controlling invasive species: managing risks to australia's agricultural sustainability and...

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This article was downloaded by: [The Aga Khan University] On: 05 November 2014, At: 21:09 Publisher: Taylor & Francis Informa Ltd Registered in England and Wales Registered Number: 1072954 Registered office: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK Australasian Journal of Environmental Management Publication details, including instructions for authors and subscription information: http://www.tandfonline.com/loi/tjem20 Controlling Invasive Species: Managing Risks to Australia's Agricultural Sustainability and Biodiversity Protection Lee Godden , Rebecca Nelson & Jacqueline Peel Published online: 28 Feb 2012. To cite this article: Lee Godden , Rebecca Nelson & Jacqueline Peel (2006) Controlling Invasive Species: Managing Risks to Australia's Agricultural Sustainability and Biodiversity Protection, Australasian Journal of Environmental Management, 13:3, 166-184, DOI: 10.1080/14486563.2006.9725130 To link to this article: http://dx.doi.org/10.1080/14486563.2006.9725130 PLEASE SCROLL DOWN FOR ARTICLE Taylor & Francis makes every effort to ensure the accuracy of all the information (the “Content”) contained in the publications on our platform. However, Taylor & Francis, our agents, and our licensors make no representations or warranties whatsoever as to the accuracy, completeness, or suitability for any purpose of the Content. Any opinions and views expressed in this publication are the opinions and views of the authors, and are not the views of or endorsed by Taylor & Francis. The accuracy of the Content should not be relied upon and should be independently verified with primary sources of information. Taylor and Francis shall not be liable for any losses, actions, claims, proceedings, demands, costs, expenses, damages, and other liabilities whatsoever or howsoever caused arising directly or indirectly in connection with, in relation to or arising out of the use of the Content. This article may be used for research, teaching, and private study purposes. Any substantial or systematic reproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in any form to anyone is expressly forbidden. Terms & Conditions of access and use can be found at http:// www.tandfonline.com/page/terms-and-conditions

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Page 1: Controlling Invasive Species: Managing Risks to Australia's Agricultural Sustainability and Biodiversity Protection

This article was downloaded by: [The Aga Khan University]On: 05 November 2014, At: 21:09Publisher: Taylor & FrancisInforma Ltd Registered in England and Wales Registered Number: 1072954 Registered office: MortimerHouse, 37-41 Mortimer Street, London W1T 3JH, UK

Australasian Journal of Environmental ManagementPublication details, including instructions for authors and subscription information:http://www.tandfonline.com/loi/tjem20

Controlling Invasive Species: Managing Risks toAustralia's Agricultural Sustainability and BiodiversityProtectionLee Godden , Rebecca Nelson & Jacqueline PeelPublished online: 28 Feb 2012.

To cite this article: Lee Godden , Rebecca Nelson & Jacqueline Peel (2006) Controlling Invasive Species: Managing Risksto Australia's Agricultural Sustainability and Biodiversity Protection, Australasian Journal of Environmental Management,13:3, 166-184, DOI: 10.1080/14486563.2006.9725130

To link to this article: http://dx.doi.org/10.1080/14486563.2006.9725130

PLEASE SCROLL DOWN FOR ARTICLE

Taylor & Francis makes every effort to ensure the accuracy of all the information (the “Content”) containedin the publications on our platform. However, Taylor & Francis, our agents, and our licensors make norepresentations or warranties whatsoever as to the accuracy, completeness, or suitability for any purpose ofthe Content. Any opinions and views expressed in this publication are the opinions and views of the authors,and are not the views of or endorsed by Taylor & Francis. The accuracy of the Content should not be reliedupon and should be independently verified with primary sources of information. Taylor and Francis shallnot be liable for any losses, actions, claims, proceedings, demands, costs, expenses, damages, and otherliabilities whatsoever or howsoever caused arising directly or indirectly in connection with, in relation to orarising out of the use of the Content.

This article may be used for research, teaching, and private study purposes. Any substantial or systematicreproduction, redistribution, reselling, loan, sub-licensing, systematic supply, or distribution in anyform to anyone is expressly forbidden. Terms & Conditions of access and use can be found at http://www.tandfonline.com/page/terms-and-conditions

Page 2: Controlling Invasive Species: Managing Risks to Australia's Agricultural Sustainability and Biodiversity Protection

166 AUSTRALASIAN JOURNAL OF ENVIRONMENTAL MANAGEMENT—Volume 13

Controlling Invasive Species: Managing Risks to Australia’sAgricultural Sustainability and Biodiversity Protection

Lee Godden, Rebecca Nelson and Jacqueline Peel*

Previously, Australia relied primarily upon stringentquarantine controls on imported plant and animalgoods to prevent the entry of invasive species.

However, the recent introduction of new internationalrules supervised by the World Trade Organisation,requiring national authorities to demonstrate a ‘soundscientific basis’ for quarantine measures implemented forplant or animal health purposes, may make it difficult forAustralia to rely as heavily upon quarantine as it hasdone in the past. It is in this context that this articleassesses the existing domestic legal and institutionalframework for invasive species control as a factor ofgrowing significance for the management of Australia’sbiodiversity and agricultural sustainability.

The overview of the current Australian regulatoryframework illustrates the widely disparate approaches toinvasive species control at a state and territory level andthe significant gaps and inconsistencies within eachjurisdiction and across jurisdictions. In part, thedisparity in regulatory approaches reflects ambiguities inthe scienti f ic term ‘invasive species’, leading tovariability in the meaning of the term’ invasive’ whenused in legislation and policy. Historically, also, themain focus of invasive species regulation has been uponthe control of agricultural pests in primary industries,which produced a management framework at stategovernment level predominantly concerned withidentifying and managing single pest species in thecontext of agricultural production. By contrast, theCommonwealth Government’s role has largely beenconfined to ‘ indirect governance’ in the form ofproviding policy coordination and funding incentives.While the need to move to a holistic, environmentalmanagement focus is clearly recognised - and there arerecent efforts in this direction - the scope of the risksassociated with invasive species in Australia arguablyrequires not only greater institutional co-ordination butalso a significant change towards a nationally-ledproactive regulatory approach.

This article analyses the extent to which the currentlegislative and regulatory framework has adopted best

practice environmental management principles to thisend, as well as recent recommendations for an enhancednational strategy emanating from the Senate Inquiryconsidering amendments to the federal Environmental

Protection and Biodiversity Conservation Act 1999, Cth[EPBC Act]. The Senate Inquiry recommended reforms,which while they signal a move toward a more coherentnational framework, arguably do not go far enough inaddressing the growing risks posed by invasive species.In particular, the recommended reforms neglect theopportunity offered by the EPBC Act to define a decisivero le for the Commonweal th in invas ive spec iesregulation, guided by well-accepted environmentalprinciples that promote long-term sustainability.

* Lee Godden, Rebecca Nelson and Jacqueline Peel are with theFaculty of Law, The University of Melbourne, Victoria 3010;Contact author’s email: [email protected].

Introduction: Invasive species, agriculturalsustainability and biodiversity

Australia offers something of a paradox. On the one

hand, Australia is a major region of biodiversity, yet its

economy remains heavily dependent upon primary

industries, such as agriculture. The health of many

agricultural industries, as well as fisheries and tourism, is

underpinned by Australia’s complex ecosystems with

their unique and diverse flora and fauna (Senate ECITAR

Committee 2004). As an island continent, Australia has

been comparatively free from many plant and animal

pests and diseases present in other parts of the world

( JCPAA 2003) . None the less , whi le Aus t ra l i a ’ s

geographical isolation has given it some defence from

invasive species, there are some significant invasive

species that have been in the country for a very long time,

such as European rabbits (Oryctolagus cuniculus),prickly pear (Opuntia spp.), Paterson’s curse (Echiumplantagineum) and many others. At the outset, it is noted

that the scientific term ‘invasive species’ has resisted

‘ u n e q u i v o c a l d e f i n i t i o n ’ ( G r i c e 2 0 0 4 , p . 5 1 ) .

Accordingly, the term is used in a general sense here, but

the article later considers how the ambiguity in defining

‘invasiveness’ is linked to more systemic problems of

invasive species regulation.

