on the land or that the person has dealt with the GM food plant.
(2) Subsection (1) does not apply if the relevant court is satisfied—
(a) that a person who is an owner or occupier of the relevant land has deliberately dealt with a crop knowing that GM food plant was present in order to gain a commercial benefit, and
(b) that, in the interests of justice, another person’s rights with respect to that GM food plant should be recognised or protected.
(3) This section extends to any case where a GM food plant was present on land before the commencement of this section.
s 32A: Ins 2007 No 86, Sch 1 [16].
33
No compensation payable
33 No compensation payable
33 No compensation payable
(1) Compensation is not payable by or on behalf of the Crown in relation to anything that is authorised by or under this Act.
(2) In this section—
compensation includes damages or any other form of monetary compensation.
the Crown means the Crown within the meaning of the Crown Proceedings Act 1988, and includes an officer, employee or agent of the Crown.
34
Summary proceedings for offences
34 Summary proceedings for offences
34 Summary proceedings for offences
(1) Proceedings for an offence against this Act or the regulations may be dealt with—
(a) summarily before the Local Court, or
(b) summarily before the Supreme Court in its summary jurisdiction.
(2) If proceedings are brought in the Local Court, the maximum monetary penalty that the Local Court may impose for the offence is 100 penalty units or such other amount as may be prescribed by the regulations, despite any higher maximum monetary penalty provided in respect of the offence.
s 34: Am 2007 No 94, Sch 2.
35
Penalty notices
35 Penalty notices
35 Penalty notices
(1) An authorised officer may issue a penalty notice to a person if it appears to the officer that the person has committed a penalty notice offence.
(2) A penalty notice offence is an offence against this Act or the regulations that is prescribed by the regulations as a penalty notice offence.
(3) The Fines Act 1996 applies to a penalty notice issued under this section.
Note—
The Fines Act 1996 provides that, if a person issued with a penalty notice does not wish to have the matter determined by a court, the person may pay the amount specified in the notice and is not liable to any further proceedings for the alleged offence.
(4) The amount payable under a penalty notice issued under this section is the amount prescribed for the alleged offence by the regulations (not exceeding the maximum amount of penalty that could be imposed for the offence by a court).
(5) This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences.
(6) In this section—
authorised officer means—
(a) an inspector, or
(b) a person who is declared by the regulations to be an authorised officer for the purposes of this section or who belongs to a class of persons so declared.
s 35: Subst 2017 No 22, Sch 3.30.
36
Onus of proof concerning reasonable excuse
36 Onus of proof concerning reasonable excuse
36 Onus of proof concerning reasonable excuse
In any proceedings for an offence against a provision of this Act or the regulations, the onus of proving that a person had a reasonable excuse (as referred to in the provision) lies with the defendant.
37
Offences by corporations
37 Offences by corporations
37 Offences by corporations
(1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each executive officer of the corporation is taken to have contravened the same provision if the person knowingly authorised or permitted the act or omission constituting the offence.
(2) A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or been convicted under that provision.
(3) Nothing in subsection (1) prejudices or affects any liability imposed by a provision of this Act or the regulations on any corporation by which an offence against the provision is actually committed.
38
Delegation
38 Delegation
38 Delegation
(1) The Minister may delegate to the Secretary, or to an authorised person, the exercise of any of the Minister’s powers under this Act or the regulations, other than the power to make an order under Division 1 of Part 2, the power to give a direction or authorisation under section 14 and this power of delegation.
(2) The Secretary may delegate to an authorised person the exercise of—
(a) any of the functions delegated to the Secretary by the Minister, or
(b) any of the other functions of the Secretary under this Act or the regulations, other than this power of delegation.
(3) In this section, authorised person means—
(a) a member of staff of the Department, or
(b) any person of a class prescribed by the regulations.
s 38: Am 2020 No 30, Sch 2.18[4].
39
Describing plants
39 Describing plants
39 Describing plants
For the purposes of this Act, a plant may be described by its scientific name, its common name or in any other way.
40
Savings, transitional and other provisions
40 Savings, transitional and other provisions
40 Savings, transitional and other provisions
Schedule 1 has effect.
41
41
41 (Repealed)
42
Regulations
42 Regulations
42 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) The regulations may create offences punishable by a penalty not exceeding 100 penalty units.
43
Expiry of Act
43 Expiry of Act
43 Expiry of Act
This Act expires on 1 July 2021.
s 43: Am 2005 No 81, sec 3; 2007 No 86, Sch 1 [17]; 2011 No 17, sec 3.
Schedule 1
Savings, transitional and other provisions
Schedule 1 Savings, transitional and other provisions
Schedule 1 Savings, transitional and other provisions
(Section 40)
sch 1: Am 2004 No 93, Sch 1 [6] [7]; 2007 No 86, Sch 1 [18] [19].
Schedule 2
Schedule 2
Schedule 2 (Repealed)
sch 2: Rep 2006 No 58, Sch 4.
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
Part 1 Preliminary
1 Name of Act
1 Name of Act
1 Name of Act
This Act is the Gene Technology (GM Crop Moratorium) Act 2003.
2 Commencement
2 Commencement
2 Commencement
(1) This Act commences on the date of assent, except as provided by subsection (2).
(2) Schedule 2.1 and 2.3 commence on the commencement of Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002.
3 Object of Act
3 Object of Act
3 Object of Act
The object of this Act is to establish a regime to regulate—
(a) the commercial cultivation of licensed GM food plants, and
(b) the conduct of experiments on licensed GM food plants,
in New South Wales for marketing purposes.
s 3: Subst 2007 No 86, Sch 1 [1].
4 Definitions
4 Definitions
4 Definitions
(1) In this Act—
approved GM food plant means a GM food plant approved for commercial cultivation under section 7A.
cultivate a plant, includes plant, tend, nurture or harvest the plant.
deal with, in relation to a crop or GM food plant, has a meaning that corresponds to deal with, in relation to a GMO, under the Gene Technology Act 2000 of the Commonwealth.
Department means Regional NSW.
director of a corporation means a person who is a director of the corporation within the meaning of the Corporations Act 2001 of the Commonwealth.
exemption order means an order in force under section 8.
exercise a function includes perform a duty.
Expert Committee means the New South Wales Expert Committee on Gene Technology established under section 13.
food plant has the meaning given by section 5.
function includes a power, authority or duty.
Notably, the Act contains an express expiry clause: it expires on 1 July 2021 (s 43). That is a factual element of the instrument as provided and, absent later amending or saving provisions in the source supplied, means the statutory regime had a programmed end-date in the act text.
