Chapter 7 - Environment Protection and Biodiversity Conservation Amendment (Invasive
Species) Bill 2002
7.1
The Committee's terms of reference require it to
determine whether the Environment Protection and Biodiversity Conservation
Amendment (Invasive Species) Bill 2002 (the Bill)
could assist in improving the current statutory and administrative arrangements
for the regulation, control and management of invasive species. This chapter
provides an overview of the Bill and examines
the commentary in the evidence about its strengths and weaknesses.
7.2
It should be noted that the original Bill which
underpinned the principal Act, the Environment
Protection and Biodiversity Conservation Act 1999 (EPBC Act), was subjected
to a comprehensive review by the Senate's Environment, Communications,
Information Technology and the Arts Legislation Committee between July 1998 and
April 1999. The Committee received over 600 submissions and it conducted public
hearings in Brisbane, Sydney,
Hobart, Perth,
Canberra, Adelaide,
Darwin and Melbourne.
While several submitters had argued for the Act to specifically address
invasive species, the Government members' majority view was that the
Government's existing policies and programs already adequately addressed the
objective.[616] Neither the ALP,
Australian Democrats nor the Australian Greens and The Greens (WA) raised
objection to this proposition in their minority or dissenting reports. However,
the Bill as examined by the ECITA Legislation
Committee was subsequently subjected to substantial amendment prior to its
acceptance by the Senate, including the addition of section 301A, dealing with
'Regulations for control of non-native species', as a Government amendment.
'Non-native species' are essentially defined as a species other than native species
that represent a threat to Australian biodiversity.
Overview of the Bill
7.3
The Bill was introduced
on 19 November 2002 as a
Private Senator's bill by the Australian Democrats' Senator Andrew
Bartlett to address perceived inadequacies
in the current regulatory framework. Senator Bartlett
also saw the Bill as a catalyst to further
debate about the issue of invasive species.
7.4
The Bill's primary aim
is 'to prevent the introduction of further species in Australia
and to eradicate or control those already here'.[617]
The Bill proposes to do this by inserting
a new 'Division 4AA - Listed invasive species' into Part 13 of Chapter 5 of the
principal Act. Chapter 5 is headed 'Conservation of biodiversity and heritage',
while Part 13 deals with 'Species and communities'.
7.5
The EPBC Act itself had represented the most
fundamental reform of Commonwealth environment laws since the first environment
statutes were enacted in the early 1970s. In particular, it improved on
previous processes by setting out clear areas of responsibility, identifying
specific timeframes for completion, and coordinating State, Territory and
Australian Government processes. The Act focuses Commonwealth interests on
matters of national environmental significance, put in place a streamlined
environmental assessment and approvals process and established an integrated
regime for biodiversity conservation and the management of important protected
areas.
7.6
Importantly, in the context of the longstanding debate
about the appropriate role of the Commonwealth in environmental matters given
the omission of 'the environment' from section 51 of The Constitution,[618] the
Act follows the policy of co-operative federalism first articulated in the 1992
Intergovernmental Agreement on the Environment (IGAE) made between the
Commonwealth and State governments and with representatives of local
government.
