Invasive Species Council - Democrats Bill

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- review of Democrats Invasive Species Bill
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The Environment Protection and Biodiversity Conservation Amendment (Invasive Species) Bill 2002 was tabled in Federal Parliament by the Democrats on 19 November 2002. At the time of writing, the Bill has not yet been debated in the Parliament.

The ISC applauds the tabling of this Bill. In this article, ISC Councillor Lucy Vaughan, reviews the Bill, describing its main instruments, and highlighting several important limitations.
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A Quick Look at the Democrats' Environment Protection and Biodiversity Conservation Amendment (Invasive Species) Bill (2002)
by Lucy Vaughan (Secretary, Invasive Species Council and Environmental Lawyer)
reprinted from Feral Herald, volume 1 issue 4, July 2003

(Note: The views expressed in this article do not necessarily reflect the views of the Invasive Species Council, or Maddocks Lawyers)

The Environment Protection and Biodiversity Conservation Amendment (Invasive Species) Bill 2002 ('the Bill') proposes to introduce a national regulatory structure in order "to prevent the introduction of further species in Australia and to eradicate or control those already here".¹

It proposes to do this by amending the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ('EPBC Act'), and in particular, by inserting a new division 4AA called "Listed Invasive Species" into Part 13, Chapter 5 of the EPBC Act which otherwise deals with 'species' and 'ecological communities' and the 'conservation of biodiversity'.

The Bill proposes to define "invasive species" as a "non-indigenous species" which: "...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 which is "a genetically modified species".²

The starting point for this national regulatory structure is the establishment of a list of invasive species, in which species will be included in one of the following categories:
(a) species determined by the relevant agency or Minister to be permitted for import;
(b) species determined by the relevant agency or Minister to be prohibited for import;
(c) invasive species of the following types currently present in Australia:
  (i) eradicable,
  (ii) substantially containable,
  (iiii) beyond eradication,
  (iv) controlled,
  (v) disregarded as an invasive species,
  (vi) exempt from listing.³

Prohibited Imports
In order to prevent the introduction of further species into Australia, the Bill proposes to immediately prohibit the import of the following categories of species:
(a) pasture grasses;
(b) ornamental plants;
(c) aquarium fish;
(d) 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.⁴

It is within the discretion of the Minister to prohibit the import of a species under (d) above on advice from the Invasive Species Advisory Committee (also established by the Bill) 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 community".⁵

Ministerial Permits
The Bill establishes a permit system whereby the Minister can issue a permit for the commercial sale, trade or propagation of a non-indigenous species in certain situations, including:
(a) where there is a demonstrated need for the species to be used in food production in Australia;
(b) where there is a low risk that the species will have an impact on listed threatened species or ecological communities; and
(c) where the Minister has approved an invasive species threat abatement plan for the species.⁶

Offences
The Bill also creates a number of offences where a person imports or possesses species which are either prohibited or which are categorised as eradicable, substantially containable, or beyond eradication, without a permit.⁷

Managing Existing Invasive Species
The Bill also proposes a number of practical management strategies for dealing with invasive species already in Australia, including establishing a process for the creation of an "invasive species threat abatement plan" in co-operation with relevant States.⁸

These invasive species threat abatement plans improve on existing 'threat abatement plans' currently provided for under the EPBC Act, in two ways:
i) they facilitate a preventative approach to dealing with invasive species
(current 'threat abatement plans' are only triggered at the point when the existence of a threatened species or ecological community hangs in the balance);
ii) they may, under certain circumstances, be implemented by the Commonwealth outside 'Commonwealth areas'
(this is a qualified improvement on current 'threat abatement plans' which can never apply outside 'Commonwealth areas').

However, it should be noted that, as currently drafted, the Bill appears only to require Commonwealth agencies (i.e. not state agencies) to comply with the invasive species threat abatement plan.⁹ The ultimate effectiveness of this management strategy must therefore be questioned.

Discussion
The establishment of a national list of invasive species is a constructive beginning to any attempt to provide a national regulatory framework for invasive species. There remain, however, issues with the definition on which the list (and the Bill) rests.

