Under the Australian Constitution, specific and clear
responsibility for the legislative and administrative framework within which
natural resources are managed lies with the State and Territory governments.
The Commonwealth's involvement in environmental matters focuses on matters of
national environmental significance.
This shared responsibility between the Commonwealth and
the States is referred to as cooperative federalism and is reflected in the Intergovernmental Agreement on the
Environment which was signed by the Commonwealth and all States and
Territories in 1992. The purpose of the agreement was to achieve sound
environmental management through a system of parallel and complementary
Within the framework of cooperative federalism the
Commonwealth has been involved in the coordination of national approaches to
environmental issues and the States and Territories have been involved in
assisting in such strategies. The aims of the cooperative approach include:
Consultation between the Commonwealth, States and
Territories has been formalised through ministerial councils, standing
committees and a range of consultative committees that also include key
industry and scientific representatives.
As will be apparent in the discussion below, the
management of invasive species in Australia
is multi-jurisdictional. With regards to the shared responsibility for
environmental matters it has been noted that
This chapter provides an overview of the regulatory
structure of the three tiers of government: Commonwealth, State and local,
before describing the impact of the international regulatory environment. It
first examines the Commonwealth's role, then describes that of the States,
Territories and local government, before examining evidence in relation to the
adequacy of intergovernmental cooperative arrangements. It concludes with a
discussion of the international context, which places important limits on Australia's
The Commonwealth or Australian Government derives its
authority from the Australian Constitution. The Commonwealth has no explicit
authority to enact environmental laws as the Constitution is silent in this
respect. As Ms Renea
However, there are particular powers that may be able
to be used in reference to the environment within the Constitution. The heads
of power that may be able to be used to promote environmental law include:
the trade and commerce power;
the quarantine power;
the external affairs power;
the power over Commonwealth instrumentalities
and the public service;
the power over customs, excise and bounties; and
the financial assistance power; and
the territories power.
An important aspect of the Constitution is that if
there is inconsistency between Commonwealth law and the law of a State or
Territory, the Commonwealth law prevails.
Therefore, should it choose to do so, the
Commonwealth has the ability to over-ride state laws in areas of constitutional
Commonwealth legislative framework
The Commonwealth's involvement in environmental
protection has been to institute legislation with respect to matters of
national environmental significance and fulfilling Australia's
The Commonwealth Government is involved in the
development and implementation of national measures and programs to control
invasive species. The two main Government departments with responsibility for
environmental protection are the Department of Environment and Heritage (DEH)
and the Department of Agriculture, Fisheries and Forestry (DAFF).
DEH has responsibility for managing invasive species
which pose a threat mainly to environmental values. Its efforts are focussed on
the control and management of established invasive species. Its key legislation
is the EPBC Act.
DAFF's responsibility is to manage invasive species
which pose a threat mainly to production values. Its key legislation is the
Quarantine Act 1908 (the Quarantine Act).
Most of DAFF's efforts and responsibilities are aimed
at protection and response to newly identified invasive species, as distinct
from established invasives. In its submission DAFF advised that:
Under current Administrative Arrangement Orders, DAFF has
three major areas of responsibility; agricultural, pastoral, fishing, food and
forest industries; water, soils and other natural resources; and quarantine.
DAFF's responsibilities include managing the
development and implementation of:
international agreements and undertakings;
pre-border and border monitoring, detection and
control arrangements; and
national policies and programs to manage early
DEH and DAFF work cooperatively. An example of this
cooperation is demonstrated through the fact that the EPBC Act and the
Quarantine Act require that live specimens be assessed for their potential
impacts prior to import. DEH submitted that:
The Departments of the Environment and Heritage and
Agriculture, Fisheries and Forestry have worked closely to develop an
integrated process for the assessment of
specimens. This reduces duplication and streamlines the assessment processes,
both for the Australian Government and for the applicant (or potential
importer). The agreement of both Departments is required before a live specimen
can be imported.
DEH and DAFF jointly administer the Natural Heritage
Trust (NHT) which has the aim of ensuring that the continued sustainable
management of Australia's
environment is achieved through cooperative input by the whole community to
mitigate existing problems and improve land use. The NHT is administered by the
Natural Heritage Ministerial Board, which comprises the Minister for the
Environment and Heritage and the Minister for Agriculture, Fisheries and
Forestry. There are also a number of committees and organisations that oversee
and support the Natural Heritage Trust.
The three key legislative instruments relating to
invasive species are:
Protection and Biodiversity Conservation Act 1999;
Heritage Trust of Australia Act 1997.
These are described in
Environment Protection and
Biodiversity Conservation Act 1999 (EPBC Act)
The EPBC Act is the principal piece of Commonwealth
legislation in relation to environmental protection and biodiversity
conservation. It came into effect on 16 July
2000 and, upon its commencement, it replaced a number of
Commonwealth statutes which had dealt with aspects of environmental protection
and biodiversity conservation but in a less holistic and integrated manner.
The key purpose of the EPBC Act was to clarify the
matter of Commonwealth environmental jurisdiction. The EPBC Act focuses on 'matters
of national environmental significance' and seeks to promote the conservation
of biodiversity by providing protection for:
listed species and communities in Commonwealth
areas (this includes listed threatened species and ecological communities,
listed migratory species and listed marine species);
cetaceans (all whales, dolphins and porpoises)
in Commonwealth waters and outside Australian waters;
protected species in the Territories of
Christmas Island, Cocos (Keeling) Islands and Coral Sea Islands; and
protected areas (World Heritage properties;
Ramsar wetlands; Biosphere reserves; Commonwealth reserves; and conservation
wildlife species and wildlife products subject
to international trade.