Throughout the Act, definitions and cross‑references integrate Commonwealth law and standards: key terms align with the Commonwealth Gene Technology Act 2000 (definition of gene technology, GMO licence, deal with, s 4), scientific testing relies on accredited laboratories and approved tests (s 19), and search-warrant procedures cross-refer to the Law Enforcement (Powers and Responsibilities) Act 2002 (s 29). The Act contains transitional and savings provisions (Schedule 1) and a framework for regulations that may prescribe further offences and operational detail (s 42).
Main concepts
The Act is built around a small set of interlocking legal concepts that determine rights and liabilities.
Moratorium on commercial cultivation (s 6). The statutory starting point is a prohibition on cultivation of a licensed GM food plant unless there is a positive authorisation under s 7A or an exemption order under s 8. "Licensed GM food plant" is defined as a GM food plant in respect of which a GMO licence (Commonwealth) authorises dealings necessary for commercial cultivation (s 4). The moratorium therefore sits on top of Commonwealth licensing: a GM food plant may be licensed federally but still be prohibited for commercial cultivation in NSW unless the State authorises it under s 7A or s 8.
Approval pathway (s 7A). A representative of the "relevant industry" may apply to the Minister to declare a specified licensed GM food plant or class of plants approved for commercial cultivation. The application must address market-related criteria (s 7A(2)-(3)): identification of market requirements, acceptable thresholds for adventitious presence of GM traits, supply-chain segregation capability, and import authorisations in key markets. The Minister must seek Expert Committee advice within defined timeframes (s 7A(4)-(7)). A declaration is revocable if industry no longer meets criteria after consultation with the Expert Committee (s 7A(10)). The Minister’s determination (or failure/refusal) on such applications is expressly immune from challenge (s 7A(11)), and reasons must be published (s 7A(12)).
Exemption pathway for experiments (s 8). The Minister may make exemption orders to permit cultivation for the principal purpose of conducting experiments; exemptions may be limited by person, area, or conditions (s 8(1), (6)). Conditions may cover handling, storage, transport, destruction and ongoing monitoring of land (s 8(6A)). Breach of exemption conditions is an offence (s 8(6C)).
Expert Committee (s 13). The Minister must establish an Expert Committee to advise on matters under s 7A. Members represent food plant industries or possess other relevant expertise and are appointed and removable by the Minister (s 13(1)-(4)). The Committee may be paid allowances and regulates its procedure subject to regulations and Ministerial directions (s 13(7)-(8)). Confidentiality (s 13A) and pecuniary-interest disclosure rules (s 13B) apply to members.
Enforcement architecture (Part 3). Inspectors appointed by the Secretary possess wide investigatory powers: entry and inspection, sampling, seizure, record production, and questioning (ss 22-27). Search warrants are available under s 29, with cross-reference to Div 4 Pt 5 of LEPRA. Ministerial directions permit retention, holding, destruction of tested plants and land-use restrictions to prevent future contamination (s 14). Certificates from approved laboratories are conclusive proof that a plant is genetically modified (s 19).
Offences and penalties. The Act creates a hierarchy of offences: contravening the moratorium knowingly or recklessly (s 7); failing to comply with directions (s 15); improper disposal or movement of suspected offending plants (s 20); failure to notify (s 21); obstructing inspectors and providing false information (s 30). Penalties scale up to large monetary amounts and custodial sentences (ss 7, 15, 20, 30). Corporate liability extends to executive officers who knowingly authorised or permitted contraventions (s 37).
Limitations on judicial review, costs and compensation. Orders under the moratorium and directions are largely insulated from judicial review or challenge (s 11; s 18). The Act makes those subject to ministerial discretion largely final, save for the specific Supreme Court appeal route for directions under s 14 (s 17). Costs of compliance, testing and destruction are recoverable as debts owed to the Minister from the owner or person in control (s 16). The Crown is not liable to pay compensation in respect of anything authorised under the Act (s 33).
Liability shield for innocent landholders (s 32A). The Act bars actions against owners or occupiers for presence of GM food plants on their land where the presence is due to spread and the original introduction was not knowingly by or on behalf of the owner/occupier; exceptions exist where the owner knowingly dealt with the crop to obtain commercial benefit and a court considers recognising another person’s rights necessary in the interests of justice.
These concepts interact to create a regime that operates as a State-level control layer on top of Commonwealth GMO licensing, focused explicitly on marketing and market access considerations (s 3). The regime is decision-centric: ministerial orders, exemption orders and directions trigger civil and criminal obligations, and investigators have broad powers to enforce compliance.
Who it affects
The Act's operation touches a range of actors in agriculture, government, regulation and supply chains. Explicitly affected entities and persons include:
Producers and landholders. The primary subjects of the moratorium are owners and occupiers of land and persons who cultivate plants (s 6; definitions in s 4 and s 5). Owners or persons with custody or control of plants face duties to comply with ministerial directions (s 14(2), s 15), may be liable for costs of testing and destruction (s 16), must not transfer or dispose of plants suspected to be unlawfully cultivated except under permit or direction (s 20), and have notification obligations when they are aware or suspect a contravention (s 21).
Relevant industries and representative bodies. The approval pathway under s 7A is triggered only on application by a representative of a "relevant industry" as defined in s 4. The applicant must show it represents the industry or sector proposing to deal with the licensed GM food plant. Industry bodies seeking commercial cultivation must therefore present documentation verifying representative status and address market-oriented criteria (s 7A(1)-(3)).
Corporations and executive officers. Corporations face corporate-level penalties and special provisions applying liability to executive officers who knowingly authorised or permitted contraventions (s 37). The Act’s penalty structure separately lists corporate maxima (e.g. 1,250 penalty units in ss 7, 15, 20) and individual maxima, including imprisonment where applicable.
Government actors and advisers. The Minister holds power to declare approvals (s 7A), make exemption orders (s 8), and give directions in the enforcement Division (s 14). The Secretary of the Department (Regional NSW) keeps the register of orders (s 12), appoints inspectors (s 22), issues certificates of authority (s 22(2)), and may issue permits for disposal under s 20 (implied). The Expert Committee on Gene Technology advises the Minister on s 7A matters (s 13). Inspectors and authorised officers exercise investigatory powers across the regulated population (Pt 3).
Local government and land-services bodies. Notification obligations for exemption orders require the Minister to forward precise location details to local councils and Local Land Services for each local government area affected (s 9(1A)(b)). Those bodies are therefore recipients of information and potentially involved in local implementation or surveillance.
Laboratories and testing agencies. The Act accords conclusive status to certificates from "approved laboratories" and "approved tests" (s 19). Approved laboratories may include NATA-accredited labs (s 19(2)(a)) or others prescribed by regulations, and approved tests must include PCR or a prescribed alternative (s 19(2)(b)). Those bodies therefore have a gatekeeping role in triggering enforcement action under the Act.
