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Controlling Invasive Species: Managing Risksto Australia's Agricultural Sustainability andBiodiversity ProtectionLee Godden a , Rebecca Nelson a & Jacqueline Peel aa Faculty of Law , The University of Melbourne , Victoria , 3010 E-mail:Published online: 20 Mar 2013.

To cite this article: Lee Godden , Rebecca Nelson & Jacqueline Peel (2006) Controlling Invasive Species: ManagingRisks to Australia's Agricultural Sustainability and Biodiversity Protection, Australasian Journal of EnvironmentalManagement, 13:3, 166-184

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

Lee Godden, Rebecca Nelson and Jacqueline Peel*

Previously, Australia relied primarily upon stringent quarantine controls on imported plant and animal goods to prevent the entry r~f invasive species.

However. the recent introduction of new international rules supervised by the World Trade Organisation, requiring national authorities to demonstrate a 'sound scient!flc basis' for quarantine measures implemented for plant or animal health purposes, may make it d(fficult for Australia to rely as heavily upon quarantine as it has done in the past. It is in this context that this article assesses the existing domestic legal and institutional framework for invasive species control as a factor of growing significance for the management r~f Australia'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 sign(ficant gaps and inconsistencies within each jurisdiction and across jurisdictions. In part, the disparity in regulatory approaches reflects ambiguities in the scientific term 'invasive species·. leading to variability in the meaning of the term· invasive· when used in legislation and policy. Historically, also, the main focus of invasive species regulation has been upon the control of agricultural pests in primary industries, which produced a management framework at state government level predominantly concerned with identifving and managing single pest species in the context r~f agricultural production. By contrast, the Commonwealth Government's role has largely been confined to 'indirect governance' in the form of providing policy coordination and funding incentives. 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 in Australia arguably requires not only greater institutional co-ordination but also a significant change towards a nationally-led proactive regulatory approach.

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

* Lee Godden, Rebecca Nelson and Jacqueline Peel are with the Faculty of Law. The University c~l Melbourne. Victoria 3010; Comact allfhor's email: lcgodden@unimelb.edu.au.

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practice environmental management principles to this end, as well as recent recommendations for an enhanced national strategy emanating from the Senate Inquiry considering 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 coherent national framework, arguably do not go far enough in addressing the growing risks posed by invasive species. In particular, the recommended reforms neglect the opportunity offered by the EPBC Act to define a decisive role for the Commonwealth in invasive species regulation, guided by well-accepted environmental principles that promote long-term sustainability.

Introduction: Invasive species, agricultural sustainability 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 ECIT AR 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). Nonetheless, while Australia'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 (Echium plantagineum) and many others. At the outset, it is noted that the scientific term 'invasive species' has resisted 'unequivocal definition' (Grice 2004, p. 51). 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 agricultural sustainability and biodiversity

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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 a/. 2004), have underscored the vulnerability of primary industries to new forms of introduced diseases. Rapid advances in technological fields, 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 with the extensive costs involved in protecting 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 ECIT AR Committee 2004 ).

'Eradication' of an invasive species denotes 'the complete and permanent removal of all wild populations from a defined area by a time-limited campaign' (Woldendorp et a/. 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 longevity 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 a/. 2004, p. 492 citing Soria et a/. 2002). Since sleeper weeds are by definition in the 'lag phase of establishment, before rapid proliferation and spread occurs' (Woldendorp eta/. 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 without its problems. A growing number of commentators (e.g. Louda et a/. 1997; Pemberton 2000; Louda eta/. 2003; Sheppard et at. 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 a/. 2004 ). For

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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 fiddlewood, Citharexylum spinosum L. (Taylor et at. 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 rules now require national authorities 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 proactively (e.g. WWF Australia 2003) through facilitation 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 Australia to preserve its 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 post­quarantine 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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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 significance for the management of Australia'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 predominantly concerned with identifying 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 Conservation Act /999 (EPBC Act). The Senate Inquiry 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 species problem 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 at. 200 I). 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 a!. 200 I). While many

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introduced plant and animal species do not become invasive, nonetheless, it is significant to note that one of the most important invasion pathways 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 ECIT AR 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 ECIT AR 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 total landscape change (Senate ECIT AR 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 always been 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, Grice (2004) observes that there is a general 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 eta!. (2005, pp. 477-478) argue that 'current human-driven invasions are not simply 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 a!. (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).