In recent times, the threats posed by invasive species to

both agricul tural sustainabi l i ty and biodiversi ty

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Page 3: Controlling Invasive Species: Managing Risks to Australia's Agricultural Sustainability and Biodiversity Protection

167September 2006

protection have been accentuated. Overseas, outbreaks in

European countries of pests and diseases, such as ‘Mad

Cow’ disease (Creutzfeldt-Jacob disease in humans,

Bovine Spongiform Encephalopathy in cows) and the

viral ‘Foot and Mouth’ infection (Lee et al. 2004), have

underscored the vulnerability of primary industries to

new forms of introduced diseases. Rapid advances in

technological f ields, such as the development of

genetically modified organisms, further illustrate the

need for a sophisticated risk management system for

invasive species control. These factors, when combined

wi th the extens ive cos ts involved in pro tec t ing

biodiversity through the control of introduced plants and

animals, such as noxious weeds (Arcioni 2003), reveal

the dimensions of the problems associated with invasive

species (see Senate ECITAR Committee 2004).

‘Eradication’ of an invasive species denotes ‘the

complete and permanent removal of all wild populations

from a defined area by a t ime-limited campaign’

(Woldendorp et al. 2004, p. 492 citing Bomford and

O’Brien 1995). In practice, the eradication of a plant pest

on a regional, state or national level is not normally a

feasible solution and other options, such as suppression

by biological control, are more likely to be implemented.

This is because the eradication of a plant is a ‘complex’

task which ‘often cannot be claimed as easily as with

animal pests due to longevi ty of the seed bank’

(Woldendorp et al. 2004, p. 492 citing Simberloff 1997).

However, eradication may be a feasible, cost-effective

solution with a high probability of success in limited

circumstances where the plant population is ‘restricted in

distribution’ and ‘if potential invasives are treated during

their establishment or “lag phase”’ (Woldendorp et al.2004, p. 492 citing Soria et al. 2002). Since sleeper

w e e d s a r e b y d e f i n i t i o n i n t h e ‘ l a g p h a s e o f

establishment, before rapid proliferation and spread

occurs’ (Woldendorp et al. 2004, p. 492), eradication

may be preferable to long-term biological control as a

solution for sleeper weeds.

Although in the majority of cases, biological control

tends to be regarded as ‘the only safe, practical, and

economically feasible method [of weed control] that is

sustainable in the long term’ (McFadyen 1998, p. 386)

with ‘a long and successful history in Australia’

(McFadyen 2004, pp. 78-81), even this method is not

w i t h o u t i t s p r o b l e m s . A g r o w i n g n u m b e r o f

commentators (e.g. Louda et al. 1997; Pemberton 2000;

Louda et al. 2003; Sheppard et al. 2003) have expressed

concern that, in rare instances, bio-control agents may

damage non-target, rare, native species, that is, attack

species other than the weed (Taylor et al. 2004). For

example, Aconophora compressa (Lantana treehoppers or

sap-sucking bugs) were released against Lantana camara

L. in 1995 but are now attacking several non-target

species, most notably f iddlewood, Citharexylumspinosum L. (Taylor et al. 2004 citing Anonymous 2003).

Given the difficulties of eradicating pests and diseases

once they penetrate the country’s borders, in the past,

Australia primarily relied upon stringent quarantine

controls on imported plant and animal goods as a

proactive measure to prevent the entry of invasive

species. Currently, for example, Australia, as part of its

quarantine measures, has a weeds risk assessment

process. However, this approach has failed to prevent the

introduction of large numbers of pest plant and animal

species, many of which were deliberately introduced. The

continuing viability of this approach has further been

called into question by new international rules supervised

by the World Trade Organisation (WTO), the global body

that regulates trade between nations.

WTO ru les now requ i re na t iona l au thor i t i e s to

demonstrate a ‘sound scientific basis’ for quarantine

measures implemented for plant or animal health

purposes, limiting the scope for protections to be

introduced in conditions of scientific uncertainty. Given

the potential for current levels of quarantine risk to be

lowered, it is imperative that Australian domestic laws be

strengthened to manage invasive pests and diseases

proact ively (e .g . WWF Austra l ia 2003) through

facili tation of a co-ordinated and comprehensive

approach to invasive species control in legislation and

policy. Hence, ‘[t]he challenge for Australia is to find

measures which enable Austral ia to preserve i ts

biodiversity without flouting international obligations and

therefore becoming subject to World Trade organisation

actions…’ (Senate ECITAR Committee 2004, p. 60).

To this end, there is an urgent need to reorient invasive

species controls away from predominantly reactive post-

quarantine pest eradication measures. Quarantine

measures are essentially proactive, but can only be one

part of the move toward a more holistic approach that

regulates invasive species in the context of wider

environmental management and biodiversity protection

regimes. This goal is emphasised in a 2004 Federal

Senate Inquiry report, which noted that

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 (Senate ECITAR

Committee 2004, p. 60).

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168 AUSTRALASIAN JOURNAL OF ENVIRONMENTAL MANAGEMENT—Volume 13

In this context, the Federal Senate Inquiry report assesses

the existing domestic legal and institutional framework

for invasive species control as a factor of growing

signi f icance for the management of Aust ra l ia ’s

biodiversity and agricultural sustainability. The overview

of the current Australian regulatory framework illustrates

the widely disparate approaches to invasive species

control at a state and territory level and the significant

gaps and inconsistencies within each jurisdiction and

across jurisdictions.

Historically, the main focus has been upon the control of

agricultural pests in primary industries which produced a

management framework at state government level

p redominan t ly conce rned wi th iden t i fy ing and

eradicating individual pest species in the context of

agricultural production. While the need to move to a

holistic, environmental management focus is clearly

recognised - and there are recent efforts in this direction -

the scope of the risks associated with invasive species

within Australia arguably requires not only greater

institutional co-ordination but a significant change

toward an environmental risk management perspective.

The Federal Senate Inquiry report analyses the extent to

which the current legislative and regulatory framework

has adopted best practice environmental management

principles to this end. In this discussion, the article

considers recent recommendations for an enhanced

national strategy emanating from the 2004 Senate

Inquiry, which considered amendments to the Federal

Environmental Protection and Biodiversity ConservationA c t 1 9 9 9 ( E P B C A c t ) . T h e S e n a t e I n q u i r y

recommendations, while signalling a move toward a more

coherent national framework, arguably do not provide a

sufficient change in the underlying management

paradigm to address effectively the growing risks posed

by invasive species.

The dimensions of the invasive speciesproblem

Invasive species of all types have had, and continue to

have, a dramatic impact on both agricultural systems and

indigenous biodiversity within Australia (Senate

ECITAR Committee 2004). Invasive species were

identified as the biggest threat to biodiversity after land

clearance in recent State of the Environment reports

(Williams et al. 2001). Ironically, many serious invasive

species were introduced to assist in agriculture and

conservation, for example, through deliberate trials of

new pasture grasses or in attempts to control already

established pests (Williams et al. 2001). While many

introduced plant and animal species do not become

invasive, nonetheless, it is significant to note that one of

the most impor tan t invas ion pa thways for both

agricultural and environmental weeds is through

deliberate introductions as ornamental plants (Senate

ECITAR Committee 2004).

In the agricultural context, invasive species threaten

economic viability and the natural resource base on

which agriculture relies (RIRDC 1998). They affect farm

income through the management costs of controlling

weeds, stock and crop diseases, and vertebrate pests, and

the inevitable production losses from predation, crop

damage, and competition for feed (Senate ECITAR

Committee 2004). Such is the impact of some invasive

species, such as wild dogs, that they threaten the

immediate viability of cattle and sheep farming in some

parts of Australia (Senate ECITAR Committee 2004).

Some invasive species, such as rabbits and feral goats,

also contribute to overgrazing, causing land degradation.

Australia’s long geographical isolation has led to a

particularly rich biodiversity that is also unfortunately

particularly vulnerable to introduced species and

pathogens (Senate ECITAR Committee 2004). Grazing

by invasive pest animals damages native vegetation,

which in turn, reduces shelter and food available for

native fauna and causes soil erosion. Other pest animals

prey on native fauna (Senate ECITAR Committee 2004).

Pest plants reduce the diversity and abundance of native

plants by competing for food and water, shading out

lower levels of vegetation, and altering fire regimes; at

the extreme, they can invade natural ecosystems and

cause to ta l l andscape change (Sena te ECITAR

Committee 2004). Further, serious risks are posed to

Australia’s unique marine biodiversity.