Supply-chain participants and market actors. S 7A(3)(a)-(c) frames approval around market requirements, thresholds for adventitious presence in food plants, and supply-chain segregation capability. Processors, exporters and supermarkets whose market rules require segregation or low thresholds will be affected by whether an industry can demonstrate compliance with those requirements to the Minister.
Insurers, legal advisers and lenders. The combination of limited Crown compensation (s 33), seizure and forfeiture powers (s 31), and a statutory bar on actions against innocent landholders (s 32A) alters risk allocations that advisers, insurers and banks must assess when taking security over agricultural land or processing facilities.
Members of the public and complainants. Anyone aware or suspecting that a plant has been unlawfully cultivated must notify the Secretary within two days (s 21(1)). The Act thus imposes a reporting obligation on the public to assist enforcement, subject to limited immunities for the notifier (s 21(4)-(6)).
In short, the Act affects upstream producers, industry representative bodies seeking approvals, government decision-makers and enforcers, supply-chain actors concerned with segregation and market access, and third parties who may report suspected contraventions. The Act’s design places particular weight on representative industry applicants and the Minister/Expert Committee decision‑making node (s 7A, s 13), while enforcement burdens fall heavily on landholders, owners, and corporations operating at the farm-level.
Key duties and rights
The Act imposes duties and confers limited rights across public and private actors. Key duties and corresponding rights are:
Duties on producers and persons in control of plants
Duty not to cultivate licensed GM food plants without approval or exemption (s 6). This is the primary prohibition.
Duty to comply with written directions from the Minister in respect of a "tested plant" or "offending crop" (s 14(2)). Directions may require holding, retaining, destruction, or other specified actions (s 14(2)(a)-(d)). Failure to comply without reasonable excuse is an offence (s 15).
Duty to bear costs of complying with directions, costs of seizure and destruction, and costs of testing where the plant was subject to a certificate (s 16(1)-(3)). Those costs are recoverable as a debt to the Minister (s 16(2)-(3)).
Duty not to dispose or transfer an offending plant (s 20), except under permit issued by the Secretary or under a Ministerial direction (s 20). This includes prohibition on offering for sale, supply, destruction (except under authorisation) or removal (s 20(a)-(e)).
Duty to notify the Secretary within two days if a person becomes aware or suspects a contravention of s 6, providing specified details (s 21(1)-(2)). The duty is subject to exceptions including reasonable excuse and belief that the Secretary has already been notified (s 21(3)).
Duty not to contravene conditions of an exemption order (s 8(6C)).
Duties on members of Expert Committee
Duty of confidentiality: members must not disclose information obtained in connection with the Committee’s functions except as allowed (consent, carrying out functions, or legal requirement) (s 13A). Breach attracts penalty (10 penalty units or imprisonment for 3 months) (s 13A).
Duty to disclose pecuniary interests and to absent themselves from participation where a conflict arises (s 13B(1)-(5)). Disclosures are recorded and open for inspection on payment of a fee (s 13B(3)).
Powers and rights of the Minister and Secretary
Power to approve licensed GM food plants for commercial cultivation by order on application by a representative of a relevant industry, subject to specified criteria and Expert Committee advice (s 7A(1)-(7)).
Power to make exemption orders to permit experimental cultivation, with conditions and the ability to limit by person, area, or other specified means (s 8(1), (6)).
Power to give written directions in specific circumstances based on a certificate indicating a tested plant is genetically modified (s 14(1)-(2)).
Power to seize and dispose of or destroy plants and containers if a direction is not complied with or if seizure is urgently required (s 14(3)).
Duty to maintain and publish a register of orders and to publicise orders in a manner likely to bring them to public attention including website publication (s 9(1), s 12(1)-(3)).
Rights of persons subject to directions
Right to appeal a direction under s 14(2) to the Supreme Court within 14 days (s 17(1)-(2)). The appeal can be made even if the direction has already been executed (s 17(3)), but does not stay the direction pending final determination (s 17(4)).
Rights on appeal include the Court’s ability to reverse, affirm, amend, remit, or give directions the Minister could have given (s 17(5)(a)-(c)). The Court can also award compensation against the Crown to the limited extent provided (s 17(5)(d); s 17(7) and (8)).
Limited right to judicial review
The Act contains explicit bars on judicial review: an order under the Division containing the moratorium cannot be challenged (s 11); directions under the enforcement Division cannot be challenged except by the limited appeal route in s 17 (s 18). Also, the Minister’s determinations under s 7A are expressly not subject to challenge or review (s 7A(11)). These provisions restrict conventional administrative review channels for many decisions under the Act.
Investigatory and enforcement powers
Inspectors have rights to enter premises at reasonable times, inspect items, take samples, require production of records, require persons to answer questions, and seize and detain items (ss 22-26, s 23(1)-(2)). Entry to residential premises requires consent or a search warrant (s 23(5)).
Search warrants may be issued under s 29 with reference to LEPRA procedures (s 29(2)-(3)).
Evidence and procedural protections
A certificate from an approved laboratory certifying an approved test showing genetic modification is conclusive proof (s 19(1)). Approved labs include NATA-accredited labs (s 19(2)(a)); approved tests include PCR (s 19(2)(b)).
Self-incrimination is limited: persons must answer questions and produce documents when required (s 28(1)), but answers or produced material are inadmissible in criminal proceedings against the person except for offences under ss 30(1)-(3) (s 28(2)).
Other operational duties and limitations
The Secretary must keep a public register of orders (s 12) and publish reasons for making or revoking an order under s 7A (s 7A(12)).
The Act makes clear that compensation is not payable by the Crown in relation to anything authorised by or under the Act (s 33).
These duties and rights allocate significant regulatory power to the Minister and the Secretary, while creating compliance obligations and criminal exposure for landholders, industry actors and corporations. The Act also builds in procedural constraints on court-based challenges to many of those executive decisions.
Penalties and enforcement
The Act combines criminal sanctions, civil enforcement mechanisms, administrative orders and investigatory powers. Penalties and enforcement mechanisms are distributed as follows:
Criminal penalties
Contravention of the moratorium (cultivating a licensed GM food plant knowing that, or being reckless, that it is a licensed GM food plant) is an offence with maximum penalties of 1,250 penalty units for a corporation, or 500 penalty units or imprisonment for 2 years, or both, for an individual (s 7). The offence is knowledge or recklessness-based.
Failure to comply with a Minister’s written direction is an offence with the same maximum penalties as s 7 (s 15).
Offences relating to disposal or movement of plants (if aware or having reasonable grounds to suspect unlawful cultivation) attract the same maximum penalties for corporations and individuals (s 20).
Obstruction, failure to comply with inspector requirements, making false statements or tampering with seized items attract a maximum penalty of 10 penalty units or imprisonment for 3 months, or both (s 30(1)-(5); s 30 maximum penalty).