7.7
A subsequent COAG meeting in November 1997 resulted in
an in-principle endorsement of the Heads
of Agreement on Commonwealth/State
Roles and Responsibilities for the Environment by all Heads of Government
and the President of the Australian Local Government Association. The Agreement
proposed a framework for comprehensive reform of Commonwealth-State roles and
responsibilities for the environment. The EPBC Bill was one result of the
Agreement. The following concerns were soon expressed:
There is no question that the Bill
is based on a very narrow view of Commonwealth environmental involvement. The
COAG Heads of Agreement identified thirty matters of national environmental significance,
and there can be no justification for restricting Commonwealth involvement in
environmental assessment and approval to a mere six. The six agreed on by COAG
for Commonwealth involvement exclude some of the most significant environmental
challenges facing Australia today - climate change, the clearing of native
vegetation..., the loss and degradation of native forests, and the unsustainable
use of water.[619]
7.8
Thus, the 'narrowness' of the EPBC Act has long been a
bone of contention, based substantially on the range of views on the proper
role of the Commonwealth in the modern era in Australia's federal system of
government in relation to environmental assessment and approval matters. The
ECITA References Committee in the 38th Parliament had undertaken a broad
inquiry into the issue of the Commonwealth's environment powers, which
concluded with a disjoint between senators who felt that the Constitution
should be read expansively and those who felt that a more 'black letter'
interpretation should apply.[620]
7.9
The intention of the current Democrats' Bill
is to establish a consistent and coordinated national approach to address the
problem of invasive species. It seeks to achieve this through the creation of a
national structure. In his second reading speech Senator Bartlett
argued that invasive species are a national issue not only because of the scope
and cost of the problem, but because the majority of invasives arrive in Australia
from overseas, which is an area of exclusive federal jurisdiction. He also
argued that it is a national issue because it cannot be addressed adequately at
a State/Territory level, because invasives know no boundaries.[621]
Provisions of the bill
7.10
For definitional purposes, under the Bill
a species is an invasive species if:
(a) it is a non-indigenous species and it has been, or may be,
introduced into Australia and, either directly or indirectly, threatens, will
threaten or is likely to threaten, the survival, abundance or evolutionary
development of a native species, ecological community, ecosystem or
agricultural commodity; or
(b) it is a genetically modified species.[622]
The definition of a member
of an invasive species is declared to include seeds and germaplasms.
7.11
Under the Bill a list of
invasive species is to be established by the Minister. The list is to be
divided into three categories: species permitted for import, species prohibited
from import or certain invasive species already present in Australia.
The Bill categorises species currently present
in Australia
into the following types:
-
substantially containable;
-
disregarded as an invasive species;
The Bill
then defines what is meant by each of these categorisations.
7.12
The Bill proposes to
immediately prohibit the import of the following species categories:
-
any other species as determined by the Minister,
if the Minister is satisfied, on the advice of the Invasive Species Advisory
Committee, that a species should be deemed to be a prohibited import.[623]
7.13
The Bill goes on to declare that, for the purposes of
the latter provision, it is within the discretion of the Minister to prohibit
the import of a species (on the advice of the Invasive Species Advisory
Committee) if the species is a threat, either directly or indirectly, to the
survival, abundance or evolutionary development of a native species, ecological
community, ecosystem or agricultural commodity.[624]
7.14
The Bill creates a number of strict liability offences,
punishable by fines not exceeding 1000 penalty units (currently set at $110) or
up to 2 years' imprisonment, where a person imports or possesses species which
are either prohibited or, without a permit, which are categorised as either
eradicable; substantially containable; or beyond eradication.
7.15
Subdivision B of the Bill
establishes a permit system which allows for the importation of a species for
commercial sale, trade or propagation of a non-indigenous species providing
that:
-
it is not a prohibited import;
-
it has been assessed as representing a low risk,
in Australia, of threatening, either directly or indirectly, the survival,
abundance or evolutionary development of a native species, ecological
community, ecosystem or agricultural commodity; and
-
the Minister is satisfied, on the advice of the
Invasive Species Advisory Committee, that there are adequate risk management
strategies in place to prevent the species from becoming a threat, either
directly or indirectly, the survival, abundance or evolutionary development of
a native species, ecological community, ecosystem or agricultural commodity;
and
-
the Minister has granted a permit under
Subdivision B for the import of the species.[625]
7.16
One of the Bill's key
administrative proposals is the creation of an Invasive Species Advisory
Committee.[626] The composition of the Committee is to be
determined by the Minister. The function of the Committee is to advise the
Minister on matters relating to the protection of native species, ecological
communities, ecosystems and agricultural commodities form invasive species. It
is also to advise the Minister on methods and means of protecting the welfare
of animals likely to be affected by management decisions relating to invasive
species.[627]
7.17
The Committee is to include at least five members who possess
scientific qualifications relevant to the performance of the Committee’s
functions. The membership must include members appointed to represent the
following:
-
the Australian Quarantine and Inspection
Service;
-
non-government conservation organisations;
-
the scientific community concerned with invasive
species;
-
animal welfare interests.[628]
7.18
The Bill stipulates that
a majority of the members are not to be persons employed by the Commonwealth or
Commonwealth agencies.[629]
7.19
Under the Bill, threat
abatement plans may be created to provide for the management of invasive
species already present in Australia.
