Australian Greens' Additional Comments
Australian agriculture in particular is dependent on high quality
biosecurity arrangements. After climate change, the introduction of pests and
diseases is the biggest threat that this sector faces. Modernising and
consolidating the arrangements that have developed over the past 100 years is a
positive step. However, the Australian Greens are deeply concerned that the
Biosecurity Bill 2014 does not sufficiently safeguard our environment, industry
and community from biosecurity risks or provide the right framework for
ensuring scientific, risk-based assessments are not undermined by other
considerations such as international trade agreements.
The recommendations made in the majority committee report go some way to
addressing the issues that have been identified by submitters, but they do not
go far enough. In particular, the recommendations 2,3,4 and 5 help establish
how the Director of Biosecurity can be more accountable in their assessment
processes but does not ensure that scientific and industry expertise nor
regional variations will be considered. This will be discussed further in these
additional comments, as well as the role of the Director of Biosecurity and the
Inspector General, environmental biosecurity, and the subordinate legislation.
Building on the 2012 Bill
The 2014 Bill builds on the 2012 version, and we welcome the
improvements. However some substantial issues have still not been addressed.
Some of the key areas of concern identified during the 2012 inquiry process
that are still not addressed in the 2014 Bill include:
The failure of the Bill to take account of regional differences
The lack of legislative arrangements that ensure that the Eminent
Scientist Group and other independent industry and scientific advisory channels
are always included in biosecurity processes
The failure to guarantee the independence of the Inspector
General from the Director of Biosecurity
The failure to provide a right of appeal against Director of
For this reason, this report will also draw on evidence from the
previous inquiry in demonstrating the gaps that still need to be addressed
through amendments to the Bill.
Unfortunately, the architecture of this Bill falls short of the highly
regarded Beale Review and fails to fully capitalise on the broad support that
the Review generated.
From the perspective of the Australian Greens, the key recommendation
that has not been implemented is the creation of a separate Biosecurity Agency.
Ms Mellor, Deputy Secretary of the Department of Agriculture, Fisheries
and Forestry, told the committee that:
It is government's decision to not pursue the recommendation
of Beale to establish a separate biosecurity authority and commission, but to
maintain the management of biosecurity under this act in the Department of
Agriculture, Fisheries and Forestry in concert with the Department of Health
The consequence of this decision is significant conflict of interest,
for both the Director of Biosecurity and the Minister. For the Minister
especially there is a significant tension in being directly responsible for
both the Director of Biosecurity and the Inspector-General. Our biosecurity
response should be an arm's-length process and not exposed to politicised
The legislation also leaves too much of the biosecurity review process
at the discretion of the Director and the Inspector General and, in doing so,
fails to bring transparency into the BIRA processes or to encourage industry or
community confidence. In the words of Mr Prince, CEO of Nursery and Garden
It was a key conclusion that the Beale review came up
with—having someone who was independent from the influence of either the trade
or the department of agriculture. This legislation is huge, when you are
looking at animals, humans, plants and environments. It is a very
over-encompassing piece of legislation. For it to sit, or be charged, under the
department of agriculture, which is very focused on primary industry, was one
of the issues that was raised in Beale. You had Biosecurity Australian and
AQIS—two different bodies—almost at loggerheads with each other or having
different processes. So an independent body that has feedback from those other
three ministers would certainly make sense and strengthen the whole process.
The Australian Greens support recommendations 1 through 5 in the
majority report, which outline ways in which transparency and rights to appeal
can be integrated into the legislation, but we would much prefer to have
actually established a separate Biosecurity Agency, with a Director that is not
also the head of Agriculture.
While the legislation has revised to clarify that the Director of
Biosecurity must have regard to the objectives of the Act, it is impossible to
understand how this will work in practise. As stated by Mr Andrew Cox,
President of the Invasive Species Council:
An average person would think, 'How could they possibly not
take into account the other things that are a part of their responsibilities?'
It is one person making a decision, who holds multiple roles. It is a simple
One of the ways that this conflict manifests is through the impact of
international trade agreements on our biosecurity arrangements. While the
Australian Greens support the desire of the Department of Agriculture to
maximise trade between countries, we remain concerned that this responsibility
has an undue influence on the biosecurity arrangements.