Failure to notify the Secretary under s 21 is a penalty notice offence with a maximum penalty of 20 penalty units (s 21(1)).
Enforcement powers and mechanisms
Ministerial directions (s 14) provide a primary administrative enforcement tool to require retention, holding, destruction, or other action in respect of tested plants or offending crops and to direct landholders not to cultivate specified species or varieties for a period to prevent future contamination (s 14(2), (4)). The Minister may seize and destroy plants under s 14(3) where directions are not complied with or urgent seizure is required.
Inspectors (appointed under s 22) have broad investigatory powers: enter premises at reasonable times, inspect, take samples (s 23(2)(b)), inspect and copy records (s 23(2)(c), (e)), require persons to answer questions (s 23(2)(d)), seize items (s 23(2)(h)), photograph, film and otherwise record (s 23(2)(j)). Entry to residential premises requires occupier consent or a search warrant (s 23(5)).
Search warrants may be issued under s 29 on application to an authorised officer under LEPRA standards, allowing inspectors to exercise specified powers under the Part (s 29(1)-(3)).
Inspectors may require information and records by written notice (s 25), and may require corporations to nominate a representative to answer questions (s 26(2)-(3)). The Act also limits claims of self-incrimination when answering inspector questions or producing documents, but with specified admissibility restrictions (s 28).
Forfeiture and disposal
Anything seized under the Act is forfeited to the Crown and may be destroyed or disposed of as the Minister directs (s 31(1)). If the Minister later determines there was no contravention and the seized item is still capable of being returned, it must be delivered to the person who would have been entitled to it (s 31(2)-(3)).
Civil relief and injunctions
The Minister may apply to the Supreme Court for injunctions to prevent contraventions or to remedy them; the Court may grant interim injunctions and vary or rescind them, and does not require the Minister to give undertakings as to damages (s 32(1)-(4)). This provides a civil tool for immediate restraint.
Administrative sanctions and notices
The Act provides for penalty notices (on-authorised officers including inspectors) for offences prescribed as penalty notice offences by regulation; the Fines Act 1996 applies to penalty notices (s 35). Regulations may prescribe specific penalty notice offences and amounts up to statutory limits (s 35(2), (4)).
Costs recovery and onus
Costs incurred in complying with a direction, costs for testing under a certificate, and costs related to seized and destroyed plants are recoverable as debts due to the Minister from the owner or person in control (s 16(1)-(3)). A certificate signed by the Minister stating the amount is evidence of those matters in recovery proceedings (s 16(4)).
The defendant bears the onus of proving reasonable excuse in prosecutions (s 36).
Limits on review and compensation
Orders under the moratorium Division cannot be challenged in court or tribunal (s 11). Directions under the enforcement Division cannot be challenged except by the limited appeal to the Supreme Court (s 17); otherwise s 18 restricts challenge. The Minister’s determinations under s 7A are not subject to challenge or review (s 7A(11)).
Compensation by the Crown is barred for anything authorised by or under the Act (s 33(1)). On appeal under s 17 the Supreme Court may award compensation against the Crown only for losses directly suffered and only to the extent the appeal is successful, excluding exemplary, punitive or aggravated damages (s 17(7)-(8)).
Evidentiary shortcuts
A certificate from an approved laboratory that an approved test shows a plant has been genetically modified is conclusive proof for purposes of the Act (s 19(1)). This shifts evidentiary burden in enforcement proceedings.
Practical enforcement implications
Enforcement combines preventative and reactive tools: preventive controls via moratorium and approvals, surveillance and testing by inspectors, reactive measures via ministerial directions, seizure and destruction, penalties and civil injunctions, and financial deterrence through cost recovery. The Act concentrates substantial discretion in the Minister and inspectors and attaches immediate and potentially significant financial and criminal exposure to those operating on the land.
How it interacts with other laws
The Act expressly integrates and cross-references several Commonwealth and State statutory regimes and standards. Key interactions evident in the text include:
Interaction with Commonwealth gene technology framework
Definitions and licensing interplay: the Act adopts meanings from the Commonwealth Gene Technology Act 2000 for "gene technology", "GMO licence", and "deal with" (s 4). A "licensed GM food plant" under this Act is defined in terms of a GMO licence in force authorising dealings inherently necessary for commercial cultivation (s 4). Section 7A(9) ties state approval to federal licensing status by providing for automatic revocation of a s 7A order if the Regulator under the Commonwealth Gene Technology Act suspends or cancels the GMO licence. Thus the NSW moratorium overlays rather than displaces federal licensing, creating a two‑tiered control: federal biosafety authorisation and state-level authorisation for commercial cultivation tied to market considerations.
Cross-references to law enforcement processes
Search warrant procedure under s 29 applies LEPRA Div 4 Pt 5, meaning search warrants operate within the broader law enforcement powers and safeguards in the Law Enforcement (Powers and Responsibilities) Act 2002. The commencement provisions also tie Schedule 2.1 and 2.3 to the commencement of that LEPRA Division (s 2(2)). This places certain procedural safeguards and authorised officer definitions in a LEPRA context.
Corporations and director liability
The Act references the Corporations Act 2001 by adopting "director of a corporation" as defined there (s 4). Further, s 37 extends corporate offences to executive officers who knowingly authorised or permitted contraventions, aligning corporate fault with officer liability under corporate governance law.
Evidence and testing standards
The Act gives conclusive effect to certificates from "approved laboratories" and to specified tests such as PCR (s 19). Approved laboratories include NATA-accredited labs (s 19(2)(a)). This links operational evidentiary thresholds to external accreditation standards and laboratory practice governed by other regulatory frameworks.
Crown proceedings and compensation
The Act defines "the Crown" with reference to the Crown Proceedings Act 1988 (s 33). It then immunises the Crown from compensation liabilities in relation to anything authorised by or under the Act (s 33(1)). However, s 17 provides a limited avenue for the Supreme Court to award compensation against the Crown on appeal against directions, within narrow boundaries.
Local government and land services
Notification requirements for exemption orders include forwarding precise location details to local councils and Local Land Services (s 9(1A)(b)(i)-(ii)). This creates an administrative interface between state-level orders and local government or land services agencies which may have roles in land management, regulation, or local planning.
Regulations and subordinate law
The Act contemplates regulations that may prescribe offences (s 42(2)), identify authorised officers for penalty notices (s 35(6)(b)), specify additional approved laboratories or tests (s 19(2)), and detail other administrative matters. The regulations may therefore extend or operationalise the Act’s interplay with other legal instruments.
Evidence admissibility and self-incrimination protections
The Act limits the use of compelled self-incriminating material in criminal proceedings (s 28). This interacts with general procedural and evidentiary law, defining admissibility exceptions for specified offences under the Act (s 28(2)).