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Australia's approach to invasive species A 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 a/. (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 a!. (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 non­native flora identified as 'invasive species' range from lantana (Lantana camara) to blackberries (Rubus fruticosus) with common non-native fauna pests being species such as European foxes (Vulpes vulpes) and cane toads ( Bufo marinus ). The Environment Protection and Biodiversity Protection Act Amendment (Invasive Species) 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 variability in 'invasiveness' also can be due to unpredictable future events, including interactions with other introduced species and changed land management practices (Paynter eta!. 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 a!. 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 invasion occurs when a species with particular 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. 200 I) 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

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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 legislative response in some cases. Thus, the 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 Biodiversity Protection Act Amendment (Invasive Species) Bill 2002 s. 266AB( I) (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( I). 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 ECIT AR Committee 2004). Local councils in some states also play an important role in weed management (MA V 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 I).

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 cost of response to the threat and consequences of it (Senate ECIT AR Committee 2004, p. 61).

Nonetheless, the federal structure of Australian government creates a particular challenge for developing an integrated invasive species risk 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.

Despite the Commonwealth's lack of a direct 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 significance' that trigger 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 problem of invasive species. As a result, the 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 primary industries, which are 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 committees, which produce strategies for other stakeholders to implement. The Natural Resources Management Ministerial Council (NRMMC) is responsible for consultation, coordination and integrated government action on natural resource management

I. Commonl\'ealth v Tasmania (1983) 158 CLR I ("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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(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 Introduced Marine Pests Coordination Group, respectively (Senate ECIT AR 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 ECIT AR 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 of Australia 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 ECIT AR 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 ECIT AR Committee 2004). Moreover, current funding levels have not remedied past shortfalls, and are termed by the independent Invasive Species Council (2004, pp. I 0-11) 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

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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 Species Management

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 I). 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 level indicates, there is scope for a far greater 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 I). 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 Prickly Pear Destruction Act i 886 and the Victorian Rabbit Act i 880. 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 separately under Fisheries Acts in all jurisdictions (e.g. inland Fisheries Act i995 (Tas); Fisheries Act i982 (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 i987 (NSW) and Non-indigenous Animals Regulation i997 (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 categories of declared plants (Tasmanian Weed Management Act i999, ss. 9, 10), whereas Victoria has four (Victorian Catchment and Land Protection Act i994, 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 i993, s. 12; Victorian Catchment and Land Protection Act i994, 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 Pastoral Land Act i992, s. 73), lessees in irrigation areas (e.g. SA irrigation (Land Tenure) Act i930, sch. 2, 3.), lessors of other types of property (e.g. NT Law of Property Act 2000, s. 119; Qld Property Law Act i974, s. 109) and mortgagors (e.g.Tasmanian Conveyancing and Law of Property Act i 884, sch. 5), as well as landowners in general (e.g. SA Soil Conservation and Land Care Act i989, 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, there is sometimes a need for species-specific

2. For example, Plant Protection (Red-banded Mango Caterpillar) Quarantine Notice 2001 (Qid): Pi am Protection (White Blister t!f Brassim) Notice 2002 (Qld).

3. For example, Apiaries Act /985 (NSW); Banana Industry Act /987 <NSW): Apiaries Act /982 (Qld); Bmrana Industry Protection Act /989 (Qld). See also

Beekeepers Act/963 (WA) and Beekeepers Regulations /963 (WA).

4. The relevant primary legislation is: Noxious Weeds Act /993 (NSW); Weed Management Act /999 (Tas); Weed Managemell/ Act 200/ (NT): and the Plant

Protection Act /989 (Qld).

5. E.g. Animal Disease.~ Act /993 (ACT) and Plant Diseases Act 2002 (ACT); Li1•estock Disease Comrol Act !994 (Vic); and the Plant Health and P/alll Products Act 1995 (Vic).