The EPBC Act provides for:
the identification of key threatening processes;
the protection of critical habitat;
the preparation of recovery plans; threat
abatement plans; wildlife conservation plans; bioregional plans; and conservation
the issuing of conservation orders; and
the regulation of exports and imports of live
animals and plants, wildlife specimens, and products made or derived from
The EPBC Act provides a framework for the management of
invasive species by providing for the listing of key threatening processes and
the creation of national threat abatement plans (TAPs). Under the EPBC Act
there is the provision for threat abatement plans to be made jointly with the
States and Territories or with agencies of those States and Territories. Plans are developed in consultation
with stakeholders and draft plans are circulated for public consultation for a
three month period. Key
threatening processes and TAPs are discussed in Chapter 5.
Section 301A of the EPBC Act also provides for the
development of regulations for the control of non-native species. Under the EPBC Act regulations may
provide for the establishment and maintenance of a list of species, other than
native species, whose members threaten or would likely threaten biodiversity. Regulations
may also regulate or prohibit trade in members of a species between Australia
and other countries, between States and Territories, and by constitutional
corporations. As will be discussed
in Chapter 5, evidence presented to the Committee indicated that the
Commonwealth has lacked the political will to implement this section of the
The EPBC Act also establishes a process for the
assessment of proposed actions by either private persons, corporations or
government and its agencies, that have, will have or are likely to have a
significant impact on matters of national environmental significance. These
matters are set out in Part 3 of the EPBC Act and include:
World heritage properties;
Wetlands of national importance (i.e. declared
Listed threatened species and communities;
Listed migratory species;
Commonwealth marine areas; and
any further matter prescribed by regulation.
The Department of the Environment and Heritage
The EPBC Act established a list of specimens suitable for
live import (the live import list) and prohibits the import of any species not on this list. The legislation provides for the
possibility of a live import being permitted under exceptional circumstances
where the Minister is satisfied there is no risk to the environment. The live
import list is divided into two parts - Part 1 is a list of specimens that may
be imported without a permit and Part 2 is a list of specimens that may only be
imported with a permit, often with conditions attached. It is an offence to
import a specimen that does not appear on the list, or a specimen on Part 2
without a permit.
An applicant wishing to add a species to this live import list
must prepare an assessment report examining the potential impacts on the
environment of the proposed import. The draft terms of reference for the report
and the draft report are published on the Department’s website for public
comment, an email to registered stakeholders is sent out inviting comment on
both documents, and a letter is sent to the appropriate State, Territory and
Australian government Ministers requesting comment on the draft report. A
species will be added to the live import list only when the Minister is
satisfied that it will not impact on the Australian environment....
Currently there are 62 applications which are being
progressed by the applicant (eg development of the assessment report, collating
further information relating to their application etc), 36 applications are
being progressed by the Department, 11 have been completed, 2 withdrawn and 1
internal amendment to the list relating to the listing of plants has also been
Quarantine Act 1908
Under the Quarantine Act the Commonwealth Government
has responsibility in relation to pre-border and border monitoring, detection
and control arrangements in respect of humans, animals and plants. Measures in
the Quarantine Act are implemented by the Australian Quarantine and Inspection
Service (AQIS), an operating group within DAFF. AQIS provides quarantine
inspection for the arrival of international passengers, cargo, mail, animals,
and plants or their products into Australia,
and inspection and certification for a range of animal and plant products
exported from Australia.
Border protection is also supported by the Northern
Australian Quarantine Strategy (NAQS) which was established 14 years ago. It is
also managed by AQIS. The aim of NAQS is to protect Australia
from exotic pests, weeds and diseases that could enter Australia
from countries to the north. NAQS is discussed in detail in Chapter 6.
DAFF’s involvement in pre-border and border protection
is designed to fulfil the Commonwealth’s constitutional responsibilities in
relation to quarantine matters as well as the provisions of the Quarantine Act.
The three key elements to DAFF's border protection regime are:
assessing risks and identifying the policies and
measures necessary to address those risks (through the Import Risk Analysis and
Weed Risk Assessment processes) managed by Biosecurity Australia;
implementing those measures at the border
(Border Protection) managed by the Australian Quarantine and Inspection Service
developing surveillance systems and complementary
measures in neighbouring countries (Northern Australia Quarantine Strategy),
together with off-shore and overseas inspections, managed by AQIS.
In its submission DAFF advised that:
The objective of Australian Government biosecurity policies
is to prevent or control the entry, establishment or spread of pests and
diseases that will or could cause significant damage to human beings, animals,
plants, other aspects of the environment, or economic activities. For animal
and plant biosecurity, import risk analysis identifies the pests and diseases
relevant to an import proposal, assesses the risks posed by them and, if those
risks are unacceptable, specifies what measures should be taken to reduce those
risks to an acceptable level.
Natural Heritage Trust of Australia
Act 1997 (NHT Act)
The NHT Act established the Natural Heritage Trust
of Australia Reserve, which is dedicated to repairing and replenishing Australia's natural capital infrastructure'. The Act allows the Trust to earn
interest and allows for consolidated revenue funds to be paid into the Trust
Reserve. Funds from the Reserve are then allocated to projects and programs
aimed at providing solutions to environmental issues. The Natural Heritage Trust aims to
move the management of natural resources to a more integrated and cohesive
requires cooperative input by the whole community to
mitigate existing problems and improve our land use now and for future
The Trust is jointly administered by DEH and DAFF. It
was established to operate for five years from 1996-97 to 2001-02. The main
source of the funds in the Reserve was derived from the first partial
privatisation of Telstra. Its operation was extended for a further five years
from July 2002. Under the Act funding is provided for programs and projects for
natural resource management. The Commonwealth aims to use funding from the
Trust as a catalyst, to attract additional and ongoing investment for
environmental and resource management projects and to instigate institutional
change which provides the framework for ongoing sustainable use.