Invasive species have a powerful overall effect on

biodiversity and agricultural sustainability. Virtually all

Australian vegetation communities are affected by

invasive environmental weeds (Williams and West

2000). Although there is a wide spectrum of degrees of

invasion, over 15 million hectares of grazing land and

natural ecosystems are badly affected (WWF Australia

2003). The economic costs of pest plants and animals

(mainly to agriculture) are estimated at $4 billion and

$420 million, respectively (WWF Australia 2003).

Unsurprisingly, therefore, farmers consider that weed

control is the highest priority land degradation issue

(BRS 2003). Indeed, the severity of land and water

degradation, including invasive species impacts, has

prompted calls to address these problems as a matter of

national priority.

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Whilst as a matter of science, this article generally

accepts the conventional view that invasive species cause

severe depletion of biodiversity and that this requires

urgent concerted action, it must be acknowledged that

this is by no means a unanimous opinion within the

scientific community. There is considerable debate as to

the degree to which concern about invasive species is

driven by an irrational fear of ‘aliens’ rather than a sound

scientific understanding of the phenomenon. Brown and

Sax (2004, pp. 531-532) ‘plead for more scientific

objectivity and less emotional xenophobia’ in relation to

invasive species, pointing out that ‘scientists know that

the earth and its biota have always been very dynamic in

space and time’ and hence ‘viewed relative to the sweep

of evolutionary and biogeographical history, the

magnitudes and consequences of recent human-assisted

invasions are large but hardly unprecedented’. Brown and

Sax (2004, pp. 531-532) even go so far as to argue that

‘throughout its history of isolation Australia has alwaysbeen subject to [biological] invasion’ and ‘biological

invasions are nothing new’. Furthermore, they observe

that even human-assisted invasions of species are nothing

new as in the past Aboriginal humans often had major

impacts on biodiversity and habitats; for example, ‘the

present high biodiversity in Kakadu National Park in

northern Australia was maintained by Aboriginal burning

practices’ (Brown and Sax 2004, p. 532). Moreover,

G r i c e ( 2 0 0 4 ) o b s e r v e s t h a t t h e r e i s a g e n e r a l

misapprehension that weed impacts on Australian

biodiversity are well-researched and extensively

documented, when in reality, very little has actually been

quantified.

On the other hand, Cassey et al. (2005, pp. 477-478)

argue that ‘current human-driven invasions are notsimply the modern expression of a natural process’ since

they differ in rate, magnitude, distances and agency

involved from earlier self-perpetuated colonisation events

and hence they are ‘a genuine threat to the livelihoods,

way of life and life itself, of populations and species on

every landmass on earth’. Brown and Sax (2005, p. 481)

respond that the differences in the quality and magnitude

of these invasions, and their effect on biodiversity and

ecological processes on local, regional and global scales,

is not as large as Cassey et al. (2005) claim and that

many consequences are not unprecedented; for example,

‘more than half the “native” taxa now occurring in some

regions are descended from invaders that colonised as a

consequence of historic biotic exchanges’ (Brown and

Sax 2005, p. 481 citing Vermeij 2005).

Australia’s approach to invasive speciesA rose by any other name – might be a weed: Defining‘invasive species’

Plants, animals, insects and other invertebrates, diseases,

fungi and parasites can all constitute ‘invasive species’

(DEH 2004a). While most definitions of ‘invasive

species’ focus on a particular, identified ecological

impact, for example, on native species or agricultural

commodities, there is no general consensus on its

meaning among invasion ecology theorists. In some

classifications, for example, the definitions are taxonomic

descriptions rather than descriptions of ecological

phenomena, meaning that a species is always ‘invasive’,

regardless of its impact in a particular habitat (Colautti

and MacIsaac 2004).

Perhaps the most authoritative scientific definition of an

‘invasive species’ is that offered by Richardson et al.(2000, pp. 93-94) who draw a clear distinction between

‘naturalised’ and ‘invasive’ species — the former process

starts when the introduced plant’s abiotic and biotic

barriers to survival are surmounted and when various

barriers to regular reproduction are overcome, whilst the

latter further requires that the introduced plant produces

reproductive offspring in areas distant from sites of

introduction. This distinction is crucial because it is the

shift from ‘naturalised, non-invasive’ to ‘invasive’ (as we

understand these concepts) which represents the point of

demarcation at which the presence of an alien species

may start to have detectable ecological or economic

consequences. However, Richardson et al. (2000, p. 93)

propose that the term ‘invasive’ should be used without

any inference as to environmental or economic impact.

Definitions of ‘invasive species’ in policy and legal

instruments tend to take a broader approach, linking the

term to the potential ecological impacts of pests. For

example, the Senate ECITAR Committee (2004, pp. 2-4)

defined invasive species as ‘being non-native flora and

fauna that may threaten biodiversity’. Common non-

native flora identified as ‘invasive species’ range from

lantana (Lantana camara) to blackberries (Rubusfruticosus) with common non-native fauna pests being

species such as European foxes (Vulpes vulpes) and cane

toads (Bufo marinus). The Environment Protection andBiodiversity Protection Act Amendment (InvasiveSpecies) Bill 2002 (EPBC Amendment Bill), introduced

by the Democrats and the Greens in the Senate, defines a

species as invasive if it is:

(a) 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

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170 AUSTRALASIAN JOURNAL OF ENVIRONMENTAL MANAGEMENT—Volume 13

survival, abundance or evolutionary development of a

native species, ecological community, ecosystem or

agricultural commodity; or

(b) it is a genetically modified species.

Even where a meaning has been established, say in

legislation, determining whether a species meets the

definition can be difficult. The impacts of a particular

species can vary through space and time, so that a species

that appears benign could become invasive in a different

landscape, under different environmental conditions, or

even decades into the future. A particular plant species

may be invasive while a certain ecological niche is

available, but more benign at a later stage when native

plants may successfully compete; it may be weedy in one

area but not a different area; or it may be invasive in one

habitat but not in another similar habitat due to different

disturbance histories (Csurhes and Edwards 1998). The

var iabi l i ty in ‘ invas iveness’ a lso can be due to

unpredictable future events, including interactions with

other introduced species and changed land management

practices (Paynter et al. 2003).

Some ecologists argue that accurately predicting

invasiveness is so difficult that ‘it seems economically

and environmentally prudent to avoid introducing any

new plant material, even if this means excluding

beneficial species, until our predictive ability improves’

(Paynter et al. 2003, p. 86). This option is rendered

impossible by the unavoidably imperfect quarantine

implementation, not to mention international trade law

obligations (Arcioni 2003). Thus, there are many forces,

such as economic factors, driving plant introductions

which may place pressure upon any ‘stand-alone’

scientific prediction of invasiveness. Moreover, it is

important to recognise that just because a species may be

invasive in one circumstance and not another does not

undermine the concept of ‘invasiveness’. ‘Invasiveness’

is not simply a characteristic of a species; rather an

invas ion occurs when a spec ies wi th par t icu la r

characteristics encounters particular environmental

circumstances.

Apart from terminological and scientific problems,

defining ‘invasiveness’ also traverses politically sensitive

territory where there is a conflict between biodiversity

and economic or agricultural goals. This may occur in the

case of an economically useful invasive species, such as

the European Honeybee (Williams et al. 2001) or in

economic activities that encourage invasive species. For

example, the South Australian olive industry has led to

severe feral olive infestations in conservation areas. Also,

some productive, perennial pasture grasses actively

introduced by graziers are potentially invasive; for

example, buffel grass in the north of Australia is thought

to be doing great environmental damage via alteration of

fire regimes (Howard 2000); and goat meat and fox pelt

export industries depend on feral populations (see, for

example, WMS SA 2004).

The extent of such conflicts has necessitated a specific

l e g i s l a t i v e r e s p o n s e i n s o m e c a s e s . T h u s , t h e

Commonwealth Biological Control Act 1984 provides for

resolving conflicts over nomination of weeds and release

of biological control agents (COA 1999).

Political difficulties also arise where native, iconic

species become ‘invasive’, as in the case of certain native

plants that occur outside their natural range, or ‘pest’

populations of kangaroos and koalas. Notably, native

species were not included in the definition of ‘invasive’

species in the Environment Protection and BiodiversityProtection Act Amendment (Invasive Species) Bill 2002 s.

266AB(1) (hereafter EPBC Amendment Bill). On the

other hand, many submissions to the Senate Inquiry

suggested their inclusion;, for example, see Brisbane City

Council [submission 54], Invasive Species Council

[submission 56], and Dr Trudi Ryan [submission 26].