The Invasive Species Advisory Committee is to advise the Minister on plans.[630]
Comment on the Bill
Commonwealth view
7.20
The Commonwealth Environment Minister administers the
EPBC Act and his Department, the Department of Environment and Heritage,
provided the Committee with a comprehensive submission on the key elements in
the Bill. It essentially argued that the
proposals were largely redundant as they appeared to duplicate existing law, in
particular that the EPBC Act already provides for further regulations to be
made to control non-native species:
The EPBC Act provides for strict controls on the import and
possession of non-native species and the scope of s301A grants additional
powers that may be established and implemented as appropriate.[631]
7.21
Section 301A (as discussed in Chapter 5) provides that
regulations may:
-
provide for the establishment of a list of
non-native species which may or would be likely to threaten biodiversity in Australia
-
regulate or prohibit the import of species on
the list, and the trade of species on the list between Australia
and other countries and between State and Territory jurisdictions within Australia
-
regulate or prohibit actions involving species
on the list
-
provide for making plans to eliminate, reduce or
prevent impacts of the listed species on Australia's
biodiversity.[632]
7.22
It went on to add:
The EPBC Act provides for strict controls on the import and
possession of non-native species and the scope of s301A grants additional
powers that may be established and implemented as appropriate.
Section 301A of the EPBC Act would appear to address much of
what is proposed in the Bill.
Legal advice indicates that regulations could be made under
Section 301A to control species listed under Section 301A(a) by legislating for
offences relating to the transport or possession of a listed species that would
be enforceable under the EPBC Act.
The development of such regulations under Section 301A of the
EPBC Act would be a significant challenge. It would require significant
resources to be applied by the Department, other Australian government
agencies, State, Territory and Local Government agencies, and relevant industry
and non-government groups and organisations.[633]
7.23
The DEH submission went on to hint that it does not
favour the promulgation of such regulations over its current approach to
managing invasive species using a combination of statutory and non-statutory
methods, because of resource considerations and the impact on a number of
national industries such as the nursery and pet fish trade. It added that:
The Department believes that this approach, which includes
working with State and Territory jurisdictions and a range of other
stakeholders, provides land managers with an adaptive and effective approach to
the management of invasive species in Australia.[634]
7.24
Additional to the advice in the DEH submission about
the Bill's duplication of existing regulations,
in her submission, the Australian Government's Gene Technology Regulator, Dr
Sue Meek,
stressed that the proposed inclusion in the Bill
of 'genetically modified species' in the definition of 'invasive species' also
appears to be unnecessary:
The Australian environment is currently protected from the risks
that may be posed by genetically modified organisms (GMOs) by the Gene Technology Act 2000 (the GT Act) and corresponding State and Territory
legislation. The GT Act requires that a comprehensive, scientifically-based
risk assessment be undertaken for every application to release a GMO into the
environment.
...This proposed amendment would appear to duplicate in the Environment Protection and Biodiversity
Conservation Act 1999 (EPBC Act) the existing requirement in the GT Act for
an environmental assessment and approval process for GMOs.[635]
7.25
The DEH submission also dealt with the GMO issue.
Significantly, it stressed that '[t]here is no scientific basis for assuming
that all GMOs are "invasive"'.[636]
The Committee notes that, in this respect, the Bill
is something of a 'Trojan Horse' in relation to opposition to the use of GMOs
in Australia -
which is a debate for another day.