Partnership agreements exist between the Commonwealth
and each State and Territory government. Under section 19 of the NHT Act the
partnership agreements establish the terms and conditions under which financial
assistance is provided from the Trust. It also establishes a framework for
cooperation in environmental protection, natural resource management and
The partnership agreements also aim to ensure that state policies
and regulatory arrangements for environmental protection and sustainable
development are consistent with national objectives and priorities.
There has been a fundamental shift in the NHT since its
extension. It has moved towards a more targeted approach to environmental and
natural resource management in Australia,
with the second phase of the NHT seeking to deliver:
Important resource condition outcomes including improved
water quality, less erosion, improved estuarine health, improved vegetation management
and improved soil condition.
Institutional arrangements for application of the NHT
are discussed in Chapter 3.
State and Territory legislation
The States and Territories have principal
responsibility for environmental management. Subject to the constitutional
constraints discussed earlier, the States and Territories are free to pass laws
on all aspects of environmental protection and a substantial body of
environmental legislation has been developed.
The States and Territories developed their legislation
independently and a consequence of this is that different administrative
arrangements and responsibilities have been developed in different states and
territories. With regard to weed management legislation, WWF Australia
Victorian, Tasmanian, Western Australian and the Northern
Territory Acts give primary responsibilities to government agencies, whereas
the focus for administrative authority in New South Wales, Queensland and South
Australia, is on local government agencies
Recent legislation, such as the Queensland Government's
Land Protection (Pest and Stock Route Management) Act 2002 specifies principles for pest
management, including integration, public awareness, best practice and
prevention. Such a holistic approach is absent from older statutes which are
focussed on protecting primary industry.
The ACT Land (Planning and Environment) Act 1991 was
noted as being:
... general planning legislation, with no specific weed management
focus. For example, the Act includes no weed control categories, control areas
are unspecified, and the sale and distribution of declared weeds and
contaminated material is not prohibited. It may be due to this lack of
strategic focus and detail that the ACT has the poorest record on preventative
Administrative arrangements differ between the States
and Territories in relation to the declaration of pest weed and animal species.
Most states share common principles in relation to legislation such as
declaration mechanisms, for example provisions that allow plants to be
proclaimed as 'noxious weeds', 'declared weeds' or 'pest plants'. WWF Australia
Cumulatively, this has resulted in over 330 species of declared
weeds throughout Australia.
Despite this commonality, the resulting regimes differ in a number of ways. The
current array of regulatory regimes are further complicated by the fact that in
any one State there can be numerous Acts relevant to weeds management.
In relation to the declaration of pest animals the ACT
Government noted that:
No animals have been declared as pest species in the ACT and the
regulatory effectiveness in regard to enforcing compliance of controlling a
declared pest species is considered to be inadequate. A review of the pest
provisions of the [Land (Planning and
Environment) Act 1991] Act has
State and Territory legislation in relation to noxious
weeds and pest animals is fragmented and the regulatory framework for invasive
species varies. More contemporary legislation has the benefit of being better
integrated with policy development, however, the benefit of this is hindered by
the lack of uniformity between states and territories. Concern has also been
expressed that there is an absence of reference to environmental protection or
application of the precautionary principle in the objects of the Acts.
As with national legislation, the State and Territory
legislation that relates to invasive species is reactive and restricted in its
scope. There is lack of early intervention measures. The Committee received
considerable evidence supporting the need to have measures in place to enable
an early response because:
By the time many infestations are noticed, or by the time a
plant is regarded as causing a problem, eradication is usually not feasible.
Response options are discussed in Chapter 4.
The main intervention methods are laid out in emergency
response cost sharing arrangements, which are based in cooperative agreements
rather than legislation. Discussion on these measures is provided in Chapter 5.
Some of the key State and Territory legislation is
Protection Act 1998 and the Rural Lands Protection Amendment Act 2003 - The
Act sets out the provisions under which animals, birds and insects can become
declared pests. It provides the processes and mechanisms for the control of
declared pest species. The Rural Lands Protection Boards are responsible for
regulatory aspects of the control of declared pests. The RLP Act imposes legal
obligations on owners and occupiers of land to eradicate pest animals declared
under the Act. Public land managers are also required to eradicate pest
animals. The RLP Boards also assist land holders in relation to vertebrate
pests subject to voluntary control.
and Wildlife Act 1974 - Provides the legislative basis for the control of
vertebrate pests in NSW.
Species Conservation Act 1995 - The Act lists key threatening processes.
European red foxes, feral cats and the invasion of native plant communities by
exotic perennial grasses are currently listed as threatening processes. The development and implementation
of threat abatement plans to manage key threatening processes with a view to
their abatement, amelioration or extension are prescribed in the Act.
Act 1993 - The Act provides the legislative basis for the control of weeds
in NSW. All weed species listed are classified as Weeds of National
Significance under the national weeds program. State and local government funds
are applied to control measures at a local level. National Heritage Trust
grants have been used on a small number of individual projects.
and Land Protection Act 1994, Catchment and Land Protection Regulations 2002:
This Act sets up a framework for the integrated management
and protection of catchments, establishes processes to encourage and support
community participation in the management of land and water resources, and
provides for a system of controls on noxious weeds and pest animals. The Act
also establishes the Victorian Catchment and Land Protection Council, Regional
Catchment and Land Protection Boards and the Pest Animal Advisory Committee.
