Skip to main content.

Strict civil liability and a civil penalties regime included in changes

The legislation governing new organisms (including genetically modified organisms) has been amended to impose:

  1. a strict civil liability for harm caused by activities that breach the HSNO Act; and
  2. a civil penalties regime for certain breaches of the law under the HSNO Act.

The strict civil liability amendments to the HSNO Act would cover cases where, for example, an organisation or an individual had not obtained the Environmental Risk Management Authority (ERMA) approvals required by law, or had deliberately not complied with the conditions imposed by ERMA when it approved the application. In these cases, people who were harmed by an activity that breached the law would not have to prove negligence when taking legal action to seek compensation. There are defences available for this strict civil liability rule. They include:

  • circumstances under which the breach was necessary to save or protect life or health, prevent serious damage to property, or avoid potential or actual harm to the environment;
  • the action which led to a breach of the law was outside the defendant’s control – for example, a natural disaster, mechanical failure or sabotage;
  • the action or event could not reasonably have been foreseen or provided against by the defendant;
  • the defendant did not know and could not reasonably have known of the breach.

A defence would also depend on whether the steps taken were reasonable in the circumstances and whether the defendant had taken reasonable steps to mitigate or remedy the effects of their action.

The amendments introducing a civil penalties regime would allow the State to take civil proceedings against an organisation or individual breaching the HSNO Act, whether or not the breach had resulted in any harm to a third party, or to the environment or public safety. In line with other legislation (such as the Commerce Act 1986), the maximum penalty levels are large so that they provide an effective incentive to comply with the requirements of the Act. In the case of an individual, the maximum penalty that can be imposed by the Court is $500,000. In the case of a business, a company or other organisation, the maximum is either:

  • $10 million; or
  • three times the value of any commercial gain that results from the breach; or
  • 10% of the turnover of the company involved (including any subsidiaries).

The penalties would not apply if the defendant did not know, or could not reasonably have known of the breach.

Last updated: 17 September 2007