6. E.g. Land Protection (Pest and Stock Rome Management) Act2002 and Land Protection (Pest and Stock Route Management) Regulation 2003 (Qld); Animal and

Plant Control (Agricultural Protection and Other Purposes) Act /986 and Animal and Plant Control (Agricultural Protection and Other Purposes) Regulations 2002

(SA); Agriculture and Related Resources Protection Act 1976 and Agrimlture and Related Resources (Searchesfor Declared Plants and Animals) Regulations 2003

(W A): Land (Planning and E111•ironme111) Act /99/ (ACT); and the Rural Lands Protection Act /998 (NSW).

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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 species­specific way.

From agricultural pests to environmental risk: Changing scope 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,? other legislation involves only vague conservation area 'management goals' relating to invasive species (e.g. SA National Parks and Wildl(fe Act 1972, s. 37; ACT Nature Conservation Act 1980). More complex structures allow for the declaration of 'threatening processes' and corresponding action plans (e.g. Victorian Flora and Fauna Guarantee Act /998), 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 Act 1994 and South Australia's Natural Resources Management 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 species 10 or introduce new categories of 'serious pests' (Queensland Plant Protection Amendment Act 2004, ss. 6Q, 6P). However, in some cases, these changes constitute a reactive approach to serious, recently identified pest problems, such as the discovery of citrus canker (Xanthomonas axonopodis pv. citri) in Queensland, a potentially disastrous disease for Queensland's large citrus, nursery and landscape industries (Explanatory Memorandum, Queensland Plant Protection Amendment Bill 2004, ss.l-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 I).

Disparate and inconsistent state and territory approaches to risk 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 Conserl'(lfion Regulation 1994, ss. 415, 416; NT Territory Parks and Wildlife Conset'l'ation Act 1976, s. 52; SA Wilderness Protection

Regulation\· 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).

I 0. E.g. Catchment and Land Protection (Amendment) Act 2003 (Vic) ss. 5, 8. II, 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' (MA V 2003, p. I). This reflects the fact that Victorian local councils have 'broad powers in relation to environmental management and more specifically in weed management' (MA V 2003, p. 2) as they can create local laws regarding the control of weeds in their municipality under the Victorian Local Government Act /989, 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.

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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 ECIT AR 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 Biodiversity Conservation Amendment (Invasive Species) Bi/12002 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 Bill, the legislation is needed to establish a

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'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 (I)):

(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 (I)). However, the above legal definition 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 (I)). 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

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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 (!SAC). 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)(ii)), the precise nature of which is unspecified (although, in the case of import permit applications, the information required for a risk 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 Abatement Plans 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 'controlled' and 'exempt from listing' (EPBC 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 reflected the Senate Committee's view that 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 ECIT AR Committee 2004, p. 7 .59). Indeed, the Committee's concern with the problems of legislative duplication is consistent with the general

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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 ECIT AR Committee members put forward wide­ranging 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 ECITAR Committee 2004, p. 8.51 ). The recommendations encompass legislative change in selected instances, research and education, with an overriding emphasis on the importance of a 'co­ordinated, 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.

Another major focus of the Committee'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 existing institutional 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 'national framework' for invasive species, in consultation with state, territory and local governments (Senate ECIT AR 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 ECIT AR 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 ECIT AR Committee 2004, p. 8.21 ).

Another arm of the proposed national framework is a twin Commonwealth-state approach to address inter­jurisdictional 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 ECIT AR 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 ECIT AR 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 quarantine law loophole whereby whole genera containing 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 ECIT AR Committee 2004, p. 8.26). It would, however, encourage both governments and the industry to consider mandatory or voluntary labelling regimes for invasive and potentially invasive garden species (Senate ECIT AR Committee 2004, pp. 8.77-8.78). It also suggests that warnings accompany segments on televised gardening

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programmes that recommend potentially invasive plants (Senate ECIT AR 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. 30IA of the EPBC Act could presumably include), the Committee 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 ECIT AR 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 ECIT AR 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 agriculture 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 automatically remove WONS (Senate ECITAR Committee 2004, p. 8.44 ). It also suggests changes to import risk analysis procedures to ensure their independence, as proponents are currently responsible for selecting import risk analysts (Senate ECIT AR 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 permitted for import, which led to disastrous consequences for the environment (Gianznig 2005). Indeed, in early 2005, the Federal Government undertook to resolve the issue by removing all genera from the permitted seeds list and replacing it with 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 primarily environmental or social impacts. 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 ECIT AR 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 'non­economically 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 inter alia 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 species control be achieved? In light of the serious gaps and inconsistencies in the existing state and territory regimes for invasive species control, an enhanced focus on Australia-wide coordination through a 'robust national framework' is to be welcomed. Nonetheless, it may be questioned whether an effective, integrated management approach can be

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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 associated with land and water degradation 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 requiring a high-priority, co-ordinated national 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 salinity 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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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.