The traditional designation of ‘invasiveness’, focused at a

species level, also may be ineffective in new scenarios.

Developments in genetic engineering and biotechnology,

for instance, mean that the term ‘invasive’ may need to

comprehend organism at a subspecies level (something

potentially encompassed by the definition of invasive

species in the EPBC Amendment Bill, s. 266AB(1). In

addition, invasive species problems can be seen as the

symptom as well as the cause of other environmental

problems, inviting land managers to confront potentially

uncomfortable, large land (mis)management issues. For

example, weed invasion is encouraged by vegetation

removal through mining, urban development and

agriculture, grazing, altered fire patterns, hydrological

changes, bushland recreation and tourism (COA 1999).

The wide range of organisms potentially included within

the designation ‘invasive’, and the scientific and political

difficulties associated with the term, are exacerbated by

the large areal extent of many species, and their capacity

to move across artificial, human-imposed boundaries,

such as catchment management zones and political

boundaries. For example, rabbits and foxes are found in

most parts of mainland Australia south of the Tropic of

Capricorn (COA 2004). Large-scale human impacts, such

as anthropogenic climate change, also affect the spread of

native species to areas outside their ‘natural’ range,

ostensibly without human interference (Low 2002). This

complexity requires an integrated, harmonised approach

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to invasive species management that is rarely seen in the

existing institutional and legislative arrangements for

invasive species in Australia.

Invasive species control: The Commonwealth’s role

Currently, there is no single national approach to invasive

species control within Australia. There is no Australian

Federal legislation dealing with invasive species per se,albeit general environmental impact and biodiversity

protection regimes are relevant to various aspects of

invasive species regulation. Principal control of invasive

pests and diseases outside the quarantine regime thus

falls primarily within the scope of state and territory

government authorities (Senate ECITAR Committee

2004). Local councils in some states also play an

important role in weed management (MAV 2003)

through local laws regarding the control and removal of

weeds in their municipality.

The diffuse nature of the legislative and management

framework governing invasive species is a result of the

ad hoc development over many years of institutional

arrangements to address pests and ‘problem’ species as

their invasive nature became apparent. These institutional

legacies are compounded by the variability in identifying

invasive species among the diverse agencies that have

responsibility for their control. Hence, the framework for

addressing invasive species control in Australia consists

of a myriad of policies, laws and regulations that operate

across various jurisdictions (see Appendix 1).

There is a clear recognition of the need to develop a more

co-ordinated policy and legal framework that can address

the far-reaching effects of invasive species and overcome

the present disparate approaches to control. The move

toward integrated, more comprehensive regulatory

responses is similar to trends in other areas affecting land

and water degradation, such as salinity control, and

reflects a growing perception of the pervasive character

of these problems. Indeed, the Senate Inquiry readily

acknowledged the complexity and extent of invasive

species control, noting,

Exotic pest management is a shared responsibility of

government industry and community and each plays a part

and bears the cos t of response to the threa t and

consequences of it (Senate ECITAR Committee 2004, p.

61).

Nonetheless , the federal s t ructure of Austral ian

government creates a particular challenge for developing

an integrated invasive species r isk management

framework as the different levels of government, from

the Commonwealth to local government, have different

powers and responsibilities for land and environmental

management. The Commonwealth Government, by virtue

of specific constitutional powers (section 51 of the

Australian Constitution), has the capacity to legislate in

particular areas, such as quarantine, but there is no

identified head of Commonwealth legislative power to

deal with invasive species per se.

D e s p i t e t h e C o m m o n w e a l t h ’ s l a c k o f a d i r e c t

environmental legislative power, it is able to draw on a

range of ‘indirect powers’ to undertake environmental

regulation.1 This has been done, for example, under the

EPBC Act, which establishes six ‘matters of national

s ignif icance’ that t r igger environmental impact

assessment provisions. The EPBC Act also provides for

listing of endangered species, and processes which

threaten them, but does not specifically apply to the

p r o b l e m o f i n v a s i v e s p e c i e s . A s a r e s u l t , t h e

Commonwealth Department of Environment and

Heritage, responsible for administering the EPBC Act,

may only indirectly regulate invasive species which pose

a primarily environmental threat affecting sensitive

environmental matters at a national level.

The Commonwealth’s reluctance to regulate invasive

species more directly reflects the perceived need for a

nationally co-operative approach since the bulk of

invasive species regulation falls within the established

jurisdiction of the state and territory governments. In

turn, this situation arose because invasive species control

has traditionally been integrally associated with land

management and pr imary indus t r i es , which a re

acknowledged areas of state government legislative

jurisdiction. In response, the Commonwealth’s strategy to

date with respect to invasive species management, is best

described as one of ‘indirect governance’, focused on

policy co-ordination and funding, rather than direct

regulation of the problem.

The primarily policy orientation of the Commonwealth

Government in invasive species control is evidenced by

the fact that most federal level institutions dealing with

invasive species are ministerial councils and their

commit tees , which produce s t ra tegies for o ther

stakeholders to implement. The Natural Resources

Management Min i s t e r i a l Counc i l (NRMMC) i s

responsible for consultation, coordination and integrated

government action on natural resource management

1. Commonwealth v Tasmania (1983) 158 CLR 1 (‘Tasmanian Dams Case’). The case took a broad approach to the scope of the federal powers available to regulate

the environment, including the external affairs power. See Lindell (1999).

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172 AUSTRALASIAN JOURNAL OF ENVIRONMENTAL MANAGEMENT—Volume 13

(NRM). Several committees in the NRMMC committee

structure have either formulated national strategies on

invasive species or are in the process of doing so. The

National Weeds Committee and its predecessors have

developed The National Weeds Strategy (NWS, COA

1999) and a Weeds of National Significance (WONS) list

(DEH 2004b). National strategies on vertebrate pests and

marine pests are currently being prepared by the lower

profile Vertebrate Pests Committee and National

I n t r o d u c e d M a r i n e P e s t s C o o r d i n a t i o n G r o u p ,

respectively (Senate ECITAR Committee 2004). Notable

absences from this federal committee and strategy

structure are invasive invertebrates and exotic fish

species, a situation which is under review (Senate

ECITAR Committee 2004).

Another important aspect of the Commonwealth’s

‘indirect governance’ approach to invasive species

control is its contribution to funding of on-ground

projects to combat invasive species. This occurs largely

through the Natural Heritage Trust (NHT) established

under the Commonwealth Natural Heritage Trust ofAustralia Act 1997. One of the ten NHT focus areas is

‘preventing or controlling the introduction and spread of

feral animals, aquatic pests, weeds and other biological

threats to biodiversity’ (Senate ECITAR Committee

2004, p. 3.70).

However, under new funding structures for the second

phase of NHT funding (NHT2), most funds are directed

towards priority projects that are defined at the regional

level. Thus, there is no guarantee that resources will be

directed evenly (or at all) at even nationally significant

invasive species due to local variations in defining

‘invasiveness’ and the perceived seriousness of more

localised problems, often at catchment level (Senate

ECITAR Committee 2004).

This situation is problematic, given that NRM bodies

may not have expertise in invasive species, or may fail to

appreciate the significance of small-scale infestations

(including ‘sleeper’ weeds) which could nonetheless

spread and compromise invasive species management in

neighbouring catchments (Senate ECITAR Committee

2004). Moreover, current funding levels have not

remedied pas t shor t fa l l s , and are termed by the

independent Invasive Species Council (2004, pp. 10-11)

as ‘grossly inadequate relative to current and projected

costs’.

Whilst this supports an even distribution of weed

management resources, some prominent commentators

have argued that weed management resources are more

effectively spent when directed at dealing with incipient

problems rather than extensive ones. ‘Sleeper’ weeds fall

into this category – a term coined by Groves (1999, p.

633) to refer to ‘invasive plants that have naturalised in a

region but not yet increased their population size

exponentially’. According to Grice and Ainsworth (2003,

p. 35), ‘[t]his definition can be taken to include a large

number of species that have not yet become serious

weeds even though they have become naturalised.

Importantly, the term has come to be most commonly,

and somewhat loosely, applied to species that remain

relatively scarce and/or scattered for a considerable

period after they have become naturalised.’ Dealing with

invasive species problems of this kind would require a

preventative approach, whereby resources are directed

towards the high risk infestations which contribute more

than others to invasion processes.