Transitional and saving interplay
Schedule 1 contains savings and transitional provisions for the Act itself and for amendment Acts (e.g. 2004, 2007 amendments referenced in Schedule 1), demonstrating statutory layering over time. The transitional clauses in Schedule 1 include provisions about moratorium orders and prior planting (cl 2), and about the transformation of the Advisory Council into the Expert Committee (cl 5).
Judicial review and administrative law
The Act contains express curbs on judicial review (s 11, s 18, s 7A(11)), limiting recourse to courts for many decisions under the moratorium Division and for specified Ministerial determinations. That interacts with general principles of administrative law and judicial review, potentially narrowing conventional remedies and subjecting certain executive acts to statutory finality.
In sum, the Act is designed to operate alongside Commonwealth biosafety licensing and established law-enforcement regimes, to use accredited scientific standards, to affect corporate governance liability, and to impose duties that implicate other State bodies. It also modifies the customary availability of administrative review for certain decisions, thereby adjusting the standard remedy architecture under State administrative law.
Amendment history
The Act text includes internal amendment annotations and provisions in Schedule 1 and other clauses indicating changes over time. The source material identifies specific amendment years and inserted provisions; the following summarises those amendments as presented in the text itself.
2004 amendments. The Act was amended by the Gene Technology (GM Crop Moratorium) Amendment Act 2004. Amendments arising from that Act are referenced in various notes and Schedule 1 Part 3 (cl 3), which addresses conditions imposed on exemption orders, specifically clarifying the application of s 8(6C) to conditions imposed before commencement of the 2004 amending Act.
2006 and 2007 amendments. The Act underwent substitution and additions in 2006 and 2007. Significant structural changes were made by the 2007 amendments (Gene Technology (GM Crop Moratorium) Amendment Act 2007), notably:
Replacement of Part headings (pt 2 heading substituted 2007, see pt 2 hdg note).
Insertion of s 7A (Approval of licensed GM food plants for commercial cultivation) (ins 2007 No 86, Sch 1 [6]) providing an approval pathway by Ministerial order on application by an industry representative, with Expert Committee advice and specified criteria (s 7A).
Substitution of Advisory Council with the Expert Committee on Gene Technology (s 13 substituted 2007 No 86, Sch 1 [10]), including provisions for appointment and functions.
Insertion of confidentiality and pecuniary-interest clauses for the Expert Committee (ss 13A and 13B) (ins 2007 No 86, Sch 1 [10]).
Repeal and re-enactment of certain moratorium and exemption orders with transitional provision treating existing exemption orders as made under the amended s 8 (Schedule 1 Part 4 cl 6).
Other amendments to enforcement provisions and headings referenced by the amendment note.
2008, 2010, 2013, 2017, 2018, 2020 amendments. The Act's annotations show subsequent technical or procedural amendments in various years:
2008: Amendments to notification and register provisions (s 9 and s 12 amendments noted 2008 No 112, Sch 6.13; 2020 No 30, Sch 2.18[4]).
2010: Amendments to definitions (s 4, 2010 No 59, Sch 2.36).
2013: Amendment to s 9(1) noted 2013 No 51, Sch 7.21.
2017: Substitution regarding penalty notices (s 35) (Subst 2017 No 22, Sch 3.30).
2018: Amendments to penalties/commencement cited (s 7 amended 2018 No 25, Sch 5.20; s 9 amended 2018 No 25, Sch 2.12).
2020: Multiple amendments to definitions and delegation provision (s 4 and s 38 amended 2020 No 30, Sch 2.18[1]-[4]).
Repeals. The source displays that Schedule 2 is repealed (sch 2: Rep 2006 No 58, Sch 4), and s 41 was repealed (s 41: Rep 2006 No 58, Sch 4). Various other technical amendments and editorial notes appear in the margins of the text.
Expiry provision changes. The Act includes s 43 stating that the Act expires on 1 July 2021, and notes that s 43 itself was amended previously (Am 2005 No 81; 2007 No 86; 2011 No 17). The presence of an expiry clause is a material feature; any extension beyond that date would require further legislation not contained in the provided text.
Transitional provisions. Schedule 1 includes savings and transitional provisions linked to the original Act and the 2004 and 2007 amending Acts (Schedule 1 Part 2 and Part 4). These effect transitional arrangements such as treating earlier planted crops and existing orders in specified ways (Schedule 1 cl 2, cl 6).
The source-supplied text names the amending Acts but does not provide full amending texts; it records where provisions were substituted, inserted or repealed and supplies the particular schedule or clause references for legislative history. The Act therefore displays an evolutionary legislative history focused on: creating an Expert Committee, adding an approval pathway (s 7A), clarifying enforcement and reporting, and adjusting administrative procedures and penalties over time.
Litigation history
The supplied statute text contains no reported cases or judicial decisions. It does, however, embed statutory limits on judicial review and specifies the routes available for judicial intervention:
Statutory bars on challenge. The Act expressly prohibits judicial challenge of orders under the moratorium Division: "An order made under this Division cannot be challenged, reviewed or called into question in proceedings before any court or tribunal" (s 11). Similarly, except as provided by Division 2 appeal routes, a ministerial direction under that Division cannot be challenged (s 18). The Minister’s determinations under s 7A are specifically immune from challenge, review or quashing in courts or administrative review bodies (s 7A(11)).
Limited appeal route. The Act provides a specific and narrow appeal path to the Supreme Court for persons aggrieved by a direction under s 14(2), with time limits and procedural rules (s 17). The appeal may be taken within 14 days or an extended time allowed by the Court, may be pursued even if the direction has already been executed (s 17(3)), and does not affect the direction until final determination (s 17(4)). Remedies the Court may grant include reversing, affirming, or amending the direction, remitting, or even giving a direction that the Minister could have given (s 17(5)(a)-(c)). The Court may award compensation against the Crown limited to losses directly suffered by the appellant and only to the extent the appeal is successful, albeit excluding exemplary or aggravated damages (s 17(7)-(8)). When the Court gives a direction that the Minister may give, that direction is treated as a Ministerial direction for enforcement purposes (s 17(6)).
Practical implication for litigation. Given the statutory limitations, cases challenging ministerial orders made under the moratorium Division or the Minister’s exercise of the approval function under s 7A would be constrained by express statutory bars, unless the challenge falls outside the barred categories or raises jurisdictional questions that may survive statutory ouster clauses; the Act itself does not elaborate on survivors of ouster clauses.
No named cases in the source. The Act text does not cite any judicial decisions, and Schedule 1’s transitional clauses reference procedural and regulatory matters rather than litigation outcomes.