State/Territory government views
7.26
Two State Governments - Western
Australia and Queensland
- also addressed the need for the Bill, while
the ACT Government's submission commented more on its detail rather than its
general validity. The Animal and Plant Control Commission of South Australia
did not comment on the Bill - it addressed the
issue by detailing its regulatory arrangements and stressing the success of its
current regulatory framework through, inter alia, implementation through local
animal and plant control boards. The Tasmanian Government did not comment on
the Bill in its submission.
7.27
In overview, while they recognised the important role
of the Commonwealth and the opportunities for improvement of current
legislative and administrative arrangements, they shared a concern about the Bill's
intention to usurp the States' constitutional responsibility for the movement
and control of exotic species within their borders. The Commonwealth role was
seen as primarily at the national border,[637]
perhaps with a role in incursion management - i.e. where the border controls
had failed.
7.28
In its submission, the Western Australian Government
stated:
The Environment Protection
and Biodiversity Conservation Amendment (Invasive Species) Bill 2002 has
some merit but falls well short of
the level of improvement required. Some sections of the proposed bill are
unrealistic, unworkable and/or would create a backlash from some sectors...[638]
Its analysis of the Bill's
provisions led it to make the recommendation that a review of existing
Commonwealth legislation should be undertaken to address the specific items
raised in its submission. The Western Australian Government also went on to
recommend that the review should consider whether or not, rather than
legislative change, management arrangements could be put in place covering the
items raised.
7.29
The Queensland Government's submission echoed that of
DEH, arguing that the Bill is not required when
full implementation of the EPBC Act as it currently stands would enable the
Commonwealth to manage both barrier control for invasive species and incursion
management. It wrote that:
Queensland
believes that many of the powers proposed in the Environment Protection and Biodiversity Conservation Amendment
(Invasive Species) Bill already exist in complementary state
legislation or within the EPBC Act in its current form. Given Queensland's
experience of the EPBC Act in other areas where the Commonwealth has taken
pre-emptive and ill advised action (e.g. the declaration of blue grass
communities as threatened ecosystems) Queensland
has major concerns about the potential administrative problems the proposed Bill
will create if implemented. Queensland
considers that without a significant increase in resources it is unlikely that
the amendments in this Bill would be able to
deliver increased action on pests at a national level. Queensland
believes that the Bill in its current form will
lead to significant duplication and conflict with state legislation.[639]
7.30
This latter point was pursued by the Committee with
representatives of the Queensland
Department of Natural Resources, Mines and Energy, Dr
Anthony Pressland
and Mr Craig
Walton. Mr
Walton stated that:
We believe it would lead to duplication mostly on the management
of established pests, because most state agencies and most states already have
actions on those established pests. It most probably would not do that for
incursions because that is a totally different issue. In fact, for
environmental issues at the moment, there is no way to respond to incursions.
It [the Bill] would most probably be a welcome
piece of legislation, especially because, unfortunately, at the moment with
something like a TAP - a threatened species program - the fire ant people have
suggested a TAP process is too slow for a response to an incursion like that...
We just thought, especially for the established pests, that they
[the amendments] would be unnecessary... [but] for non-established pests it would
most probably be a welcome addition to the suite of legislative schemes that
exist at the moment, especially for some of the species, like marine species,
that currently do not come under legislative control as good as that. [640]
7.31
Mr Pressland
summarised the Queensland Government's position in the following terms:
We think that a lot of the activities which are mentioned under
the amendment bill can in fact be done under the existing bill, under section
301A, without amendment.[641]
7.32
The Queensland Government's submission made several
recommendations, but in particular that:
Full implementation of the Environment
Protection and Biodiversity Conservation Act 1999 in its current form would
enable the Commonwealth to manage both barrier control for invasive species of
the environment and incursion management. Section 301, if resourced, can also
allow some national coordination of management of national pests, but not pests
that are better managed by individual states or regions. This should be left to
legislation in other jurisdictions.