State and Territory Structures for Invasive SpeciesManagement

In contrast to the Commonwealth’s role, which is largely

restricted to policy coordination and funding, the

Australian states and territories are responsible for the

institutional and regulatory backbone of action against

invasive species. In addition to targeted legislation,

invasive species management is also affected by

numerous other laws dealing with seeds, biological

control methods, funding arrangements for the control of

agricultural pests, codes of practice for animal protection,

and controls on clearing native vegetation that allow

some exemptions for management of pest species (see

Appendix 1). The following section presents an overview

of the principal pieces of state and territory legislation for

invasive species, followed by a general discussion of

structural shortcomings as judged against contemporary

principles of environmental law.

By comparison with the EPBC Act, few state and

territory regimes for invasive species control exhibit a

strong integration of environmental principles. This gap

is particularly noticeable in relation to environmental

principles that adopt a precautionary or adaptive

management perspective. As the following analysis of

trends in invasive species control at a state and territory

leve l ind ica tes , there i s scope for a fa r g rea te r

incorporation of a preventative risk management

orientation.

Through the 150-odd years of regulation for invasive

species in Australia, common law and legislative

perceptions of the problem have changed dramatically

(see Appendix 1). This has influenced regulatory

structures, as approaches to invasive species have

evolved from species-specific laws, to those that deal

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with groups of species, to a recent approach that sees

invasive species as part of larger land management

problems. This progression has also created a greater

balance between agricultural and environmental goals,

although structural imbalances between the two areas

persist today which give greater weight to the agricultural

sector in many political and economic decisions.

However, these developments have occurred separately

across jurisdictions, leading to widely varying legal and

institutional frameworks for invasive species across

Australia.

Early trends in invasive species law

Early laws on invasive species took a plainly reactive

approach, in the form of legislation and regulations

enacted to deal with individual species as the need arose.

‘Need’ was generally only perceived in an agricultural

context , when an invasive species threatened to

undermine the short-term viability of agricultural

pursuits, leading to Acts such as the Victorian PricklyPear Destruction Act 1886 and the Victorian Rabbit Act1880. This approach remains to an extent, particularly in

Queensland and New South Wales, with respect to

individual invasive species (such as particular plant

diseases)2 or agricultural industries (e.g. the banana and

apiary industries).3

More modern legislative approaches to invasive species

have treated weeds, fish and diseases as separate

categories, with different pieces of legislation to govern

them. Even in this respect, however, there is not a

consistent approach. Weeds are regulated separately in

four jurisdictions4, as are invasive exotic fish, which are

regulated separate ly under Fisher ies Acts in a l l

jurisdictions (e.g. Inland Fisheries Act 1995 (Tas);

Fisheries Act 1982 (SA)). Animal and plant diseases also

often receive separate treatment under specific Acts.5 By

contrast, pest animals generally are not regulated as a

stand-alone category of invasive species (for an

exception, see Non-Indigenous Animals Act 1987 (NSW)

and Non-Indigenous Animals Regulation 1997 (NSW),

which set out restrictions on keeping, moving and

releasing non-indigenous animals due to their potential to

become pests). Alternatively, some jurisdictions treat pest

plants and animals under the same legislation.6 This often

occurs in the context of ‘rural lands protection’ legislation

aimed at safe-guarding agricultural production.

The general approach of weed and pest animal legislation

(with a similar approach for disease legislation) is to set

out categories of declared pest plants and animals of

different levels of seriousness. In NSW, for example,

weeds are given different classifications depending on

several factors, including severity of threat, weed area,

and density and feasibility of control (Arcioni 2003). The

different categories vary, with Tasmania having only two

ca tegor ies o f dec la red p lan t s (Tasmanian WeedManagement Act 1999, ss. 9, 10), whereas Victoria has

four (Victorian Catchment and Land Protection Act 1994,s. 60-63).

The most important consequence of declaring an invasive

pest animal or plant species is the resulting universal

obligation of land occupiers to control them (e.g. NSW

Noxious Weeds Act 1993, s. 12; Victorian Catchment andLand Protection Act 1994, s. 70(1)). The nature of the

obligation may depend on the degree of seriousness of the

invasive species problem (e.g. Arcioni 2003). Similar

obligations are also found in numerous property laws

relating to holders of pastoral leases (e.g. NT PastoralLand Act 1992, s. 73), lessees in irrigation areas (e.g. SA

Irrigation (Land Tenure) Act 1930, sch. 2, 3.), lessors of

other types of property (e.g. NT Law of Property Act2000, s. 119; Qld Property Law Act 1974, s. 109) and

mortgagors (e.g.Tasmanian Conveyancing and Law ofProperty Act 1884, sch. 5), as well as landowners in

general (e.g. SA Soil Conservation and Land Care Act1989, ss. 3, 8). However, penalties for failing to control

pest and animal plants are generally considered to be

inadequate (Senate ECITAR Committee 2004).

The above discussion should not be taken to imply that

there is no scope for species-specific pest management.

While legislation should generally transcend species,

t he r e i s some t imes a need fo r spec i e s - spec i f i c

2. For example, Plant Protection (Red-banded Mango Caterpillar) Quarantine Notice 2001 (Qld); Plant Protection (White Blister of Brassica) Notice 2002 (Qld).

3. For example, Apiaries Act 1985 (NSW); Banana Industry Act 1987 (NSW); Apiaries Act 1982 (Qld); Banana Industry Protection Act 1989 (Qld). See also

Beekeepers Act 1963 (WA) and Beekeepers Regulations 1963 (WA).

4. The relevant primary legislation is: Noxious Weeds Act 1993 (NSW); Weed Management Act 1999 (Tas); Weed Management Act 2001 (NT); and the PlantProtection Act 1989 (Qld).

5. E.g. Animal Diseases Act 1993 (ACT) and Plant Diseases Act 2002 (ACT); Livestock Disease Control Act 1994 (Vic); and the Plant Health and Plant Products Act1995 (Vic).

6. E.g. Land Protection (Pest and Stock Route Management) Act 2002 and Land Protection (Pest and Stock Route Management) Regulation 2003 (Qld); Animal andPlant Control (Agricultural Protection and Other Purposes) Act 1986 and Animal and Plant Control (Agricultural Protection and Other Purposes) Regulations 2002(SA); Agriculture and Related Resources Protection Act 1976 and Agriculture and Related Resources (Searches for Declared Plants and Animals) Regulations 2003(WA); Land (Planning and Environment) Act 1991 (ACT); and the Rural Lands Protection Act 1998 (NSW).

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174 AUSTRALASIAN JOURNAL OF ENVIRONMENTAL MANAGEMENT—Volume 13

components. The best example is biological control,

which is by definition a host-specific technique which

explicitly aims to minimise the risk to non-target species

(Taylor et al. 2004). Therefore, the technique and the

legislation governing it must be applied in a species-

specific way.

From agricultural pests to environmental risk: Changingscope of invasive species laws

While, in the categories of weeds, pest animals, fish and

diseases, invasive species legislation focuses on threats to

agricultural production, the rise of environmental

concerns in law during the 1970s prompted further

legislation aimed at protecting biodiversity from invasive

species. However, the strength of this type of regulation

varies widely. Whereas some legislation prohibits

bringing a declared pest species into wilderness and

conservation areas, and restricts sales of the species,7

other legislation involves only vague conservation area

‘management goals’ relating to invasive species (e.g. SA

National Parks and Wildlife Act 1972, s. 37; ACT NatureConservation Act 1980). More complex structures allow

for the declaration of ‘threatening processes’ and

corresponding action plans (e.g. Victorian Flora andFauna Guarantee Act 1998), similar to the structure of

the EPBC Act.

A more recent conceptual shift has seen regulatory

overhaul of an approach to invasive species based on

narrow categories, towards a more holistic approach that

sees invasive species in the context of land management

practices. Victoria’s Catchment and Land Protection Act1994 and Sou th Aus t r a l i a ’ s Natura l ResourcesManagement Act 2004 establish such frameworks. These

Acts embrace both environmental protection - including

biodiversity (Garbutt 2003) - and agricultural production

goals in relation to invasive species.8 They mark a radical

diversion from past reactive, species-specific approaches

by setting up natural resource management planning

structures which theoretically place invasive species in

the context of other, related catchment problems, such as

soil conservation, water quality and land clearing.

However, inclusion of invasive species controls in larger

land management issues may be constrained by the

deliberate exclusion of some species types from these

more holistic frameworks.9

Even in jurisdictions that have not adopted a ‘holistic’

approach, recent legislation demonstrates that invasive

species increasingly are perceived as a serious problem.