Because the source does not include any court decisions or summaries, the text provides no litigation history beyond the statutory framework specifying where and how courts may intervene. For practitioners, the key litigation-relevant facts in the statute are the availability of an appeal under s 17 for directions and the tight statutory curtailment of judicial review for many ministerial decisions (ss 7A(11), 11, 18).
Gotchas
The statute contains several provisions that create significant practical pitfalls or surprise compliance burdens; these are grounded in discrete sections:
Statutory finality for ministerial approvals and orders
The Minister’s decision under s 7A to approve a licensed GM food plant for commercial cultivation "may not be challenged, reviewed, quashed or called into question before any court of law or administrative review body" (s 7A(11)). Likewise, orders under the moratorium Division cannot be challenged (s 11). Practitioners should note that judicial remedies available for many executive acts under the Act are expressly curtailed, limiting traditional avenues for administrative review.
Conclusive laboratory certificates
A certificate from an approved laboratory that an approved test shows a plant has been genetically modified is conclusive proof that the plant is genetically modified (s 19(1)). This evidentiary rule makes scientific testing decisive for triggering enforcement powers (s 14) and criminal liability. Parties should be aware that challenging the test or the certificate is not contemplated by the Act; the statutory rule elevates laboratory certification to finality in enforcement contexts.
Costs recovery as a debt to the Minister
Costs for testing, destruction and compliance are recoverable as a debt to the Minister (s 16(2)-(3)). The Minister may certify the amount and manner the costs were incurred, with that certificate constituting evidence in recovery proceedings (s 16(4)). This produces immediate financial exposure for owners or controllers where a direction is given or testing occurs.
Criminal liability for disposal and movement
If a person is aware or has reasonable grounds to suspect a plant was unlawfully cultivated, s 20 criminalises transfer, sale, supply, destruction, or movement of the plant, except under a permit or direction. This can limit standard practices for disposal or movement of suspect material, and inadvertent non-compliance can attract severe penalties (s 20).
Limited appeal rights against directions only
The only express judicial recourse against a direction under s 14(2) is an appeal to the Supreme Court under s 17. The appeal window is short (14 days) and the appeal does not suspend the direction pending determination (s 17(4)). For many ministerial acts under the moratorium Division, there is no appeal route (s 11; s 7A(11)).
Liability extensions to corporate officers
Executive officers may be taken to have contravened an offence if they knowingly authorised or permitted the offending act by the corporation (s 37(1)). This extends personal risk to directors and senior management beyond corporate fines.
Confidentiality obligations for Expert Committee members
Committee members are subject to criminal penalties for unauthorised disclosure of information obtained in carrying out functions (s 13A). That could affect industry participants or experts who serve on the Committee and expect to rely on disclosure for commercial purposes.
Barrier to compensation and Crown immunity
The Crown is not liable to pay compensation "in relation to anything that is authorised by or under this Act" (s 33(1)). On appeal the Supreme Court may award compensation only to the limited extent prescribed (s 17(7)), and cannot award exemplary damages (s 17(8)). This can leave persons who incur losses from enforcement action with constrained recovery options.
Register and public notice requirements do not invalidate orders
Failure to comply with public notice requirements (s 9(1) and (1A)) does not invalidate an order (s 9(2)). Practically, an order may operate even where notification has been imperfect, shifting the onus to affected parties to monitor government gazettes or Departmental websites.
Expiry clause (s 43)
The Act expressly expires on 1 July 2021 (s 43). Unless extended or revived by subsequent legislation (not present in the supplied text), the moratorium and related enforcement provisions would cease to operate after that date. Practitioners must verify whether the statutory expiry was extended or superseded by later legislation or transitional savings not included in the extract.
Broad inspector powers and low procedural barriers
Inspectors may enter premises at reasonable times, take samples and seize items, require records and answers (ss 23-26). Entry to residential premises needs consent or a search warrant (s 23(5)), but entry to non-residential premises can occur with notice or in emergencies. Failure to be informed of an inspector’s authority or lack of receipt of a warning about offence status can affect prosecutorial proof (s 30(6)-(7)), creating procedural traps.
Industry representation requirement for approvals
Only a "representative of a relevant industry" may apply under s 7A(1), and the application must verify representative status and meet prescribed criteria (s 7A(2)(d)). This may exclude individual farmers or companies unless they can demonstrate industry representation, concentrating the approval process in industry bodies and raising issues around who can lawfully apply.
These provisions create compliance and strategic implications that require attention from landholders, industry groups, in-house counsel and compliance teams. The statutory design concentrates discretion in the Minister and places operational weight on laboratory certification and inspector action, while constraining common avenues of judicial oversight.
How to comply
Compliance under this Act requires both preventative measures to avoid contravention and reactive procedures if enforcement action occurs. Practical compliance steps, directly tied to statutory provisions, are set out below.
Know the product status and licensing interplay
Before cultivating any GM food plant, verify whether the plant is a "licensed GM food plant" in NSW terms (s 4) and whether a s 7A approval or an exemption order under s 8 applies to that plant for the area of cultivation (s 6). Because federal GMO licences remain relevant, ensure the plant’s federal licensing status is current and un-suspended (see s 7A(9) regarding automatic revocation if a GMO licence is suspended or cancelled).
Industry-level planning if seeking approval under s 7A
If an industry wishes to seek approval for commercial cultivation, prepare to apply through a recognised representative body (s 7A(1)-(2)(d)). The application must be in writing, pay any prescribed fee, and address the criteria in s 7A(3): market requirements, acceptable thresholds for adventitious presence, supply-chain segregation processes, and import authorisations for key markets. Assemble documentary evidence demonstrating representative status of the applicant and technical evidence about segregation and testing capabilities for market thresholds.
Ensure supply-chain and segregation processes
s 7A(3)(c) requires the relevant industry to demonstrate supply chain management processes capable of meeting market requirements, including segregation where required. Document operational processes, traceability, and quality-control systems that would meet domestic and export market thresholds. Prepare monitoring and auditing regimes that an Expert Committee and the Minister can review.
Maintain records and lab testing capability
Given the conclusive evidentiary weight of an approved laboratory certificate (s 19), maintain records of testing, chain of custody for samples, and use NATA-accredited or otherwise approved laboratories for routine testing. Ensure any on-farm or processor testing conforms to "approved tests" (s 19(2)(b)), noting PCR is specified.
Be prepared for inspector interactions
Inspectors may request records and answers under ss 25-26. Policies should be in place to ensure timely production of existing records in the form requested, and to manage responses to inspector questions. Note the limited self-incrimination protection but restriction on admissibility in criminal proceedings (s 28), and ensure staff are trained to understand that a failure to answer after warning can attract criminal liability where prosecution establishes the inspector warned the person (s 30(6)).