The objective of the Act is to establish a framework
for the integrated and co-ordinated management of catchments, to establish
processes for the assessment of the State's land and water resources and the
effectiveness of land protection measures, to establish processes to encourage
and support land holders, resource managers and other members of the community
in catchment management and land protection and to provide for the control of noxious
weeds and pest animals. Responsibility
for the prevention and management of noxious weeds and pest animals rests with
land owners. Part 8 of the Act prescribes the measures under which noxious
plants and pest animals may be declared and outlines measures for the control
of noxious weeds and pest animals. Section 59(2) of the Act states that the
Secretary cannot recommend for declaration under Part 8 fish or invertebrate animals.
The sale, distribution and interstate movement of declared weeds is prohibited
under Section 71. Under Section 63 the Minister may declare a restricted weed
if it is a serious threat in another State or Territory, and has the potential
to spread within Victoria,
and if sold or traded in Victoria
would pose an unacceptable risk. Limitations and penalties for the importation,
trading, keeping and releasing of pest animals is prescribed in Section 75. The
objective of the Regulations is to prescribe the purposes for which an
established pest animal may be kept without a permit and the conditions under
which an established pest animal may be kept.
Flora and Fauna Guarantee Act 1988 - The Flora and Fauna Guarantee Act 1988 is the key
piece of Victorian legislation for the conservation of threatened species and
communities and for the management of potentially threatening processes. Predation
by red foxes, feral cats (felis catus)
and the invasion of native vegetation by environmental weeds are listed as threatening
processes in Schedule 3.
Land Protection (Pest and Stock
Route Management) Act 2001 and the Land Protection (Pests and Stock Route
Management) Regulations 2003 - Under the Act all Weeds of National Significance
are prevented from sale in Queensland
and from transportation from interstate into Queensland. The Queensland Weeds Strategy
2002-2006 and the Queensland Pest Animal Strategy 2002-2006 are enshrined in
the Act and they create an agreed framework to improve invasive species and native
pest management in Queensland. The strategies are subject to 5-yearly review. Land managers have responsibility
for managing invasives on their land. Under the Act all local governments must
develop a Local Government Area Pest Management Plan (LAGPMP). This is to be
done in consultation with state government agencies and other stakeholders by 1 July 2004. The LAGPMP covers all
land within the boundaries of the local government area, including land owned
or controlled by individuals, industry or the state.
Fisheries Act 1994 - Provisions in the Act cover the
possession and release of noxious and non-indigenous fisheries resources. It
also provides for the protection and conservation of fish habitats and the
declaration of management plans to regulate taking, possessing or selling
As discussed later Queensland
has almost uniquely delegated pest management to local government which, in
part, explains why its key state statute is of an economic nature rather than
Related Resources Protection Act 1976 - This law is intended to be
augmented by the proposed Biodiversity Conservation Bill. The objective of the
Act is to protect primary industry and resources related to primary industry. Under Section 35 and 36 of the Act plants and
animals may be declared and assigned to different categories. Section 37 of the
Act allows that once a year the State publishes a list in the Gazette setting
out every class of plants and animals that is subject to a declaration under
Section 35. Under the Act state government, local government and private land
owners are responsible for the control of declared plants and animals on and in
relation to their land.
Animal and Plant
Control (Agricultural Protection and Other Purposes) Act 1986. The Act
provides for the control of animals and plants for the protection of
agriculture and the environment, for the safety of the public and for other
purposes. The Animal and Plant Control Commission (APCC) is responsible for
administering and implementing the Animal
and Plant Control Act 1986 by funding research into pest problems, the
development of State-wide and local policies and providing technical advice and
enforcement activities. Local control and policy development is provided
through Animal and Plant Control Boards. The Boards are based on Council
boundaries and comprise one or more Council areas. Boards are responsible for
ensuring that the provisions of the Act are carried out and enforced within their
locality by monitoring and inspecting to determine the distribution and
abundance of proclaimed animals and plants. Landowners are responsible to
control proclaimed animals and plants on their own land. Boards have the power
to ensure that non-compliant landowners undertake pest control.
Act 1995 - Conditions for the entry into Tasmania
of any fish species capable of living or breeding in Tasmanian waters is
prescribed in the Act. This includes imports for fish bait, aquarium pets and
aquaculture. As some fish species have the potential to seriously damage the
environment and displace native species, they have been declared controlled
fish under the Act. Under the Act it is illegal to import, release, transfer or
have possession of yabbies or carp in Tasmania.
Furthermore, provisions under the Act allow the Inland Fisheries Service (IFS)
to regulate all freshwater fish, crustaceans, amphibian, mollusc, invertebrate
and aquatic plant imports. All imports, whether for recreational, hobby or
commercial purposes, must have the written authority of the IFS.
Act 1999 - The purpose of the Act is to minimise the effect of weeds on Tasmania's
sustainability of productive capacity, natural ecosystem and biodiversity, to
promote a strategic and purposeful approach to weed management, to encourage
community involvement in weed management and to promote shared responsibility
for weed management. The Weed
Management Act provides for the development of a management plan for a specific
weed prior to its proclamation as a noxious weed. This is essential if the
proclamation of a weed is to result in its long term management. A person must not sell or otherwise
distribute any declared weed or anything carrying a declared weed if prohibited
to do so by a weed management plan. A person must not import or allow to be
imported into the State any declared weed if prohibited to do so by a weed
management plan. Under Section 13 notices can be served on land owners
requiring them to take measures in regards to specified declared weeds.