Section 301 and other sections of the current Environment Protection and Biodiversity
Conservation Act 1999, if implemented, should allow the Commonwealth to
provide adequate national management of invasive species of the environment
that are either not covered by state legislation or that need some form of over
arching federal legislation e.g. national bans on sale. If this legislation is
not to be used in this way States will need to alter current legislation.[642]
7.33
The ACT Government was strongly supportive of the
Commonwealth's pivotal role in facilitating the development of national pest
management programs, but was less definitive on its view about the need to
respect the existing Commonwealth/State/Territory compact, preferring instead
to stress the desirability of consultation between the Commonwealth and the
States and Territories prior to its taking action.[643]
7.34
The Committee had few submissions to its inquiry from
local government. The Brisbane City Council welcomed the Bill
as a significant step towards the development of appropriate Commonwealth
statutory regulation. It noted that:
It is widely accepted that the development of regulatory
frameworks assists in increasing the awareness of and impetus for greater
energy and resources to be expended on the object of the regulations
A primary concern of Brisbane City Council's as a local
government is that neither State nor Commonwealth invasive species legislation
adequately reflects the seriousness of the problems they seek to address.[644]
7.35
The combined submission of the Local Government
Association of NSW and the Shires Association of NSW was also generally
supportive of the Bill, which it saw as more
clearly classifying pest species, regulates their importation and spread, and
develops and implements Threat Abatement Plans. It observed that the Bill
needed to give greater recognition to local councils, who are: 'the agencies at
the "front line" of weed and invasive species management.'[645]
Community views
7.36
While a certain degree of State and Territory
government antagonism to the Bill's intrusion
into areas for which they have constitutional responsibility was not
unexpected, most community-based submitters were supportive.
7.37
WWF Australia was a strong supporter of the concept of
strengthening the EPBC Act as part of its call to transform current
arrangements to create a National Preventative Framework for Invasive Species.[646]
Its submission recommended that the Commonwealth, in consultation with
the States and Territories, should include provisions in the EPBC to control
invasive species.[647] This statement is a warm endorsement of the Bill,
rather than a definitive expression of support for its contents.
7.38
WWF submitted that:
The Environment Protection
and Biodiversity Conservation Act recognises that cross-border issues, such
as the protection of biodiversity and threatened species, require a national
approach. The increasing problem, scale and severity of invasive weeds and
pests, similarly deserves a statutory national response. Legislation is
required to enable the Commonwealth, in cooperation with the States, to take
timely, effective, proactive and preventative national action on invasive
species. Until a national framework is in place, the slow, uncoordinated and
reactive national response to invasive species will continue.
As such, WWF Australia strongly supports either amendments to
the EPBC Act or development of regulations under s 301A of the Act, to enact
further statutory Commonwealth measures to control non-native species and
mitigate against invasive species problems. The EPBC Act should deal with environmental weeds and pests directly
rather than under ad hoc provisions relating to Key Threatening Processes. This
enables a more comprehensive, strategic and preventative approach to be
adopted.
If enacted the Bill would result
in a positive benefit for the environment and provide more effective control of
invasive species...