Procedures on discovery or suspicion of unauthorised GM material
If aware or suspecting a contravention of s 6, notify the Secretary within two days, including the information specified in s 21(2). A failure to notify carries a penalty (s 21(1)). Preserve chain-of-custody, do not transfer, move, destroy or offer the plant unless authorised under a permit or direction (s 20). Engagement with the Department early reduces risk of prosecution for improper disposal.
Compliance with exemption order conditions
If operating under an exemption order (s 8), strictly comply with conditions, especially those regarding handling, destruction, monitoring of land, and ongoing use (s 8(6A)). Contravention without reasonable excuse is an offence (s 8(6C)). Keep documentation of compliance and monitoring results for inspection.
Responding to Ministerial directions
If issued a written direction under s 14(2), comply unless there is a reasonable excuse. Consider immediate legal advice to assess grounds for appeal under s 17, noting the short time frame (14 days) and that direction remains effective pending appeal (s 17(4)). Preserve evidence of costs incurred for potential recovery claims if an appeal succeeds in part.
Prepare for cost exposure
Understand that costs for testing, seizure, destruction, and compliance can be recovered as a debt to the Minister (s 16). Prepare financial contingencies and insurance arrangements that consider statutory limitations on Crown compensation (s 33) and the short timeframe for appeal (s 17).
Governance and corporate risk management
Directors and executive officers should ensure board-level oversight of GM-crop risk, compliance with the moratorium, and training of operational teams. Executive officers face personal liability if they knowingly authorised or permitted contraventions (s 37). Document corporate compliance programmes, board minutes, internal controls, and compliance training.
Engagement with the Expert Committee and Minister
For industry applications under s 7A, engage early with the Expert Committee where possible and collect the evidence it will likely require: market assessments, threshold analyses, supply-chain segregation protocols, and international authorisation status (s 7A(3)-(4)). Track the requirement that the Minister make Expert Committee requests and take advice within statutory timeframes (s 7A(4)-(7)).
Documentation and public notices
Because failure to publish notices does not invalidate an order (s 9(2)), do not rely solely on public notice to be informed of exemptions or approvals. Regularly monitor the Gazette and the Department’s website, and keep copies of any orders relevant to your operations. The Secretary’s register of orders is publicly available (s 12(3)), and firms should confirm the existence and terms of any orders affecting their land or crop types.
Legal preparedness
Develop processes for rapid legal escalation if a direction is issued, including preservation of evidence, cost documentation, and preparation of appeal grounds under s 17. Because many administrative decisions are insulated from review (s 7A(11); s 11; s 18), identify constitutional or jurisdictional issues early that might survive statutory bars.
Re-check the Act’s currency
The Act contains an expiry clause (s 43) specifying it expires on 1 July 2021. Confirm whether the regime remains in force, has been extended, or replaced by subsequent legislation not included in this text. Regulatory compliance depends on the current statutory status.
Operational compliance therefore combines technical lab practice, supply-chain controls, timely reporting, rigorous record-keeping, board-level governance, financial planning for cost recovery risks, and rapid legal response capability to ministerial directions.
inspector means an inspector appointed under section 22.
licensed GM food plant means a GM food plant in respect of which a GMO licence is in force authorising dealings with the GM food plant that are inherently necessary for commercial cultivation of the GM food plant.
non-GM food plant means a food plant that is not a GM food plant.
plant includes the seed or any part of a plant whether living or dead and whether attached to a plant or not.
relevant industry, in relation to a licensed GM food plant or class of licensed GM food plants, means an industry or sector of an industry dealing with or proposing to deal with the licensed GM food plant or class of licensed GM food plants.
Secretary means the Secretary of the Department.
(2) Notes included in this Act do not form part of this Act.
s 4: Am 2007 No 86, Sch 1 [2] [3]; 2010 No 59, Sch 2.36; 2020 No 30, Sch 2.18[1]–[3].
5 Food plants
5 Food plants
5 Food plants
For the purposes of this Act, a food plant is a species or variety of plant that the Minister is satisfied is, when grown in New South Wales, primarily grown to be used (whether or not after processing) as, or as an ingredient of, food for human consumption.
Part 2 Moratorium on commercial cultivation of GM food plants
Part 2 Moratorium on commercial cultivation of GM food plants
Part 2 Moratorium on commercial cultivation of GM food plants
pt 2, hdg: Subst 2007 No 86, Sch 1 [4].
Division 1 Moratorium
Division 1 Moratorium
Division 1 Moratorium
pt 2, div 1, hdg: Subst 2007 No 86, Sch 1 [5].
6 Moratorium on commercial cultivation of licensed GM food plants
6 Moratorium on commercial cultivation of licensed GM food plants
6 Moratorium on commercial cultivation of licensed GM food plants
The cultivation in New South Wales of a licensed GM food plant is prohibited unless—
(a) the GM food plant has been approved for commercial cultivation under section 7A, or
(b) cultivation of the GM food plant is permitted by an exemption order under section 8.
s 6: Subst 2007 No 86, Sch 1 [6].
7 Offence of contravening prohibition on commercial cultivation of licensed GM food plants
7 Offence of contravening prohibition on commercial cultivation of licensed GM food plants
7 Offence of contravening prohibition on commercial cultivation of licensed GM food plants
A person who cultivates a plant that is a GM food plant in contravention of section 6 knowing that, or being reckless as to whether, the plant is a licensed GM food plant is guilty of an offence.
Maximum penalty—in the case of a corporation, 1,250 penalty units or, in any other case, 500 penalty units or imprisonment for 2 years, or both.
s 7: Subst 2007 No 86, Sch 1 [6]. Am 2018 No 25, Sch 5.20.
7A Approval of licensed GM food plants for commercial cultivation
7A Approval of licensed GM food plants for commercial cultivation
7A Approval of licensed GM food plants for commercial cultivation
(1) On application by a representative of a relevant industry the Minister may, by order published in the Gazette, declare that a specified licensed GM food plant, or class of licensed GM food plants, is approved for commercial cultivation in all or part of New South Wales.
(2) The application must—
(a) be made in writing, and
(b) address the criteria specified in subsection (3), and
(c) be accompanied by the fee (if any) prescribed by the regulations, and
(d) be supported by documentation verifying the applicant’s status as a representative of the relevant industry concerned.
(3) The Minister must not make a declaration under this section unless the Minister is satisfied that the relevant industry meets the following criteria—
(a) the relevant industry has adequately identified the requirements demanded by key domestic and international markets for the GM food plant,
(b) the relevant industry has identified the threshold levels for the accidental or unintended presence of GM traits in food plants that are acceptable in those key domestic and international markets,
(c) the relevant industry has, or is capable of having, supply chain management processes in place that adequately address those requirements, including (if it is a market requirement that GM food plants and non-GM food plants be segregated) processes to segregate GM food plants and non-GM food plants,
(d) any approvals or any other form of authorisation required by or under any law of the key domestic or international markets relating to the importation of GM food plants have been, or can be, obtained,
(e) the relevant industry meets any other criteria prescribed by the regulations.