Dr Booth, Policy Officer at the Invasive Species Council, noted that:
I think the industry bodies come up with many examples of
where they think there has been an influence of trade on decisions. We have
to—and Bill emphasised this—reduce the risk of that happening. That should be
for whoever is running biosecurity. So independence does that. It takes it out
of a department that has a strong trade focus, so perceived and real conflicts
of interest are avoided in that sense.
Furthermore, negotiations such as those taking place around the TPP-FTA,
which are shrouded in secrecy, do not inspire confidence.
The Australian Greens recommend creating a separate Biosecurity
Agency, with a Director that is separate from the Department of Agriculture
Independence of the Inspector-General of Biosecurity
Similarly, it is our preference that the Inspector-General be a
The decision to not create a statutory Inspector-General position is the
most significant change between the 2012 and 2014 versions of the Bill.
Dropping of the Inspector-General of Biosecurity Bill proposed in 2012 is very
The 2014 Bill instead provides powers to the Minister of Agriculture to
review biosecurity performance. Ms Langford, from the Department of Agriculture,
explained that '[t]he intention is to delegate those to the Inspector-General
of Biosecurity to allow a review of the system to happen.'
However, even if the powers are delegated, this is a backward step from
the arrangement proposed in 2012. The Invasive Species submission outlines why
it is not suitable for the Minister to have this level of control over the
The Minister for Agriculture has a clear conflict of interest
as both Minister administering biosecurity legislation and person responsible
for reviewing biosecurity performance. The areas subject to review are likely
to be influenced by political considerations, and matters that could embarrass
the government of the day are likely to be avoided. The risk of this would be
substantially reduced and the public would have greater trust in the reviews if
they were initiated and conducted by an independent statutory officer.
The majority committee report calls for the findings conducted by the
Inspector General (or any other person delegated this authority) to be made public.
This goes some way to addressing the problem, but it does not prevent the role
from being substantially re-shaped in the future without Parliamentary
The Australian Greens recommend enshrining the independence of
the Inspector-General in legislation by re-introducing the Inspector-General of
Biosecurity Bill 2012.
The Australian Greens are also concerned that this framework legislation
leaves a significant amount of detail about the practical effects of the reform
to subordinate legislation, which has not been made available to the committee.
One of the most significant impacts of this was the failure to give the
committee a clear answer on the role of the Eminent Scientists Group.
Dr Radcliffe explained that there is some risk that if a group of
experts is not clearly established from the outset, then:
...in some technical areas there is a very small pool of
expertise in Australia from which to choose, and it may prove difficult to find
consultants who are not already conflicted through having been involved in the
production of the original BIRA or in preparing responses on behalf of
stakeholders in developing that process. Whilst there is provision for support
staff in the Office of the Inspector-General, I suspect it is unlikely to be
economically feasible to encompass staff numbers with sufficient skills and
experience to cover all possible technical areas across a whole range of
When combined with a lack of transparency or independence, the lack of
clarity about the role of external expertise is concerning.
The Australian Greens recommend that the Bill not be passed until
draft regulations are provided to the committee and industry stakeholders for
If regulations cannot be presented, then the Government should make
clearer commitments around consultation and the inclusion of external experts.
We recognise that the majority committee report seeks for the language
to be improved to ensure that scientific expertise must be sought during an
assessment process and support this.
The Australian Greens believe that we should go one step further
than the majority report and recommend that the consultative arrangements such
as the Eminent Scientist Group be established in the legislation itself.
The environment is subservient to agriculture in this legislation.
Under the current arrangements in the Quarantine Act 1908, there
is a requirement for a Director of Quarantine to consult with the Environment
Minister over decisions that may involve a significant risk of environmental
This requirement is not carried through into the new legislative arrangements.
One consequence of this is that the Director of Biosecurity is not
obligated to include officers from the Department of Environment. The other consequence
was outlined by Mr Cox, from Invasive Species Council, who said:
From a practical point of view, without a statutory basis,
when those subjects are competing for priorities, [the Environment Department]
cannot justify spending any time or any resources on that issue.
To overcome these problems, the Australian Greens recommend that the
Secretary of the Department of Environment or the Environment Minister (as
appropriate) have designated roles in decision-making and policy direction on
important environmental biosecurity issues.