The definition of invasive species, whilst fairly broad, nevertheless does not capture those native species which could be considered 'invasive' if occurring beyond its accepted normal distribution and which is adversely impacting on local native species and ecosystems.

In fairness, Senator Bartlett has acknowledged the difficulties in defining 'invasive species'. In the Second Reading Speech, Senator Bartlett stated that "[i]n introducing this bill, the Democrats recognise that questions of what is natural and what is invasive are legitimate and extremely difficult questions to resolve," but that it was still necessary to have a workable definition of invasive species.¹⁰ Point taken.

A far more serious weakness in the proposal for a national regulatory structure for the control and management of invasive species put forward by the Bill, is that it does not propose to include 'invasive species' as a matter of national environmental significance.¹¹

Matters of 'national environmental significance'¹² operate as the triggers for the environmental impact assessment provisions under the EPBC Act.

These environmental impact assessment provisions establish 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 any of the nominated matters considered to be of 'national environmental significance'.

Given that the damage caused by invasive species has largely been attributed to human activity, it is a curious omission. There are plenty of examples where 'actions'¹³ have resulted in both native and exotic flora and fauna expanding its range and becoming an invasive species.

The National Weeds Strategy has identified the introduction of para grass (Brachiaria mutica) as a case in point. Para grass was introduced by farmers as a pasture grass for wet areas, but it has spread to places like Kakadu National Park where "it is now a threat to wildfowl habitats, shallow wetlands and streams in tropical and temperate Australia".¹⁴

An environmental impact assessment of the 'action' of sowing a new pasture grass (which under the Bill would have been listed under one of the identified categories of invasive species) could have prevented the threat it now poses to biodiversity, by either preventing the introduction of the pasture grass altogether or ensuring that effective measures were taken in order to mitigate the possibility of it 'escaping'.

Urban development is another case in point. In his book, Feral Future, Tim Low complains of the times when he has served as an expert witness in the Planning and Environment Court "warning that a new housing estate would send waves of new weeds into nearby forests."¹⁵

Again, this kind of environmental harm could be prevented if such 'actions' were expressly required to consider the impact they would have on facilitating or contributing to the spread of invasive species.

An assessment of the impact that the 'actions' of private persons and corporations as well as governments and their agencies could have, and do have, in facilitating the introduction or further spread of invasive species is essential if a national regulatory structure for invasive species is to be effective.

Conclusion
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.

As with the existing EPBC Act, however, it appears to stop short of taking on 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.

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)¹⁶ 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.

The Democrats should be applauded for introducing the Bill.

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 presents 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.

Lucy Vaughan is an ISC Councillor and environmental lawyer with Maddocks Lawyers in Melbourne, email lucy.vaughan@maddocks.com.au

Footnotes
¹ The Parliament of the Commonwealth of Australia, Hansard, 19 November 2002 (Senator Bartlett, Environment Protection and Biodiversity Conservation Amendment (Invasive Species) Bill 2002, Second Reading Speech)
² 266AB.
³ 266AA.
⁴ 266AC(2).
⁵ 266AC(3).
⁶ 266BE.
⁷ 266BA.
⁸ 266CA.
⁹ 266CB.
¹⁰ Senator Bartlett, Second Reading Speech, above n1.
¹¹ Which could be facilitated in the current drafting of the EPBC Act by listing the preservation of biological diversity as such a matter.
¹² Currently, these matters (which are set out in Part 3 of the EPBC Act) include: world heritage properties, wetlands of national importance (i.e. declared Ramsar wetlands), listed threatened species and communities, listed migratory species, nuclear actions and Commonwealth marine areas.
¹³ defined by the EPBC Act to include a project, a development, an undertaking, an activity or series of activities or any alteration to any of these so called 'actions'.
¹⁴ Commonwealth of Australia, The National Weeds Strategy: A Strategic Approach to Weed Problems of National Significance (1997) 20, 31.
¹⁵ Low, T., Feral Future: The Untold Story of Australia's Exotic Invaders, (1999), 74.
¹⁶ made in 1992 between the Commonwealth and State Governments (and representatives of Local Government).