Such changes either increase penalties for harbouring

invasive species10 or introduce new categories of ‘serious

pests’ (Queensland Plant Protection Amendment Act2004, ss. 6O, 6P). However, in some cases, these changes

constitute a reactive approach to serious, recently

identified pest problems, such as the discovery of citrus

c a n k e r ( X a n t h o m o n a s a x o n o p o d i s p v . c i t r i ) i n

Queensland, a potent ia l ly disas t rous disease for

Queensland’s large citrus, nursery and landscape

industries (Explanatory Memorandum, Queensland PlantProtection Amendment Bill 2004, ss.1-4).

Despite these largely positive developments in invasive

species laws, the area suffers from a truly amazing burden

of unco-ordinated laws that fail to cover all the areas

required for an effective regulatory structure – a case of

too much, but not enough. State-level legislation has

reached tremendous proportions – New South Wales and

Western Australia are typical cases, with at least 26 and

23 laws each concerning invasive species. Despite

introducing more integrated approaches, category-specific

laws remain in Victoria and South Australia and these

jurisdictions still struggle with at least 16 and 17 relevant

laws each. Adding to this mass of state-level invasive

species laws, are equally abundant state-level policies and

official strategies (see Appendix 1).

Disparate and inconsistent state and territory approaches torisk management

State-level laws were developed with little co-ordination,

leading to varying approaches among the different types

of laws. First, as described above, some jurisdictions have

taken a holistic approach, whereas others labour under

numerous laws specific to invasive species categories.

Second, although in most cases, government agencies are

largely responsible for managing invasive species, in the

case of New South Wales, Queensland and South

Australia, this responsibility falls to local councils (Senate

ECITAR Committee 2004). Third, there are the many

differences in categories of invasive species for which

different states have chosen to legislate, the myriad

different specific provisions applied to each category, the

choice of invasive species declared, and the diverse

penalties applied for contraventions.

7. See, for example, Qld Nature Conservation Regulation 1994, ss. 415, 416; NT Territory Parks and Wildlife Conservation Act 1976, s. 52; SA Wilderness ProtectionRegulations 1992, r. 21.

8. E.g. a purpose of the SA Natural Resources Management Act 2004, s. 7, is to provide for ‘the prevention and control of impacts caused by pest species of animals

and plants that may have an adverse effect on the environment, primary production or the community’.

9. E.g. the Catchment and Land Protection Act 1994 (Vic) allows the declaration of only weeds and pest animals – fish and invertebrates may not be declared: s. 59(2).

10. E.g. Catchment and Land Protection (Amendment) Act 2003 (Vic) ss. 5, 8, 11, 12; Plant Protection Amendment Act 2004.

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While some structural differences may not appear

important, they can have significant ramifications in

practice. The fact that Tasmania has only two categories

of pest plants means that there are fewer control

possibilities, which discourages the declaration of weeds

by relevant authorities due to the higher necessary outlay

of resources (Leverenz 2004). However, whilst Victoria

does have four categories of declared noxious weed, to

date, only three of the four categories have been used, as

no species have been placed in the lowest level category

of ‘restricted’ since the inception of the Victorian

Catchment and Land Protection Act 1994 (this will

probably change as a result of the current review of the

noxious weeds list).

Moreover, it is important to note the significant role

played by local councils in Victoria in weed management

given that, ‘[a]lmost half of all councils recognise weeds

as a high priority issue and major activity for their

council … 20 per cent of councils have in place a

designated weed strategy and 22 per cent have a local law

that makes provisions for the control of weeds’ (MAV

2003, p. 1). This reflects the fact that Victorian local

councils have ‘broad powers in relation to environmental

management and more specifically in weed management’

(MAV 2003, p. 2) as they can create local laws regarding

the control of weeds in their municipality under the

Victorian Local Government Act 1989, and can also

exercise some degree of control over weed removal on a

specific site or in a revegetation schedule under the

Victorian Planning and Environment Act 1987.

Despite the volume of state-level laws covering invasive

species, significant gaps remain and undermine attempts

at invasive species control. There is clearly room for

consolidation and harmonisation of these laws, both in

form and application – an observation that the Senate

Committee found ‘self-evident’ (Senate ECITAR

Committee 2004, p. 2.81).

Discrepancies between states regarding invasive species

declarations (as in the case of the 20 WONS) or the legal

sale of noxious weeds (still possible in the ACT and

Western Australia) potentially undermine other states’

controls (Leverenz 2004). This is particularly true of

weeds spread through the retail nursery and market trades

as only voluntary, industry-based measures apply to the

sale of potentially invasive, non-declared weeds in

nurseries (Senate ECITAR Committee 2004). While

voluntary codes are not uncommon in environmental

management regimes, given the scope of the invasive

weeds problem, a more direct regulatory control

mechanism would seem appropriate.

The reliance upon voluntary measures in the horticultural

and nursery industries suggests that the focus remains

upon eradication of established pests while more

proactive risk management strategies are not given the

same support. Again, the primarily reactive character of

regulatory approaches is apparent in that it is rare to find

the precautionary principle listed among the objects of

legislation that deal with invasive species (Senate

ECITAR Committee 2004). The ‘polluter pays principle’,

another well-established environmental law principle, is

altogether absent, although it could be used to guide more

appropriate penalties to be imposed on landholders or

primary industry personnel who breach invasive species

laws (Senate ECITAR Committee 2004, pp. 5.57-5.58).

Current invasive species laws also overlook the

preventative value of labelling regimes applied to trade in

potentially invasive species; another common feature of

contemporary environmental regulatory structures (such

as labelling of energy efficient appliances and products

containing genetically modified ingredients). This

reflects the significant ‘lack ‘of proactive, early

intervention measures in current state-level invasive

species laws (Senate ECITAR Committee 2004, p. 2.43).

Australia’s state-level regulatory frameworks for invasive

species have come a long way since ‘Prickly Pear Acts’

were the norm. There are encouraging signs that an

holistic approach to invasive species management is

being accepted, as the problem is increasingly regarded

in the context of larger land management issues.

However, substantial inconsistencies and deficiencies in

the structure and application of invasive species laws

remain across jurisdictions, stymieing an effective

integrated and proactive national approach.

Environment Protection and BiodiversityConservation Amendment (Invasive Species)Bill 2002

In recognition of the inconsistencies and inadequacies of

current regulatory frameworks for invasive species, the

EPBC Amendment Bill was introduced to Federal

Parliament on 19 November, 2002. The Bill proposed a

federal scheme for invasive species that would cover both

import and domestic management. It sought to make

more direct the current federal approach to invasive

species under the EPBC Act, which currently occurs

through the listing of key threatening processes and with

the potential to enact invasive species regulations under

s. 301A.

According to Democrat Senator Bartlett, who introduced

the Bil l , the legis la t ion is needed to establ ish a

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176 AUSTRALASIAN JOURNAL OF ENVIRONMENTAL MANAGEMENT—Volume 13

‘consistent and coordinated approach [to invasive

species], which can only occur through a national

structure’ (Bartlett 2002, p. 6741). Senator Bartlett

explicitly acknowledged the difficulty of defining

invasive species, saying that ‘questions of what is natural

and what is invasive are legitimate and extremely

difficult questions to resolve’ (Bartlett 2002, p. 6741).

The definition of ‘invasive species’ under the Bill brings

both agricultural sustainability and biodiversity firmly

into its focus, although not as comprehensively as is

argued for by some ecologists. As noted above, an

‘invasive species’ under the Bill is one which is (EPBC

Amendment Bill, s. 266AB (1)):

(a) 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.

That is, all genetically modified species are assumed

prima facie to be invasive, and all native species are

assumed irrefutably to be non-invasive for the purposes

of the Bill. Any person may nominate a non-indigenous

species as an invasive species (EPBC Amendment Bill, s.

266AF (1)). However, the above legal definit ion

inevitably begs the question of what constitutes an

‘indigenous’ species — is it the case that this is only to

be defined at the national scale, or ought it to be defined

at a state or regional scale, given that many native species

are considered to be ‘invasive’ within Australia when

they venture outside their native ranges, for example,

eastern Australian species in Western Australia.