However, the Invasive Species Council noted that it is not enough to
just include environmental biosecurity in the legislation—there needs to be a
corresponding commitment from Government to provide resources to deliver the
environmental components of the biosecurity legislation. According to Mr Cox:
One important institutional change that needs to accompany
this is setting up a body like Plant Health Australia and Animal Health
Australia, which we have called 'Environmental Health Australia'. Those two
other industry-based bodies do great work, and without the foresight,
preparation and risk work that needs to be done on behalf of the environment,
you have not got a good biosecurity system for the environment. We are missing
out. The government is not investing in that, but they are investing in that
for the industry.
The consequence of not having a government institution that focuses on
environmental biosecurity was then outline by Mr Cox, who went on to say:
With myrtle rust—and I will not talk about the whole sorry
saga of myrtle rust which is now in our country—it is one thing that highlights
the role of the community. Because environmental threats are largely in the
public interest, generally there is no-one willing to stump up the money to
deal with them except for government. But when government takes it on, the
current system does not properly involve the community that also shares that
public interest. So with myrtle rust, there was no consultation with the conservation
community or any part of the community beyond the government in the responses.
Whereas, when an ordinary industry based risk happens, the industry is actively
involved right in the centre of the response. The decisions were made quickly
but some wrong decisions were made so that, again, the community was totally
detached and not involved at all. When the environmental response agreement was
put in place early last year we were not consulted. They have just recently
amended it in the last year and we were not consulted. A partnership is about
working with us—we have expertise, though we may not always agree. Again, I
think this bill needs to acknowledge the importance of the role of the
community and actually codify it and make sure, again, that the environment is
also not forgotten.
In order to ensure that environmental biosecurity is prioritised
at all levels of government, the Australian Green recommend establishing and
resourcing an entity that can act as the key body for environment health in the
same manner as Plant Health Australia and Animal Health Australia, and use this
body to establish a partnership between community, governments and
environmental businesses in order to deliver high priority policy and planning
issues in environmental biosecurity.
There are a number of definitions in the Bill that could be strengthened
Invasive Species Council argues that the definition of ‘environment’ in
the Bill (taken from the EPBC Act) is too broad as it can be taken to include
invasive species and it does not distinguish between biota indigenous and non-indigenous
biota and neglects ecological processes.
The Australian Greens recommend changing the definition of
'environment' in Chapter 1, Part 2, Section 9 of the Biosecurity Bill, so that
Australian biodiversity - the variety of life indigenous to
Australia and her external territories, encompassing ecosystem, species and
ecological processes - the interactions and connections between
living and non-living systems, including movements of energy, nutrients and
natural and physical resources.
Similarly, the definition of ‘biosecurity risk’ is not sufficiently
broad enough and could include a reference to regional variations.
The Australian Greens recommend broadening the definition of
'biosecurity risk' in Chapter 1, Part 2, Section 9 to include consideration of
the following matters:
recognise changes through time, to require that risks are
assessed over an ecologically relevant time frame and take account of climate
include the likelihood of new genotypes of a disease or pest
combining with others to exacerbate the potential for the disease or pest to
cause harm or to cause greater harm than existing genotypes; and
recognise regional differences and different levels of
biodiversity (ranging from ecosystem to genetic level).
The Precautionary Principle
The Australian Greens believe that there should be a legislative
requirement to apply the precautionary principle in decision-making under the
This could include adding a note to the ‘Appropriate level of
protection’ in Chapter 1, Part1, Section 5 which specifies that if there is
insufficient evidence to determine biosecurity risk, or if the available
evidence is inconclusive in that regard, then the precautionary principle will
For an example as to how this could operates in practise, we can refer
to the Queensland Biosecurity Act 2014 (Chapter 1, Part1, Section
5(c)) which uses the precautionary principle as a trigger for action through the
following clause in Chapter 1, Part 1, Section 5(c):
including in risk-based decision-making under this Act the
principle that lack of full scientific certainty should not be used as a reason
to postpone taking action to prevent a biosecurity event or to postpone a
response to a biosecurity risk.
The Australian Greens recommend that the Bill be amended to
include reference to the precautionary principle.