(4) Before making a declaration under this section, the Minister must request the Expert Committee to provide advice (not later than 28 days after the request) in relation to whether or not—
(a) the relevant industry meets the criteria referred to in subsection (3), and
(b) the GM food plant is authorised or permitted to be cultivated in another State or a Territory under a law of that State or Territory,
and must take into account any advice provided by the Expert Committee before the end of that 28 day period (the initial request period).
(5) The Minister must (subject to subsections (6) and (7)) determine the application for a declaration within 14 days after the end of the initial request period (the initial determination period).
(6) At any time before the end of the initial determination period, the Minister may request the Expert Committee to provide, within 14 days (the further request period), further advice or information on the matters concerned.
(7) The Minister must (irrespective of whether or not the Expert Committee has provided the further advice or information as requested) determine the application not later than 14 days after the end of the further request period.
(8) Subsection (4) does not limit the factors that the Minister may take into account in deciding whether or not to make a declaration under subsection (1).
(9) An order under this section in relation to a licensed GM food plant is automatically revoked if the GMO licence in respect of the GM food plant is suspended or cancelled by the Regulator under the Gene Technology Act 2000 of the Commonwealth.
(10) An order under this section may be revoked by the Minister only if the Minister is satisfied, after consulting with and taking into account any advice of the Expert Committee, that the relevant industry concerned no longer meets one or more of the criteria referred to in subsection (3).
(11) The Minister’s determination of, or failure or refusal to determine, an application or decision to revoke an order under this section may not be challenged, reviewed, quashed or called into question before any court of law or administrative review body in any proceedings or restrained, removed or otherwise affected by any proceedings.
(12) The Minister is to make public the reasons for making, or revoking, an order under this section.
Editorial note—
For orders under this section see Gazette No 33 of 14.3.2008, p 2267. From April 2021, PCO is no longer updating notes in provisions of in force titles about related gazette notices. To search for related gazette notices, please use the Gazette Search functionality.
s 7A: Ins 2007 No 86, Sch 1 [6].
8 Exemptions from operation of section 6
8 Exemptions from operation of section 6
8 Exemptions from operation of section 6
(1) The Minister may by order published in the Gazette (an exemption order) confer exemptions from the operation of section 6 to permit the cultivation of a licensed GM food plant for the principal purpose of conducting experiments.
(2)–(5) (Repealed)
(6) An exemption may be conferred so as to apply to a specified person or class of persons or within a specified area or in any other specified way. An exemption may be conferred subject to conditions or unconditionally.
(6A) Without limiting subsection (6), an exemption order may be subject to conditions that relate to one or more of the following—
(a) the handling, storage, transport or other use (including destruction or disposal) of any GM food plant that is permitted to be cultivated by the exemption order,
(b) the ongoing use or monitoring of any land on which any such plant has been cultivated.
(6B) (Repealed)
(6C) A person who cultivates, or has cultivated, a GM food plant as permitted by an exemption order must not, without reasonable excuse, contravene, or cause or permit any other person to contravene, any condition to which the exemption order is subject.
Maximum penalty—in the case of a corporation, 1,250 penalty units or, in any other case, 500 penalty units or imprisonment for 2 years, or both.
(6D) A person cannot be prosecuted for both an offence against subsection (6C) and an offence against section 7 in relation to the same act or omission.
(7) The cultivation of a GM food plant as permitted by an exemption order is not prohibited by section 6.
(8) (Repealed)
Editorial note—
For exemption orders published under this section, see Gazette No 147 of 1.12.2005, pp 9857, 9858. From April 2021, PCO is no longer updating notes in provisions of in force titles about related gazette notices. To search for related gazette notices, please use the Gazette Search functionality.
s 8: Am 2004 No 93, Sch 1 [1] [2]; 2007 No 86, Sch 1 [7]–[9].
9 Notification of making an order
9 Notification of making an order
9 Notification of making an order
(1) As soon as practicable after making an order under this Division and publishing it in the Gazette, the Minister must cause notice of the order to be published—
(a) in a manner that the Minister is satisfied is likely to bring the notice to the attention of members of the public generally, and
(b) on the Department’s web page on the Internet, and
(c) in the case of an exemption order that does not apply to the whole State, in a manner that the Minister is satisfied is likely to bring the notice to the attention of members of the public in the area in which the exemption order is to apply.
(1A) In the case of an exemption order, the Minister is to cause details of the precise location of the area of land to which the exemption order relates—
(a) to be published with the notice of the order, and
(b) to be forwarded to each of the following—
(i) the local council for each local government area in which GM food plants are to be cultivated under the order,
(ii) Local Land Services in which GM food plants are to be cultivated under the order,
(iii) any other persons or bodies prescribed by the regulations.
(2) Failure to comply with subsection (1) or (1A) does not invalidate an order.
s 9: Am 2004 No 93, Sch 1 [3] [4]; 2008 No 112, Sch 6.13; 2013 No 51, Sch 7.21; 2018 No 25, Sch 2.12 [1] [2].
10 Commencement of order
10 Commencement of order
10 Commencement of order
An order made under this Division takes effect on the day on which it is published in the Gazette or on a later day specified in the order.
11 Order cannot be challenged
11 Order cannot be challenged
11 Order cannot be challenged
An order made under this Division cannot be challenged, reviewed or called into question in proceedings before any court or tribunal.
12 Secretary to keep register of orders
12 Secretary to keep register of orders
12 Secretary to keep register of orders
(1) The Secretary is to keep a register of the orders made under this Division.
(2) The register is to contain such particulars of each order made under this Division and is to be kept in such manner and form as the Secretary may from time to time determine, subject to the regulations.
(2A) The register is also to contain, in the case of an exemption order, details of the area of land to which the exemption order applies.
(3) The Secretary is to cause the contents of the register to be made available for inspection free of charge by the public at the Department’s head office and on the Department’s website on the Internet.
s 12: Am 2004 No 93, Sch 1 [5]; 2020 No 30, Sch 2.18[4].
13 Expert Committee on Gene Technology
13 Expert Committee on Gene Technology
13 Expert Committee on Gene Technology
(1) The Minister is to establish a New South Wales Expert Committee on Gene Technology.
(2) The Expert Committee is to consist of those persons who represent food plant industries, or who have other appropriate expertise, qualifications or experience that the Minister considers will enable them to make a valuable contribution to the Committee, as are appointed as members of the Committee by the Minister from time to time.
(3) One of the members is to be appointed, in and by the instrument by which the member is appointed, as the independent chairperson o
This is an opening excerpt, not the complete document.