The importance of including control of non-native species under
the ambit of the EPBC Act has already been recognised to an extent by the
States: a Commonwealth-State marine pests task force suggests that statutory
support for mitigation and control of established populations of marine pests
could involve a combination of the EPBC Act and the range of State and Northern
Territory legislation. [Footnote: Joint Standing Committee on Conservation
(SCC)/Standing Committee on Fisheries and Aquaculture (SCFA) National Taskforce
on the Prevention and Management of Marine Pest
Incursions. 1999. Report of the Taskforce. Pg.57. Recommendation 4.20
recommends: "that the Commonwealth government explore the option of
developing statutory plans to reduce, eliminate or prevent the impacts of
introduced marine species on the biodiversity of Australia
using s301A of the Environment Protection and Biodiversity Conservation Act
1999. This should be nationally coordinated by Environment Australia, as part
of the National System."[648]
7.39
WWF representative, Mr
Andreas Glanznig,
told the Committee:
...a key threatening process listing and a threat abatement plan
are indirect mechanisms to control invasive species. Look at some of the
emerging second generation State
laws, such as the proposed Biodiversity Conservation Act in Western
Australia. They are proposing to shift this indirect
control to the direct control of invasive species. That is very much in line
with and along the lines of what the Democrats' bill is intending to do as
well...I think a good analogy is threatened species legislation. What is
interesting there is that the Commonwealth put in place pretty much the first
Commonwealth legislation for endangered species. As such, it was able to foster
a standardised approach. As State governments came on stream, they were able to
nest under that. That is the real opportunity with this Bill
or with any regulation or a form of the EPBC Act. You are able to put in place
a national statutory framework under which second generation
State laws, such as those being
developed in WA and the ACT, can nest. Once those second generation
State laws are put in place, again,
we will have missed the opportunity to foster a very strong and tightly
coordinated national statutory framework.[649]
7.40
The Invasive Species Council reinforced much of what
the WWF had submitted, including citing the 1999 Joint Standing Committee on
Conservation/Standing Committee on Fisheries and Aquaculture National Taskforce
Report on the Prevention and Management of Marine Pest Incursions as having
already highlighted the important role of the EPBC Act:
Suffice to say for now that the ISC strongly supports using the
EPBC Act as a basis for regulations to control invasive species... If enacted,
the regulatory regime proposed by the Bill would
have a dramatic and beneficial impact on the environmental problems created by
invasive species... We urge the Senate Committee to take advantage of the
opportunity presented by the Bill to provide a
strong statutory foundation for the management of invasive species,
incorporating many of the recommendations contained in this submission.[650]
7.41
Ms Lucy
Vaughan, an environmental lawyer and
Secretary of the Invasive Species Council, critiqued the Bill
in an article in the July 2003 issue of Feral
Herald, the Council's Newsletter. Ms
Vaughan wrote:
If enacted, there can be little doubt that the Bill
would have a dramatic and beneficial impact on the environmental problems
created by invasive species... The Democrats should be applauded for introducing
the Bill.[651]
7.42
However, she noted that, as with the existing EPBC Act,
the Bill appears to stop short of taking an active regulatory and management
role in relation to the impact of the 'actions' of private persons,
corporations and the States in facilitating the problems brought about by the
introduction and presence of invasive species. She added:
In this way, arguably the Bill
continues to honour and preserve the articulation of Commonwealth and State
roles provided for in the Inter-governmental Agreement on the Environment (IGAE)
in much the same way as the existing EPBC Act. The IGAE is perhaps the
definitive example of the policy of co-operative federalism (the approach
preferred by the current Federal Government) at work.
Whilst the IGAE recognises that the Commonwealth has a
legitimate role in respect of national environmental issues, it gives the
States primary responsibility for environmental management within their
respective jurisdictions. This often leads to the 'hands-off' approach taken by
the Commonwealth in relation to many national environmental problems, like
invasive species...