References Arcioni, E. 2003. Out damned weeds! Weed management in Australia: Keeping them at bay. Australasian Journal of Natural Resources Law and Policy, 8: 75-76.

Bartlett, A. 2002. Australia, Parliamentary Debates, Senate, 19 November 2002, 6739, 6741 (Senator Bartlett). Parliament of Australia, Canberra.

Brown, J.H. and Sax, D.F. 2004. An essay on some topics concerning invasive species. Austral Ecology. 29: 530-536.

Brown. J.H. and Sax, D.F. 2005. Biological invasions and scientific objectivity: Reply to Cassey et a/. (2005). Austral Ecology, 30: 481-483.

Bureau of Rural Sciences (BRS ). :>003. Submission 62a to Senate Committee on Environment, Information Technology and the Arts, Parliament of Australia. Turning Back the Tide: The Invasive Species Challenge, (2004 ). BRS, Canberra.

Cassey, P., Blackburn. T.M., Duncan, R.P. and Chown, S.L. 2005. Concerning invasive species: Reply to Brown and Sax. Austral Ecology, 30: 475-480.

Colautti, R. and Macisaac, H. 2004. A neutral terminology to define 'invasive species'. Diversity and Distributions, I 0: 135-136.

Commonwealth of Australia (COA). 1999. The National Weeds Strategy: A Strategic Approach to Weed Problems of National Significance. Revised edition. Agriculture and Resource Management Council of Australia and New Zealand, Australian and New Zealand Environment and Conservation Council and Forestry Ministers, Canberra. Online at http://mincos.gov .au/ pdf/nat_weeds_strategy.pdf (accessed 27 August 2006).

Commonwealth of Australia (COA). 2004. Extent and impact (!t" selected ecologically significant invasive species. COA. Canberra. Online at http://www.nrm.gov.au/monitoring/ indicators/pubs/vertebrate. pdf (accessed 9 February 2004 ).

Csurhes, S. and Edwards, R. 1998. Potential Environmental Weeds in Australia. Candidate Species for Preventative Control. National Weeds Program, Queensland Department of Natural Resources, Brisbane.

Department of the Environment and Heritage (DEH). 2004a. Invasive species. DEH, Canberra. Online at http://www .deh .gov. au/biodiversity lin vas i ve/index .html (accessed 27 December 2004).

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Department of Environment and Heritage (DEH). 2004b. Weeds of National Significance (WONS). DEH, Canberra. Online at http://www .deh.gov .au/biodiversity/in v asi ve/weeds/wons. htm I (accessed 27 August 2006).

Garbutt, S. 2003. Parliamentary Debates, Legislative Assembly, 6 May 2003, 1360, Sheryl Garbutt, Minister for Community Services. Parliament of Victoria, Melbourne.

Glanznig, A. 2005. Closing Australia's Quarantine Loophole to New Weeds. WWF-Australia issues paper. WWF-Australia, Sydney.

Grice, A.C. 2004. Weeds and the monitoring of biodiversity in Australian rangelands. Austral Ecology, 29: 51-58.

Grice, A.C. and Ainsworth, N. 2003. Sleeper weeds- a useful concept? Plant Protection Quarterly, 18: 35-39.

Groves, R. 1999. Sleeper weeds. In: Bishop, A.C., Boersma, M. and Barnes C.D. (Eds) Proceedings of the 12th Australian Weeds Conference, Weed Management into the 21st Century: Do we Know Where we're Going? pp. 632-636. Conference held 12-16 September, 1999, Hobart. Tasmanian Weeds Society, Hobart.