The Bill provides for several categories of listed invasive

species: those which are permitted for import; those

which are prohibited for import; and those which are

currently present in Australia. To be permitted for import,

an exotic species must not be on the ‘prohibited import’

list, must represent a low risk of threatening ‘the survival,

abundance or evolutionary development of a native

species, ecological community, ecosystem or agricultural

commodity’, and must be subject to adequate risk

management plans to prevent such a threat (EPBC

Amendment Bill, s. 266AC (1)). Apparently responding

to calls for the immediate cessation of exotic species

imports, all pasture grasses, ornamental plants and

aquarium fish (the most common kinds of invasive

species) can be held to be species prohibited for import

(EPBC Amendment Bill, s. 266AC (2)). The Minister

may also declare additional species to be prohibited.

However, pasture grasses, ornamental plants and

aquarium fish can be imported provided that certain

conditions (e.g. Weed Risk Assessment protocols are

followed).

Invasive species which are currently present in Australia

are further grouped based on how entrenched they are in

the Australian environment and the feasibility of

eradicating them. These groups are (EPBC Amendment

Bill, s. 266AC (2)):

(i) eradicable

(ii) substantially containable

(iii) beyond eradication

(iv) controlled

(v) disregarded as an invasive species

(vi) exempt from listing.

This grouping is to be decided by the Minister with

advice from the Bill’s proposed Invasive Species

Advisory Committee (ISAC). Given the definition of the

term ‘eradicable’ provided earlier, the proposed groups of

invasive species listed in the EPBC Amendment Bill pose

many questions:

■ first, whether group (ii) organisms are actually

‘eradicable’ or not and what ‘substantially’ means with

reference to containment

■ second, whether the apparently non-mutually exclusive

groups are intended to be mutually exclusive.

The interpretation of group (v) is also unclear since to say

that a species is ‘disregarded as an invasive species

because it is not invasive’ can only be described as

tautological. In the case of the last group (which consists

of established commercial agricultural commodities and

domesticated animals), the decision by the Minister may

also require a risk assessment (EPBC Amendment Bill, s.

266AC (4)(f)(i i)) , the precise nature of which is

unspecified (although, in the case of import permit

applicat ions, the information required for a r isk

assessment is provided in s 266BD(3)). Interestingly, the

Bill does not include invasive species as a ‘matter of

environmental significance’, avoiding the trigger for

environmental impact assessment under the EPBC Act.

Threat Abatement Plans apply to several categories of

listed invasive species for which eradication or control is

feasible. They set out ‘practical measures’ to achieve

specified outcomes within specified timeframes (EPBC

Amendment Bill, s. 266CE). Like Threat AbatementPlans for ‘key threatening processes’, plans for invasive

species are expressed to bind only the Commonwealth

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(EPBC Amendment Bill, s. 266CB) and are subject to

requirements relating to consultation with the states

(EPBC Amendment Bill, ss. 266CD (4), (6), (7)).

Unlike the ‘threatening process’ threat abatement plans,

however, the proposed invasive species threat abatement

plans are obligatory for ‘eradicable’ and ‘substantially

containable’ invasive species (EPBC Amendment Bill, s.

266CD(2)); they are a precondition of listing a species as

‘ c o n t r o l l e d ’ a n d ‘ e x e m p t f r o m l i s t i n g ’ ( E P B C

Amendment Bill, ss. 266AC(4)(d), 266AC(4)(f)(iii)); and

they may apply more widely, that is, to any invasive

species currently present in Australia (EPBC Amendment

Bill, s. 266CD(5)). A permit system would allow the

importation and possession of listed invasive species on

the basis of given criteria (EPBC Amendment Bill, s.

266BE(3)) and, in some cases, field trials may be

required to prove the species’ behaviour (EPBC

Amendment Bill, s. 266BE(4)).

In addition to provisions for listing invasive species, the

Bill also recommended the Invasive Species Advisory

Committee [ISAC] as the key administrative body for

invasive species. The ISAC consists of members chosen

by the Minister, who represent the interests of AQIS;

conservation organisations; science; the rural, business,

and indigenous communities; and animal welfare (EPBC

Amendment Bill, s. 503A).

Following the introduction of the EPBC Amendment Bill,

a Senate Committee inquiry was established. The

Committee’s terms of reference required it to assess the

potential contribution of the proposed amendments to the

EPBC Act made by the invasive species Bill (Senate

ECITAR Committee 2004). The Committee found that,

‘[w]hile 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 (Senate ECITAR Committee 2004, p. 7.48).’

Instead, the Committee treated the Bill as largely

symbolic; as an incentive to improve performance by

‘nervous state and territory governments’ (Senate

ECITAR Committee 2004, p. 7.49).

The main drawback to the Bill that the Committee

identified was the duplication of existing regulation. This

ref lec ted the Senate Commit tee’s v iew tha t the

acknowledged deficiencies in current invasive species

control are largely related to a lack of sufficient ‘political

will’ to address the problem, rather than the inherent

failures of the existing institutional and legislative

structures (Senate ECITAR Committee 2004, p. 7.59).

Indeed, the Committee’s concern with the problems of

legislative duplication is consistent with the general

strategy of the Commonwealth Government under the

EPBC Act, which has been to reduce perceived overlap

of state and Commonwealth environmental regulation.

Assessing the prospects for reform

Admitting that they were previously unaware of the

nature and urgency of the invasive species problem, and

hailing their Committee experience as an ‘epiphany’, the

Senate ECITAR Committee members put forward wide-

ranging recommendations to address the problem. The

recommendations urge the Commonwealth to take a

leading role in ‘seeking better recognition of the

environmental consequences of invasive species,

particularly in relation to current trade rules’ (Senate

E C I T A R C o m m i t t e e 2 0 0 4 , p . 8 . 5 1 ) . T h e

recommendations encompass legislative change in

selected instances, research and education, with an

overriding emphasis on the importance of a ‘co-

ordinated, cohesive approach across all levels of

government, industry and the general community’

(Senate ECITAR Committee 2004, p. 8.5). Accordingly,

many of their recommendations are directed towards

achieving greater consistency in regulatory approaches

to pest plants, vertebrates and marine species.

A n o t h e r m a j o r f o c u s o f t h e C o m m i t t e e ’ s

recommendations is achieving greater prominence for

environmental and biodiversity concerns within the

current regulatory framework, given that they currently

receive ‘very little’ government effort (Senate ECITAR

Committee 2004, p. 8.81). To this end, the Committee

addresses environmental ‘sleeper’ weeds and emergency

response procedures; threatening processes under the

EPBC Act; the impacts of the international trading

regime; and education measures within an environmental

framework.

The Committee justifies its emphasis on coordination

within the exis t ing ins t i tu t ional and regulatory

framework by citing the numerous inconsistencies in

invasive species regulation across jurisdictions, and the

Commonwealth’s responsibility to conserve Australia’s

biodiversity for the benefit of future generations (Senate

ECITAR Committee 2004, pp. 8.6-8.7).

It recommends that the Commonwealth develop a

‘na t i ona l f r amework ’ f o r i nvas ive spec i e s , i n

consultation with state, territory and local governments

(Senate ECITAR Committee 2004, p. 8.12), in an effort

to overcome cross-jurisdictional inconsistencies by

creating three new standard categories for invasive

species of national importance. These would be: the

National Quarantine List (species that constitute a high

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178 AUSTRALASIAN JOURNAL OF ENVIRONMENTAL MANAGEMENT—Volume 13

invasion risk and whose early detection would enable

cost-effective eradication); the National Alert List

(species that are naturalised within a restricted range and

could feasibly and cost-effectively be eradicated,

including sleeper weeds); and the National Control List

(species that are naturalised and widespread, the control

of which would assist nationally environmentally

significant areas) which would include a review of

WONS (Senate ECITAR Committee 2004, pp. 8.14,

8.20). In addition, funding would be provided for a

‘scientifically credible and robust national list of invasive

plant species’ (Senate ECITAR Committee 2004, p.

8.21).

Another arm of the proposed national framework is a

twin Commonwealth-state approach to address inter-

jurisdictional inconsistencies in the regulation of trade in

invasive species. It would include new Commonwealth

regulations under s. 301A of the EPBC Act to prohibit

trade in invasive species of national importance,

complemented by state action to prohibit uniformly the

sale of these species and those on the WONS list (Senate

ECITAR Committee 2004, p. 8.22).

The Committee also suggests expanding the legislated list

of taxa, the sale of which would be prohibited on a state

or regional basis (Senate ECITAR Committee 2004, p.