Whilst it is almost certain that Australia is not 'politically'
ready to adopt the kind of national regulatory scheme for addressing the
problem of invasive species proposed by the Bill, the Bill represents an
excellent opportunity to raise the profile of this issue not only with all
levels of Government in Australia, but also with relevant industry and the
general community.[652]
7.43
The submissions from other peak environmental groups
were also generally supportive of the Bill. For
example, the Conservation Council of WA submitted that:
The Council strongly supports the measures proposed by the
Australian Democrats in the...Bill. In particular,
we support:
-
the requirement for risk assessment before granting
import permits;
-
the strict banning of further imports of pasture
grasses, ornamental plants and aquarium fish; and
-
the creation of an Invasive Species Advisory
Committee.[653]
7.44
Several echoed the WWF comment cited in paragraph 7.38
that there are several provisions in the EPBC Act through which the
Commonwealth could address the environmental harm caused by invasive species at
a national level, but they are seen as inadequate because they use indirect
mechanisms to address the invasive species problem rather than the Bill's
distinct and direct focus.[654] Obviously, they would prefer that invasive
species be targeted directly rather than through their indirect impact on, for
example, threatened species. DEH highlighted one key flaw with this approach,
however: that the introduction of the Bill would
lead to there being two types of threat abatement plans - key threatening
process threat abatement plans and invasive species threat abatement plans. It
noted that a species may be listed as both an invasive species and a key
threatening process, leading to two threat abatement plans for the same
species. It wrote: 'This duplication would not achieve a better conservation
outcome'.[655]
7.45
The Weed Society of Queensland simply saw the proposed
amendments as unnecessary, however:
With the development of clear, directed regulations, Section 301
would deliver effective national outcomes without the need to amend the present
Act.[656]
7.46
Concern was also expressed at the limitation of the Bill
to non-native species. The Tasmanian Weed Society, for example, drew attention
to problems of: '[t]he increasing popularity of native gardens in Australia has
led to a second wave of invasive species derived from Australian plants grown
outside their natural range...'[657] This
issue was also addressed by the Indigenous Land Corporation. While being
generally supportive of the overall thrust of the Bill, and suggesting several
amendments, it added its concern over the failure of the Bill to also address
as 'invasive' indigenous species whose populations get 'out of control',
especially on a regional, bioregional, catchment or jurisdictional level.[658]
7.47
Mr Richard
Sharp, an environmental practitioner and
author of published articles dealing with the issue of 'alien species',
expressed support for the Bill subject to
certain changes being made.[659] In a September 1999 article he wrote:
Today, alien species or those animals, plants and
micro-organisms which are not native to Australia,
are invading to such an extent that they are now posing a serious threat to the
economy and the environment, especially biodiversity. While there have been
some developments in terms of policy and legislation to deal with this problem
in Australia,
at the federal level there remains a need to continue such development in order
to counter the continually growing and global threat of invading alien species.[660]
Committee discussion
7.48
As stated in paragraph 7.1, the Committee's terms of
reference require it to determine whether the Environment Protection and
Biodiversity Conservation Amendment (Invasive Species) Bill 2002 could assist
in improving the current statutory and administrative arrangements for the
regulation, control and management of invasive species. While it is clear to
the Committee that there is scope to improve the national effort to address the
invasive species challenge, it is also clear that the Bill
is not the answer.
7.49
Senator Bartlett
saw the Bill as addressing perceived
inadequacies in the current regulatory framework and as a catalyst to further
debate about the issue of invasive species. It can be argued that the Bill
has been a spectacular success in this latter aspect, moving the debate from
the realms of the cognoscenti to a broader audience. Given the lack of public
appreciation of the scale of the invasive species problem, and the public's
important role in its resolution, the debate on the Bill
should act as a platform for a coherent and determined community effort to
address the matter. It could even be argued that the prospect of a debate on
the Bill may have driven nervous State and
Territory governments to seek to improve their performance, despite the likely
threat of the passage of the Bill being minimal.
7.50
The Bill's single
greatest strength is symbolic. It represents an attempt to codify in one piece
of legislation a range of regulations currently scattered throughout the
statute books which relate to the regulation, control and management of
invasive species. This is a commendable, if somewhat idealistic, approach as
there may be risks and confusion arising from any duplication.
7.51
Its principal drawback is that it duplicates existing
regulations in some aspects. It is perhaps unsurprising that the evidence from
environmental groups was for greater Commonwealth involvement on the basis that
ecological processes do not recognise state borders: '[a] species banned in one State may not be
banned in other States and many are inadvertently or deliberately transported
to an environment where they are dangerous'.[661]
7.52
The Queensland Farmers' Federation's submission
contained a similar theme: while Commonwealth involvement in managing the
threat posed by invasive species is critical, it queried whether a national
statutory foundation was the only way to achieve the co-ordination of already
established State and Territory weed and pest animal management regimes.[662]
7.53
Equally unsurprising was the Bill's
substantial rejection by governments at both Commonwealth and State levels,
notwithstanding State support of regulations under section 301A of the EPBC Act.