Howard, T. 2000. Introduced grasses: poor master, but useful servant. Savanna Links, 16. Tropical Savannas CRC, Darwin. Online at http://savanna.ntu.edu.au/publications/ savanna_links 16/exotics_native_plants.html (accessed 27 August 2006).

Invasive Species Council. 2004. Submission 33 to Senate ECIT AR Committee, Parliament of Australia, Turning Back the Tide: The Invasive Species Challenge, (2004). Invasive Species Council, Melbourne.

Joint Committee of Public Accounts and Audit (JCPAA). 2003. Report 394: Review of Australia's Quarantine Function. Parliament of the Commonwealth of Australia. Australian Government Printing Service, Canberra.

Lee, B., Hankappan, S., Marsden, T., Flynn, A. and Carson, L. 2004. Regulation, Science, and the Management of Risk in the Food Chain. Economic and Social Research Council Centre for Business Relationships, Accountability, Sustainability and Society, Cardiff, Wales.

Leverenz, R. 2004. Submission 27a to Senate Environment, Communications, Information Technology and the Arts References Committee.

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Louda, S.M., Kendall, D., Connor, J. and Simberloff, D. 1997. Ecological effects of an insect introduced for the biological control of weeds. Science, 277: I 088-1090.

Louda, S.M .. Pemberton, R.W .. Johnson. M.T. and Follett, P.A. 2003. Nontarget effects - the Achilles' heel of biological control? Retrospective analyses to reduce risk associated with biocontrol introductions. Annual Review of Entomology, 48: 365-396.

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Low, T. 2002. The New Nature: Winners and Losers in Wild Australia. Penguin Books, Camberwell, Victoria.

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Municipal Association of Victoria (MA V). 2003. Victorian Local Government Weed Management Report: Programs, Resources and Management Approaches. MAY, Melbourne.

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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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Australian Capital Territory

ACT Vertebrate Pest Management Strategy (2002)

ACT Weeds Strategy: A 10 year strategyfor implementing a co-ordinated program for controlling weeds in the ACT ( 1996)

Animal Diseases Act 2005

Animal Welfare Act 1992

Fisheries Act 2000

Land (Planning and Environment) Act 1991

Nature Conservation Act 1980

Pest Plants and Animals Act 2005

Plant Diseases Act 2002

Northern Territory

Biological Control Act 1986

Djukbinj National Park Local Management Committee (Djukbinj Board) Regulations 1997

Energy Pipelines Act 1982

Exotic Diseases (Animals) Compensation Act 1958

Exotic Diseases (Animals) (Screw Worm F(v Infestation) Compensation Regulations 1988

Fisheries Act 1988

Fisheries Regulations 1992

Keep River National Park Local Management Committee Regulations 1992

Law ofProperty Act 2000

Northern Territ01y Weeds Management Strategy

Pastoral Land Act 1992

Plant Diseases Control Act 1979

Stock Diseases Act 1954

Territo1y Parks and Wildl{le Conservation Act 1976

Weeds Management Act 2001

Commonwealth

National Weeds Strategy ( 1997)

National Weed~ Strategy Five Year Report ( 1997-2002)

New South Wales

Agricultural Industry Services Act 1998

Agricultural Livestock (Disease Control Funding) Act 1998

Apiaries Act i985

Banana 1ndusfly Act 1987

Biological Control Act 1985

Conveyancing Act 1919

Exotic Diseases of Animals Act 1991

Exotic Diseases of Animals Regulation 2003

Fisheries Management Act 1994

Fisheries Management (General) Regulation 2002

Game and Feral Animal Control Act 2002

Game and Feral Animal Control Regulation 2004

Lord Howe Island Regulation 2004

Marine Parks Regulation 1999

National Parks and Wildlife Regulation 2002

Native Vegetation Act 2003

Native Vegetation Conservation Act 1997

Non-indigenous Animals Act 1987

Non-indigenous Animals Regulation 1997

Noxious Weeds Act 1993

Noxious Weeds Amendment Act 2005

Noxious Weeds Regulation 2003

NSW Weeds Strategy ( 1998)