8.23). Should imported plants become weeds, the

resulting costs of eradication should be borne by those

responsible for their import and sale – extending the

‘polluter-pays principle’ to invasive species (Senate

ECITAR Committee 2004, pp. 8.24-8.25).

However, this naturally begs the question of whether the

Committee is referring to legally imported as well as

illegally imported species. This question is particularly

pertinent in light of the existence of a substantial

quarant ine law loophole whereby whole generacontaining some of the most serious weeds are permitted

in a list that was intended to be species-based (Glanznig

2005). If one answers the question in the affirmative,

then it becomes open for the polluter to argue that the

fault lies with the quarantine authorities or legislators for

placing the species on the permitted import list.

The Committee considers that these lists and potential

liability for eradication costs constitute sufficient indirect

regulation of the nursery industry (Senate ECITAR

Committee 2004, p. 8.26). It would, however, encourage

both governments and the industry to consider mandatory

or voluntary label l ing regimes for invasive and

potentially invasive garden species (Senate ECITAR

Committee 2004, pp. 8.77-8.78). It also suggests that

warnings accompany segments on televised gardening

programmes that recommend potentially invasive plants

(Senate ECITAR Committee 2004, p. 8.80).

The Committee’s recommendations for vertebrate and

marine pests do not advocate Commonwealth action to

the same extent as for weeds. Falling short of suggesting

Commonwealth regulation (which s. 301A of the EPBC

Act cou ld presumably inc lude) , the Commit tee

nonetheless suggests that a National Strategy for

Vertebrate Pests be concluded ‘as a matter of urgency’ to

provide the groundwork for a more consistent framework

at state-level (Senate ECITAR Committee 2004, pp.

8.31-8.32). Adopting a similar approach for marine pests,

the Committee recommends the development of a

national system for marine invasive species (perhaps

through a National Strategy). It also suggests specific

programs directed at hull fouling and mariculture –

currently neglected areas – and long-term funding to

investigate marine invasive species present in the ports of

our trading partners (Senate ECITAR Committee 2004,

pp. 8.33-8.39).

While the standardised lists of species, improved trade

restrictions and national strategies would presumably

address pests that threaten both agr icul ture and

biodiversity, the Committee notes that the latter require

special emphasis from both an import and management

perspective. The Committee recommends changes to the

permitted import list to standardise species names and

au tomat i ca l ly r emove WONS (Sena te ECITAR

Committee 2004, p. 8.44). It also suggests changes to

impor t r i sk ana lys i s p rocedures to ensure the i r

independence, as proponents are currently responsible for

se lec t ing impor t r i sk ana lys ts (Senate ECITAR

Committee 2004, pp. 8.45-8.46). The move to standardise

species names with respect to the permitted import list is

significant because it will ameliorate the serious anomaly

whereby whole genera containing some of the most

serious weeds are permitted in a list that was intended to

be species-based; a truly absurd situation where many

suspected or known weeds, such as bear-skin fescue

(Festuca gautieri), kochia (Bassia scoparia) and Mexican

feather grass (Nassella tenuissima), were effectively

p e r m i t t e d f o r i m p o r t , w h i c h l e d t o d i s a s t r o u s

consequences for the environment (Glanznig 2005).

Indeed, in early 2005, the Federal Government undertook

to resolve the issue by removing all genera from the

p e r m i t t e d s e e d s l i s t a n d r e p l a c i n g i t w i t h a

comprehensive list of permitted species by the end of

2006 (MacDonald 2005).

In addition to reforms addressed to the regulation of trade

in invasive species, the Committee also recommends

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policy, legislative, research and educational measures to

better manage invasive species that threaten biodiversity,

post-import. It observes that current regulation and policy

focus on already established, primarily agricultural

weeds, at the expense of sleeper weeds and weeds with

p r i m a r i l y e n v i r o n m e n t a l o r s o c i a l i m p a c t s .

Environmental sleeper weeds are to be given more

attention by clarifying responsibility for them through

The National Weeds Strategy, and by developing early

warning systems. This more strategic approach would be

based on prioritising native species and habitats at risk,

thereby better protecting indigenous biodiversity (Senate

ECITAR Committee 2004, pp. 8.27-8.30).

Further suggested preventative measures are to: establish

emergency response procedures for environmental pests

to mirror those for agricultural pests (Senate ECITAR

Committee 2004, p. 8.48); and to make key threatening

processes eligible for listing ‘prior to the species reaching

a critical stage’ (Senate ECITAR Committee 2004, p.

8.41). The Committee suggests that these measures be

supported by an increased emphasis on long-term ‘non-

economically motivated research … that will assist in

preserving Australia’s cultural and environmental

heritage’ (Senate ECITAR Committee 2004, p. 8.53).

This would enhance the work of existing Cooperative

Research Centres (CRCs), including the Weeds CRC,

funded in 1990 by the Federal Government to deal interalia with invasive species issues. The CRCs undertake

long-term, collaborative research and develop ventures

involving universities, the public sector and business.

Although the major role of the CRCs is research, they

have in practice had an important effect on policy

development.

The Committee’s recommended education measures also

emphasise the biodiversity aspects of the invasive species

problem. The suggested complex of formal, community

and industry education programs thereby seek to

conceive the invasive species problem ‘within the

framework of the broader environmental perspective’,

rather than via a focus on purely economic impacts

(Senate ECITAR Committee 2004, pp. 8.63, 8.66).

Can an integrated approach to invasive speciescontrol be achieved?

In light of the serious gaps and inconsistencies in the

existing state and territory regimes for invasive species

c o n t r o l , a n e n h a n c e d f o c u s o n A u s t r a l i a - w i d e

coordination through a ‘robust national framework’ is to

be welcomed. Nonetheless, it may be questioned whether

an effective, integrated management approach can be

achieved without a more extensive reform of the existing

institutional structures. In this context, it needs to be

recognised that the environmental risks posed by invasive

species are part of a complex of environmental problems

associa ted with land and water degradat ion and

biodiversity-decline degradation that has occurred over

many years in rural Australia. The extent of that

degradation, and the enhanced scientific understanding of

the need for preventative measures, arguably now

requires a more decisive legislative and institutional

approach that is predicated on sound environmental

principles to support both agricultural sustainability and

biodiversity protection. Given that the effects of

environmental degradation and biodiversity decline are

pervasive across Australia, they have been identified as

requir ing a h igh-pr ior i ty , co-ordinated nat ional

framework, arguably best achieved under Commonwealth

legislative auspices. Such a framework would assist in

the development of a comprehensive and fully-integrated

approach to invasive species control. This is particularly

crucial given the emerging trends with regard to the

effectiveness of quarantine control and the global factors

that heighten the risks associated with invasive species.

In this context, the Commonwealth’s reliance on ‘indirect

governance’ as its main focus for invasive species

regulation is problematic. ‘Indirect governance’ is an

emerging feature of the Commonwealth’s approach

across many fields of environmental protection and land

management , such as sa l ini ty control and water

resources. Pursuant to an ‘indirect governance’ approach,

the Commonwealth Government primarily adopts a

position of seeking to provide funding incentives and

policy co-ordination, but refrains from more expansive

legislative intervention. In this instance, such an

approach to invasive species control largely endorses the

status quo of the existing legislative and institutional

framework, albeit that the Commonwealth has called for

model, uniform state legislation in specific areas.

The Commonwealth Government potentially has broad

legislative competence to regulate a wider range of

environmental issues of national significance beyond the

current matters prescribed under the EPBC Act .

Moreover, the Commonwealth Government, in the EPBC

Act, has a legal instrument that incorporates best practice

environmental management regimes, and is informed by

well accepted environmental principles that promote

long-term sustainability. The reluctance shown in not

widening the scope of the operation of the EPBC Act in

relation to invasive species we believe represents a

missed opportunity to provide a benchmark standard for a

more co-ordinated and comprehensive management of

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180 AUSTRALASIAN JOURNAL OF ENVIRONMENTAL MANAGEMENT—Volume 13

the risks posed by invasive species, particularly in the

field of biodiversity protection.

Acknowledgments

Part of the research for this article was undertaken by Lee

Godden while a research visitor at the Centre for

Business Responsibility and Social Sustainability at

Cardiff University. The support of Professor Bob Lee and

other members of the BRASS Centre is gratefully

acknowledged.

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Appendix 1. State and territory laws and formal strategies.This is a list of key invasive species legislation and formal strategies in Australia. It does not include by-laws and

incidental strategies, due to their large number.

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