The current regulatory system - based as it is on the IGAE, with its emphasis
on environmental protection vested in the States and Territories - is designed
to improve consistency and reduce duplication between the different levels of
government and to increase efficiency of decision-making with regard to
environmental management protection. The Tasmanian Weed Society highlighted
this issue in its submission:
The Bill would benefit from
complementary legislation at the State level as many of its planning functions
and on ground outcomes functions will require State participation. The Weeds of
National Significance program provides some insight to the functioning of the Bill
and demonstrates the stress placed on States to participate in that program
within existing state obligations and programs. Considerable
Commonwealth funding would be
required to assist State and Territories to participate in planning and
management programs under the Bill, particularly
in assisting landholders who carry the responsibility for managing the invasive
species...
It should be noted that for most threat abatement plans to be
produced, the Commonwealth will be dependent on State and Territory
co-operation by virtue of the distribution of most invasive species. The
legislation is likely to be ineffective in the management of invasive species
in Australia if
it does not support and encourage other jurisdictions to participate. The Bill
fails this requirement.[663]
7.54
The Committee is supportive of the Commonwealth, in
consultation with the States and Territories, seriously examining the merits of
proclamation of regulations under section 301A. Support for such regulations as
part of a focussed national regulatory framework were explicitly supported by
both the Queensland and Western
Australian governments.
7.55
The Queensland Government stated that:
Section 301 and other sections of
the current EPBC Act, if implemented, should allow the Commonwealth to provide
adequate national management of invasive species of the environment that are
either not covered by state legislation or that need some form of overarching
federal legislation, eg. national bans on sale.[664]
7.56
The Western Australian Government similarly identified
the useful role of EPBC Act regulations providing a prohibition on sale and
recommended that:
Commonwealth legislation to be
amended to prevent the sales of identified threats, such as Northern Australia
Quarantine Strategy (NAQS) potential species.[665]
7.57
A range of scientific organisations, including the
Weeds CRC, also supported the proclamation of national regulations.
7.58
This is both a logical and necessary step as the
national government needs to be able to represent the nation on an
international basis. Dr Cas Vanderwoude, technical adviser to the Invasive
Species Specialist Group of the International Union for the Conservation of
Nature (IUCN), went so far as to call for the Bill to be expanded to enable the
Commonwealth to operate on a regional basis:
Current Australian legislation does not encompass this
[regionally based threat assessments] strategy and as a result there is no
funding mechanism through which planning and implementation of regional plans ...
can be implemented.[666]
Australia is, of course,
and as described in Chapter 2, a signatory to many important international
agreements designed to protect its environment from invasive species,
particularly the Convention on Biological Diversity and the International
Convention for the Control and Management of Ships Ballast Water and Sediments.
7.59
As has been discussed at length in Chapter 5, section
301A of the EPBC Act already appears to provide a sound statutory basis for the
Commonwealth to exercise a prominent role in the invasive species challenge,
but which is simply foundering for want of will. All the legislation in the
world is not an adequate substitute for a determination to act. While the
Committee commends the framers of the Environment Protection and Biodiversity
Conservation Amendment (Invasive Species) Bill 2002 to seek to highlight the
issues, it is unable to recommend that the Bill
be implemented. Rather, in the final chapter the Committee has set out a range
of measures for reform, including regulations under section 301A, that combine
into a coherent national framework to prevent and control invasive species.
7.60
Creation of such a system of regulation gives the
opportunity for the Commonwealth to provide a lead to the States and
Territories, whose efforts are currently fragmented and undermined by a lack of
coordination. A national regulatory framework to oversee the existing diverse
and disparate range of regulations and laws throughout the States and
Territories can only encourage them to more appropriately implement coordinated
action within and between jurisdictions.