Analysis of Public
Submissions
Analysis of
Public Submissions
3.
section 3.8 |
appendix 3
Outcomes of Consultation: Submissions
from the Public
Section contents
3.
Analysis of Public Submissions
22
3.8
Liability
80
Background
80
Outline of this section
80
Problems around attribution of liability
80
Producers' liability
82
The State's liability
82
Liability insurance
82
Regulatory framework
83
Royal Commission on Genetic Modification | Report Appendix 3
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Report Appendix 3 | Roy al Commission on Genetic M odification
3.8 Liability
Background
Warrant item (e) called for information on:
the liability issues involved, or likely to be involved, now or in the future, in relation to
the use, in New Zealand, of genetic modification, genetically modified organisms, and
products
Outline of this section
Rarely did public submitters specifically comment on liability issues. The comments
of the 256 submitters (2.3% of the total) who did were mainly focused on
attribution of liability and problems around attribution, forms of liability, the
regulatory framework and liability insurance.
Problems around attribution of liability
Twenty-four public submitters wrote about inherent characteristics of genetic
modification effects that they felt made it difficult to establish the extent of liability
(see Table 3.15). These characteristics, described in more detail in previously in
terms of evidence and uncertainty, included the unpredictability of effects, their
potentially wide dispersal, the difficulties in tracing the original source of impacts,
their cumulative nature and their potential longevity. Given these difficulties,
submitters expressed concern about how to ensure that producers took
responsibility for their actions. When public submitters commented on liability
they were often more concerned about moral responsibility.
Public submitters also demanded reparation to address negative effects. However,
51 submitters wrote about problems around establishing the extent of liability (see
Table 3.15). Some felt that there is no adequate policy in place to ensure that
producers are held liable for any negative consequences of their genetically
modified organisms and products. They expressed worry that these producers
would be able to evade responsibility because of the difficulties in establishing a
direct link between them and the problems they have caused. One submitter's
comment provides an insight into the wider concern: "...it is unclear who will take
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Section 3: Public Submissions
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Table 3.15 Main issues raised on liability (n = 256)
financial responsibility for any catastrophes resulting from the release of GMOs
into the environment. This is certainly a burden that the public would not want to
carry." The concern most frequently expressed was that New Zealanders "should
not be left holding the bag". There was worry that multinational companies could
reap the benefits of genetic modification, leaving the government and the people
of New Zealand to deal with the mess left behind. The following sub-sections
outline the different liability options raised by public submitters and their
responses to them.
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Main issues raised on liability:
Number
%
Polluter should pay for damages
84
32.8
Implications for government liability of negative impact of GM use
78
30.5
Non-insurability of risk
73
28.5
Difficulties in establishing the extent of liability
51
19.9
Difficulties in establishing liability, given GM-impact characteristics
24
9.4
Implications for government liability where GM benefits denied
4
1.6
Other
9
3.5
The "Other" category included issues related to:
*
expansion of liability to include individuals in companies, such as researchers
*
requiring ERMA and/or government to assume responsibility for enforcing liability legislation
*
the level of government liability. For those arguing for government liability, they assumed central,
not regional, level of government
*
ensuring a clear framework for liability was established and understood prior to any genetic
modification activities
Multiple response
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Producers' liability
Even though submitters acknowledged that there could be difficulties in
establishing who was liable for genetic modification effects, and the extent of their
liability, they were most likely to suggest the `polluter-pays' principle. This
requires producers taking responsibility for untoward side effects of their products
and activities. Eighty-four submitters saw adoption of the `polluter-pays' principle
as fundamental to the introduction of genetic modification in New Zealand. They
outlined proposals ranging from financial bonds to compensation funds that
companies would have to complete before they would be allowed to operate. They
also made more general comments about multinationals, stressing that they must
not be allowed to hide in other countries to avoid taking responsibility. Some
submitters suggested that the polluter-pays principle is a fundamental safety
mechanism, ensuring that companies would think twice before pushing potentially
harmful products on to the public or environment without proper testing.
The State's liability
Seventy-eight submitters explicitly rejected any state liability for the negative
impacts of genetic modification use, which they equated with society taking
responsibility. They were adamant that the government and the people of New
Zealand should not be liable for damages caused. The concern was frequently
expressed as "why should we take all the risks while they [multinationals] get all
the benefits?" Public submitters addressing the question of liability were
overwhelmingly in favour of making companies and those working for them liable
for any and all adverse consequences.
Liability insurance
As Table 3.15 shows, 73 public submitters wrote about liability insurance. Some
referred to the refusal of insurance companies to insure genetic modification
activities. They interpreted this refusal in two ways. First, insurance companies'
refusal to provide operators with protection was demonstration of the unacceptably
high risks associated with genetic modification. Second, given the reluctance of
insurance companies to provide cover, a requirement for operators to take out
public liability insurance could provide an effective way to constrain genetic
modification activities.
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Regulatory framework
The HSNO Act provides most of the regulatory framework for establishing
liability. The Act provides for significant penalties and:
*
makes it an offence to knowingly import, release or process a new organism
without appropriate approval and fail to comply with any conditions of the
approval
*
makes it an offence for a manufacturer, developer or importer of a new
organism to knowingly fail to report any new significant information or
adverse effect of that hazardous substance or new organism
*
enables a Court to order a person who offends to mitigate or remedy any
adverse effects on people or the environment and to order the destruction of
the new organism.
Forty-four public submitters specifically referred to the current framework for
establishing liability, of whom two considered it adequate and 42 considered it
inadequate. Amongst the latter, their concerns mainly reflect their belief that:
*
Current legislation favours producers and scientists.
*
Current regulations cannot be enforced because risks are too difficult to
assess and liability too difficult to establish.
*
The lack of bonds and other mechanisms mean it will be difficult to make
polluters pay for any damage.
*
Current regulations are not sufficiently enforced.