Species Protection Act 1995 - Under the Act threat abatement plans may be
developed in respect of any process which is a threatening process. Plans may
be made for flora and fauna and are developed in consultation with the public. The plans must be reviewed within a
period of 5 years after being made.
and Environment) Act 1991 - The Act prescribes management objectives for
areas designated as public land and requires the development of associated
management plans. Authority for the administration of leased rural land is also
provided. Under the Act an animal, including a native animal, may be declared
as a pest species. However:
No animals have been declared as pest species in the ACT and
the regulatory effectiveness in regard to enforcing compliance of controlling a
declared pest species is considered to be inadequate. A review of the pest
provisions of the Act has been programmed.
The Act is general planning legislation and it does not
have specific weed management focus. The Act does not include weed control
categories, control areas are unspecified, and the sale and distribution of
declared weeds and contaminated material is not prohibited.
Act 1980 - This Act protects native plants and animals and controls the
handling of vertebrate animals. A licence is required to import, keep or sell
an animal other than and animal prescribed as exempt. A licence is also
required to release an animal from captivity or to import, export, sell or
release live fish. The Conservator of Flora and Fauna is required to prepare an
Action Plan in response to each declaration of a threatened species or
ecological community. The objective is the long term maintenance of viable,
wild populations of each species or samples of the ecological community as
components of the biological resources of the ACT. If the impact of pest plants
and animals is considered to be a threatening process their control is
identified as a key management strategy in Action Plans.
Fisheries Act 2000 - The Act protects fish species of
conservation concern and established authority for fisheries management. It
provides for the declaration of noxious fish species. No species has been declared
noxious but potential species for inclusion are currently being reviewed.
Act 1992 - The Act controls activities that impose suffering on animals,
including the use of poisons and traps. The Animal Welfare Advisory Committee
is established by the Act to provide advice and participate in the development
of codes of practice. The codes of practice are of direct relevance to
vertebrate pest management as they relate to the destruction of kangaroos and
the control of foxes.
Act 2001 - Provides for the prevention of the spread of weeds in, into and
out of the Territory and establishes the management of weeds as an integral
component of land management. The Act provides for community involvement in the
creation of weed plans and ensures that there is community responsibility in
implementing weed management plans.
The Minister may declare a plant to be a weed or a potential weed. The Minister
has the authority to classify a weed as necessary to eradicate, necessary to
prevent growing or necessary to prevent introduction of the plant into the Northern
The management of weeds is the responsibility of the land owner or occupier.
The Minister has the authority to declare an area as a quarantine area.
Territory Parks and Wildlife Conservation Act 2001 -
Management of feral animals is prescribed in the Act. The Act states that they
are to be managed in a manner that
(a) reduces their population and the extent of their
distribution within the Territory; and
(b) controls any detrimental effect they have on wildlife
and the land.
Provisions for cooperation with the Commonwealth or a State or another
Territory of the Commonwealth or with an authority of the Commonwealth or of a
State or another Territory of the Commonwealth in the formulation and implementation
of management programs for the control and management of feral animals are
prescribed in the Act. The land
owner or occupier is responsible for the management of feral animals on their
land, however they may receive
assistance from the Commission to assist them in fulfilling their obligations. Vertebrates that are not indigenous
to the Territory are prohibited entrants unless prescribed not to be by the
Due to the breadth and volume of local government
legislation, policy and programs relating generally to land use, this section
only seeks to provide an overview of the scope of power and role of local
governments in managing invasive species.
Local government is the third tier of government in Australia
however, it is not recognised in the Constitution. Its power derives from a State Local
which generally outlines the system of local governance and
grants local authorities certain powers. 
The role of local governments has expanded beyond their
traditional role of rates, roads and rubbish to include greater general
competence powers. Core amongst
these is local government involvement in environmental management.
Local government is the sphere of government closest to
the community. It is responsible for good
governance and the care and protection of local communities within a framework
of sustainable development. As managers of public land and land use planners,
local government is responsible for policy development and implementation of
land use planning, as well as regulating a wide range of activities that may
impact upon natural resource management.
The Australian Local Government Association states
Local Governments functions, powers and responsibilities are
not prescriptive in each State. Local Government must implement statutory
responsibilities and operate within State/Territory legislative frameworks and
as a land manager in their own right. Councils do have the responsibilities to
make policies, undertake planning and deliver services to meet their community's
needs. Furthermore, Councils are actively involved in policy delivery, planning
and delivery of services, but their specific investment can not be taken for
Local government has a key role in translating the policies
of Commonwealth and State governments into on-ground projects. Local government performs this role
amongst the myriad of legislation from all three tiers of government.
Local governments have been responsible for a large
number of applications for Natural Heritage Trust grants. Many of the:
activities perceived as being non-core activities are only
undertaken when Federal or State payments provide the resources under specific
There are a range of functions, powers and
responsibilities at the disposal of local governments that can be applied to
natural resource management and therefore the management of invasive species.
planning through land use zoning and statutory controls on all freehold
land and locally managed open space;
responsibility for state
agency coordination through integrated planning, licensing and development
plant and animal risk control measures;
over land clearance patterns through incentive programs (planning
amendments, rate differentials, levies, rural fire management and developer
of local open space to
restore remnant vegetation and recreate habitat; and
advocate for and coordinator of local community groups and interests.
Local government in Queensland
has the broadest powers of any State or Territory. Its powers are as broad as the
State Government, although State legislation overrides local government laws
the management of most established invasive species is the responsibility of
land owners. Local government has legislative responsibility for overseeing
most of these activities, although state agencies have a compliance role for
some species. Local governments
have responsibility for keeping their shire or city/town free of declared
pests. Local government is responsible for monitoring and enforcement on
private land and land it manages. Their power is demonstrated through the fact
that under the Local Government Act 1993
a local government may locally declare a pest species if it is not declared by
the state or requires a greater level of control in the local government area.