The legislation provides a range of biosecurity zones that can be
established by the Director of Biosecurity. However, there is no specific
framework for creating zones in high value conservation areas for the purpose
of implementing biosecurity measures.
The submission from Invasive Species Council identifies three situations
in which such zones would be useful:
Protecting islands from re-invasion by eradicated species:
Australia has recently been investing substantial resources in eradicating
invasive species from islands – for example, cats, rabbits and rats from
Macquarie Island and goats, pigs, cats and rats from Lord Howe Island.
Biosecurity zones could be established to provide the basis for implementing
regulations and protocols to limit the risks of re-invasion or new incursions.
Protecting seabird nesting islands: Many islands
important for seabirds are at great risk of accidental (or sometimes
deliberate) release of invasive predators, such as rats and mice, or weeds or
ants. Biosecurity zones could be declared to provide a nationally consistent
basis for regulating activities that pose biosecurity risk such as visitation
by fishing boats or yachts.
Buffering high value areas from biosecurity risk:
Although managers (whether government or private) of high value conservation
areas have the lawful capacity to manage invasive species on their land, they
are usually powerless to manage activities or monitor pests or diseases in
adjacent areas that threaten their land. Conservation biosecurity zones could
be used as the basis for managing or monitoring buffer areas to provide
protection for high value areas at risk.
These zones could be declared by the Secretary of the Environment
Department on advice by a scientific committee (such as the Threatened Species
Scientific Committee), and provide the framework within which biosecurity
arrangements are negotiated through bilateral agreements with state and
The Australian Greens recommend establishing a category of
biosecurity zone for high value conservation areas with high biosecurity risks
known as ‘conservation biosecurity zones’, as the basis for implementing
biosecurity measures, plans and monitoring.
The majority committee proposes that reports that are generated by the
Inspector-General should be tabled in Parliament.
The Australian Greens believe that the reporting requirements for
this legislation should go further and recommend that there should be a
requirement to table biosecurity outlook report every two years.
Regional variations are significant in Australia and should be accounted
for in our biosecurity arrangements.
The 2014 legislation has improved how Biosecurity Import Risk Analyses
(BIRAs) can take account of the regional variations. However, the substantive
information will be contained in regulation.
The majority committee view is that the Department has made sufficient
modifications to the Bill and the majority report makes no further
recommendations but the Australian Greens remain unconvinced that simply giving
the power to consider regional variations will deliver the best result.
A WA perspective on this issue was presented by Mr Delane, who told the
We all have experience on this, and if it is not in the
legislation then it is more changeable in regulations, and if it is a matter of
policy then it is not only changeable by government and the department of the
day but it is open to interpretation at an operational level as well. We do
appreciate the challenges for the Commonwealth in dealing with different
measures—goods coming into Fremantle, to Western Australia and so on versus
eastern Australia, and having officers applying different measures here from
elsewhere. We do not see that additional complexity as being a matter of great
material for the national authority. We should, through the measures applying
international entry points, be trying to protect every part of Australia rather
than, if you like, moving quite quickly towards the lowest common denominator
for biosecurity status in this nation.
Similarly, in the discussion of ballast water discharge and the
management of the marine environment, it was not always clear whether the move
to a national approach allowed for regional variations.
The Australian Greens recommend that the legislation state
clearly those regional variations both on land and in the marine environment
must be considered in Biosecurity Import Risk Analyses.
The Department has stated that there will be no additional financial
resources to support the development of biosecurity arrangements.
The Australian Greens support the recommendation in the majority
committee report that there be more training for biosecurity officers. But
again we believe the Government needs to make a clearer commitment to
maintaining a high level of biosecurity in Australia.
The Australian Greens recommend that sufficient funding be
allocated by Government to ensure that the arrangements that are proposed under
the Bill can be properly implemented.
The Australian Greens welcome the modernisation of Australia’s
biosecurity arrangements. We would have preferred that the Bill go further and
make the big structural reforms that were recommended in the Beale Review. This
would have ensured that the legislation was robust and that the focus is on
scientific principles of risk management.
The Australian Greens support the recommendations in the majority
committee report, but also go further in suggesting a range of recommendations
to strengthen the Bill.
The Bill should be amended as per the recommendations in this
report before it is passed.
Senator Rachel Siewert
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