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: 21:09Publisher: Taylor & FrancisInforma Ltd Registered in England and Wales Registered Number: 1072954 Registered office: MortimerHouse, 37-41 Mortimer Street, London W1T 3JH, UK
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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
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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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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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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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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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