As was discussed above, Commonwealth, State and Territory
responsibilities in relation to environmental matters generally, and in respect
to invasive species in particular, are underpinned by the notion of cooperative
federalism. However, cooperative federalism is a consensual approach that is
reliant on all parties putting agreements into effect within their own
jurisdictions in a timely manner.
The failure of the States and Territories to implement
uniform national prohibition on the sale of the 20 Weeds of National
Significance; as discussed in Chapter 4, highlights the pitfalls of this
approach. WWF Australia submitted that:
Certain jurisdictions, namely the ACT, has legislation that does
not even allow the sale of declared weeds to be prohibited.
While, by comparison, NSW Agriculture submitted that:
State legislation has been, or is in the process of being,
changed to fully support these strategies [Weeds of National Significance etc]
and local control programs are being applied where the weeds occur. State and
local government funds are applied to these control measures at the local
WWF Australia summarised its views as follows:
Given it is over 5 years since the adoption of the National
Weeds Strategy which included calls for increased consistency between State
laws, WWF Australia has very strong doubts about whether the States have the
political will to reform their laws within a reasonable period to construct a
solid, nationally consistent, preventative, post-border statutory framework to
prevent and control invasive plants.
The Committee observes that any weak link in the
national program of prohibition on trading in pest species represents a major
constraint to the effectiveness of the program as a whole. It is self-evident
that, to improve their effectiveness, legislation and strategies for managing
invasive species need to be better harmonised. Evidence confirms that the lack
of coherent and coordinated State, Territory and national controls on the sale
of invasive plant species is identified as a major invasion pathway for new
weeds. This is discussed in
While there is a reasonable level of cooperation
between States and Territories on some issues, there is no national approach to
dealing with most pest species. In relation to pest animals, the Western
Australian Department of Conservation and Land Management submitted that:
The State and Territory agencies have varying amounts of
legislation to support their capacity to manage invasive species that might
enter each State or Territory or to manage feral populations of species already
in the country.
Management problems are compounded by the fact that in
some States and Territories management is the responsibility of primary
industry departments while in others conservation departments have carriage of
the issue. In relation to pest animals, the Western Australian Department of
Conservation and Land Management submitted that:
While there is a reasonable level of cooperation between
adjacent States and Territories on some issues, there is no national approach
to dealing with most species. This is partly a function of differing priorities
(e.g. a pest in one State is of little concern in another, or beyond control
already). The problem is also complicated by the nature of the agencies in each
State currently responsible for invasive species management - primary industry
departments have carriage of this issue in some States, while in others it is
the conservation agencies. The level of networking and quality of those
networks is affected by these circumstances. Coordinated, national approaches
to managing invasive species would be a worthy goal.
Invasive species do not acknowledge state and territory
borders, yet an absence of measures to limit the interstate transport of
invasive species, and a lack of nationally coordinated invasive species
management legislation, impacts on the ability of States and Territories to
effectively manage pest species and also aids the dispersal and potential of
species to become noxious in other states.
is perhaps a model for the others to follow in this respect. It has legislated
to address the risk posed through items posted from interstate. However, this
is currently being challenged. The Department of Conservation and Land
Management submitted that:
In the past Western Australian Quarantine Inspection Service has
scanned interstate mail for quarantine risk material (QRM) with great success.
For example, in 1999/2000 WAQIS inspected 39,410 packages with quarantine risk
material (QRM) and made 182 seizures (honey, seeds, fruit, vegetables, plant
cuttings, cannabis, etc). 31,743 parcels were also scanned with 2,664 parcels
found to contain QRM.
However, there is an inconsistency between Western
Diseases Act 1914 (PDA) and the Commonwealth Australian Postal Corporations Act 1989 (APCA). The PDA states that
WAQIS can inspect any vessel or package imported into the State and that we can
enter any premises to do so, while APCA states that no-one can open and inspect
mail other than customs, federal police and AQIS. Because APCA is a
Commonwealth act it overrides the PDA and Australia Post is now refusing to
allow inspection of parcel and express post. This matter has been taken up
between the Western Australian
State government and the
Commonwealth government but currently remains unresolved.
A common theme amongst State and Territory legislation
is the responsibility of landowners to manage noxious weeds and pest animals.
Yet, penalties for failing to act are not comparable to the cost of management
of actions when species become invasive.
Adding to the complexity of managing invasive species
is that the States and Territories have developed local weed and pest animal
lists. Such lists are in addition to national lists that have been developed
through the National Weeds Strategy, Vertebrate Pests Committee and the like. A
lack of synthesis of these lists undermines the ability of the States and
Territories to effectively manage invasive species and limits cross border
awareness of pests that have the potential to become invasive if they cross
borders. Poor legislative coordination hinders the ability to effectively
manage invasive species.
Given that the statutory controls of the States and
Territories continue to be inconsistent some years after agreement had been
reached on a uniform national approach, the question arises whether Australia
would be better served by a more comprehensive and consistent approach under
Commonwealth leadership. The main forum in which intergovernmental agreement on
invasive species management occurs is in ministerial councils; primarily the
Natural Resource Management Ministerial Council and the Primary Industry
Ministerial Council. These forums seek to obtain consensus on environmental
matters across a spectrum of regulatory and policy matters. An assumption
behind the national environmental strategies that have been developed is that
State and Territory Governments will ensure that the strategies are
implemented. However, there is no mechanism, except for public pressure, to
ensure that agreed actions are implemented. Given that moral pressure is
proving unsuccessful, the Committee notes that another approach may be required
to gain a higher level of compliance. This is discussed further in Chapter 5.
International legislation and conventions
In its submission the Department of Agriculture,
Fisheries and Forestry stated that:
is involved in international activities regarding invasive species arrangements
to ensure that Australia's
procedures conform with current international standards and best practice and
importantly do not jeopardise our trade in primary products.
DAFF submitted that this involves dealing with:
The World Trade Organisation Agreement on the
Application of Sanitary and Phytosanitary Measures (SPS Agreement);
The United Nations Food and Agricultural
Organisation International Plant Protection Convention;
International Maritime Organisation - International Convention for the Control and
Management of Ships Ballast Water and Sediments in relation to invasive
marine pests; and
The Office International de Epizooties (the
world animal health organisation) to the extent that it deals with animal
diseases and invertebrate pests that infect animals or that act as vectors for
microbial diseases of animals.
The Convention on Biological Diversity is another
international agreement that Australia
is party to. Its focus is on the use and conservation of biodiversity rather
The international agreements and legislation mentioned
above are discussed in turn below.
The World Trade Organisation Agreement on the Application
of Sanitary and Phytosanitary Measures (SPS Agreement)
The SPS Agreement is the most significant international
influence over Australia's
ability to manage its borders to control entry of invasive species.
On 1 January
1995 the World Trade Organisation replaced the General Agreement on
Tariffs and Trade as the organisation overseeing the multilateral trading
system. As a member of the World Trade Organisation Australia has an obligation
to manage trade across its borders within the limits not just Australian
legislation but also international legislation. One of the fundamental
principles of the World Trade Organisation was for member nations to dismantle
their tariffs. The World Trade Organisation's role includes providing a forum
for trade negotiations, handling trade disputes and monitoring national trade
policies. Concerns were raised that countries would use quarantine laws as
surrogate tariffs to protect local producers. The World Trade Organisation's Agreement
on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) is
designed to prevent this and breaches of the SPS Agreement can be met with
penalties and trade sanctions.
The SPS Agreement sets out the basic rules on food
safety and animal and plant health standards. On its website the World Trade
Organisation states that
...It [the SPS Agreement] allows countries to set their own
standards. But it also must be based on science. They should be applied only to
the extent necessary to protect human, animal or plant life or health. And they
should not arbitrarily or unjustifiably discriminate between countries where
identical or similar conditions prevail.
Members must base sanitary and phytosanitary measures
on international standards, guidelines or
recommendations, where they exist. Measures that are based on international
standards, guidelines or recommendations are not presumed consistent, and
therefore must be supported by sufficient scientific evidence and an import
Article 5.7 of the SPS Agreement allows the
precautionary principle to be applied as a temporary measure to deal with
scientific uncertainty, however, this is only a provisional measure while
additional information, on which an assessment can be based, is made.
The focus of the SPS Agreement is to facilitate trade
liberalisation. This is evidenced in Article 5.4 of the SPS Agreement which
states that when making assessments on potential imports, members must take
into account the objective of minimising negative trade effects. As a member of
the WTO, Australia
is bound by the SPS Agreement and its emphasis on the importance of free trade.
Arguably this could be to the detriment of a nation's biodiversity.
International Plant Protection
The International Plant Protection
Convention (IPPC) is an international treaty with the:
purpose is to secure a common and
effective action to prevent the spread and introduction of pests and plants and
plant products, and to promote appropriate measures for their control.
signed the IPPC on 30 April 1952
and ratified it on 27 August 1952.
The IPPC plays a key role in facilitating international
trade. The WTO-SPS Agreement names the IPPC as the international organisation
responsible for phytosanitary standard-setting and the harmonisation of
phytosanitary measures affecting trade. The IPPC plays a key role in
encouraging countries to ensure that their exports are not the means through
which new pests are introduced to their trading partners. Likewise, importing
countries strive to ensure that measures they have in place for protection are
technically justified, not protectionist measures.
The IPPC is a legally binding international agreement.
WTO members are required to base their phytosanitary measures on international
standards developed within the framework of the IPPC. Measures that deviate
from the international standards, or that exist in the absence of international
standards, must be based on scientific principles and evidence is provided
through assessments on the risk to plant health or life. The precautionary
principle may be used, but must be reviewed for scientific justification and
modified accordingly if the claim is to be legitimately maintained.
The IPPC includes both direct and indirect damage by
pests, including weeds. Provisions of the IPPC cover conveyances, containers,
storage places, soil and other objects or material capable of harbouring plant
One of the principles of the IPPC is that quarantine
controls should not act as a quasi-barrier to trade. The least trade
restrictive quarantine measures should be accepted. These measures must be
scientifically based and applied in a non-discriminatory and consistent manner.
If quarantine measures do not stand up to scrutiny, disputes may be taken to
International Convention for the
Control and Management of Ships Ballast Water and Sediments
In response to the threats posed by invasive marine
species, the United Nations Conference on Environment and Development (UNCED)
held in Rio de Janeiro in 1992, in
its Agenda 21 called on the International Maritime Organisation (IMO) and other
international bodies to take action to address the transfer of harmful
organisms by ships. In support for the move for an international approach to
this issue the Global Ballast website states that:
As shipping is probably the most international industry, the
only effective way to address shipping related issues is through a standardised
In response to this the International Convention for the Control and Management of Ships Ballast
Water and Sediments (The Convention) was adopted by consensus at a
Diplomatic Conference at the International Maritime Organisation in London
on 13 February 2004. The Convention is divided into Articles;
and an Annex which includes technical standards and requirements in the Regulations for the control and management
of ships' ballast water and sediments.
The Convention will enter into force 12 months after
ratification by 30 States, representing 35 per cent of world merchant shipping
tonnage (Article 18 Entry into force). At the time of the Committee's inquiry Australia had not become a party to the convention.
Under Article 2 General Obligations
Parties undertake to give full and complete effect to the provisions of the
Convention and the Annex in order to prevent, minimize and ultimately eliminate
the transfer of harmful aquatic organisms and pathogens through the control and
management of ships’ ballast water and sediments. Parties are given the right to
take, individually or jointly with other Parties, more stringent measures with
respect to the prevention, reduction or elimination of the transfer of harmful
aquatic organisms and pathogens through the control and management of ships’
ballast water and sediments, consistent with international law.
Parties should ensure that ballast water management practices do not cause
greater harm than they prevent to their environment, human health, property or
resources, or those of other States.
The Convention also includes provisions that relate to
scientific and technical research on ballast water management, monitoring of
ballast water management, provisions for surveying and certification of ships,
the provision of technical assistance to other parties and other factors.
Office International des
The OIE is the World Organisation for Animal Health. It
is an international organisation established to guarantee the transparency of
animal disease statues worldwide. Each Member Country undertakes to report the
animal diseases that it detects on its territory. The OIE collects and analyses
the latest scientific information on animal disease control. This information
is then made available to the Member Countries to help them to improve the
methods used to control and eradicate these diseases.
The OIE develops normative documents relating to rules
that Member Countries can use to protect themselves from the introduction of
diseases and pathogens, without setting up unjustified sanitary barriers. The
main normative works produced by the OIE are: the International Animal Health Code, the Manual of Standards for Diagnostic Tests and Vaccines, the International Aquatic Animal Health Code
and the Diagnostic Manual for Aquatic
OIE standards are recognised by the World Trade
Organisation as reference international sanitary rules. The OIE has a mandate
under the WTO SPS Agreement, to safeguard world trade by publishing health
standards for international trade in animals and animal products.
Convention on Biological Diversity
The Convention on Biological Diversity (CBD) was signed
in 1992 at the 1992 UN Conference on Environment and Development (UNCED) in Rio
de Janeiro and ratified in 1993.
signed the CBD on 5 June 1992
and ratified the CBD on 18 June 1993.
The CBD is a comprehensive, binding agreement covering
the use and conservation of biodiversity. It requires countries to develop and
implement strategies for sustainable use and protection of biodiversity, and
provides a forum for continuing international dialogue on biodiversity-related
issues through the annual conferences of the parties (COPs).
The CBD establishes three main goals:
the conservation of biological diversity;
the sustainable use of its components; and
the fair and equitable sharing of the benefits
from the use of genetic resources.
The role of Governments is to provide leadership,
particularly setting the rules that guide the use of natural resources, and by
protecting biodiversity where they have direct control over the land and water.
Governments are required to develop biodiversity strategies and action plans,
and to integrate these into national plans for the environment and development.
The CBD acknowledges that there is an urgent need to
address the impact of invasive alien species. Eradication, control and
mitigation of their impacts combined with legislation and guidelines at
international, national and regional levels are some of the ways that the CBD
is addressing the issue. Article 8 of the CBD has also acknowledged the part
invasive species play in the decline of biological diversity.
The Commonwealth has a responsibility in relation to
meeting obligations contained in the Convention on Biological Diversity, in
cooperation with the States and Territories under relevant legislation and through
relevant programs. Article 8 relates to in-situ
conservation and states the obligations of contracting parties. The obligations
as set out under Article 8(h) are that each
Contracting Party shall, as far as possible and as appropriate:
Prevent the introduction of,
control or eradicate those alien species which threaten ecosystems, habitats or
The CBD sets out a number of
Guiding Principles for Parties to the CBD, other Governments and relevant
organisations to follow. These are known as the Guiding principles for the prevention, introduction and mitigation of
impacts of alien species that threaten ecosystems, habitats and species.
Parties are encouraged to follow the Guiding
Principles. The CBD website acknowledges that contributions to the
implementation of Article 8(h) is made by a number of international
instruments. including the International Plant Protection Convention, the
Office International des Epizooties, the food and Agricultural Organisation of
the United Nations, the International Maritime Organisation and the World
The increase in international trade has brought with it
an increase in the movement of animals and plants, some of which have become
invasive. Invasive plants and animals are now a global problem in unprecedented
numbers. Ms Renae
Leverenz submitted that:
Invasive species being carried in free trade facilitated by
the WTO agreements present an undeniable threat to global biodiversity and
cause serious damage.
WWF noted in its submission that international rules
prevent the Commonwealth from adopting a strong preventative approach toward
invasive species pre-border for species that are not yet present in Australia
or not under official control. They advocate strong post-border controls on
invasives that cannot be banned at the border due to international legislation
and obligations. WWF also noted, however, that international rules do not
impede the Commonwealth from introducing preventative provisions under the EPBC
Act to control the inter-State/Territory trade of invasive species that have
not yet become environmental problems.
International obligations require that quarantine laws
are not used as quasi-barriers to trade. The challenge for Australia
is to find measures which enable Australia
to preserve its biodiversity without flouting international obligations, and
therefore becoming subject to World Trade Organisation actions.
In order to maintain Australia's
biodiversity and to prevent the 'McDonald's-isation
of the environment'
there is a need for Australia
to find methods for effectively managing invasive species within the framework
of legislative controls and obligations that operate both internationally and
at a domestic level.