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Queensland

Animal Care and Protection Act 2001

Apiaries Act /982

Banana industry Protection Act 1989

Biological Control Act 1987

Exotic Diseases in Animals Act 1981

Exotic Diseases in Animals Regulation /998

Fisheries Act i994

Fisheries (Freshwater) Management Plan i999

Fisheries Regulation 1995

Land Act 1994

Land Regulation 1995

Land Protection (Pest and Stock Route Management) Regulation 2003

Local Government (Aboriginal Lands) Act 1978

Nature Conservation Regulation 1994

Nature Conservation (Wildlife) Regulation 1994

Plant Protection Act 1989

Plant Protection (Canker) Notice 2004

Plant Protection (imported Red Fire Ant) Notice

Plant Protection (Red-banded Mango Caterpillar) Quarantine Notice 200 I

Plant Protection (Wheat Streak Mosaic Viru.\) Notice 2003

Plant Protection (White Blister of Brassica) Notice 2002

Property Law Act 1974

Queensland Pest Animal Strategy

Queensland Weeds Strategy

Stock Act 1915

Stock Regulation 1988

Vegetation (Applicationfor Clearing) Act 2003

Vegetation Management Act /999

Wet Tropics Management Plan 1998

September 2006

Plant Diseases Act i924

Rural Lands Protection Act i998

Seed~ Act i982 (repealed by the Noxious Weeds Amendment Act 2005)

Stock Diseases Act i923

Stock Diseases Regulation 2004

Western Lands Act /901

Wilderness Amendment Bill 2004

South Australia

Animal and Plant Control (Agricultural Protection and Other Pwposes) Act 1986

Animal and Plant Control (Agricultural Protection and Other Purposes) Regulations 2002

Biological Control Act i986

Crown Lands Act i929

Fisheries Act /982

Fisheries (Exotic Fish, Fish Farming and Fish Diseases) Regulations 2000

Irrigation (Land Tenure) Act 1930

Livestock Regulations i998

National Parks and Wildlife Act i972

Native Vegetation Regulations 2003

Natural Resources Management Act 2004

Noxious insects Act 1934

Primary industry Funding Schemes Act /998

Primary Producers Emergency Assistance Act 1967

Soil Conservation and Land Care Act i989

Weed Strategy for South Australia 1997

Wilderness Protection Act /992

Wilderness Protection Regulations /992

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Tasmania

Animal Health Act 1995

Biological Control Act 1986

Conveyancing and Law (~(Property Act 1884

Fisheries (General and Fees) Regulations 2006

Fisheries Rules 1999

Living Marine Resources Management Act 1995

Nature Conservation Act 2002

Plant Quarantine Act 1997

Plant Quarantine Regulations 1998

Seeds Act 1985

Seeds Regulations 2000

Weed Management Act 1999

Weed Management (Declared Weeds) Order 2001

Weed Management Regulations 2000

Weed Plan- A Tasmanian Weed Management Strategy (1996)

Wellington Park Regulations 1999

Western Australia

Agricultural Produce Commission Act 1988

Agriculture and Related Resources Protection Act 1976

Victoria

Agricultural Industry Development Act 1990

Biological Control Act 1986

Catchment and Land Protection Act 1994

Catchment and Land Protection Regulations 2002

Fisheries Act 1995

Fisheries Regulations 1998

Flora and Fauna Guarantee Act 1988

Forests Act 1958

Land Act Regulations 1996

Livestock Disease Control Act 1994

Livestock Disease Control Regulations 1995

Local Government Act 1989

National Parks Act 1975

Pipelines Act 1967

Planning and Environment Act 1987

Plant Health and Plant Products Act 1995

Plant Health and Plant Products Regulations 2006

Tran.~fer of Land Act 1958

Victorian Pest Management- A Framework for Action (2002)

Victorian Weed Management Strategy

Agriculture and Related Resources (Searches for Declared Plants and Animals) Regulations 2003

Agriculture and Related Resources Protection (Declared Animals) Regulations 1985

Agriculture and Related Resources Protection (Fencing) Regulations 1985

Agriculture and Related Resources Protection (Payment for Destruction ofDec/ared Animals) Regulations

Beekeepers Act 1963

Beekeepers Regulations I 963

Biological Control Act 1986

Dra_t; Environmental Weeds Strategyfhr Western Australia

Enzootic Diseases Regulations 1970

Exotic Diseases (~f Animals Act 1993

Exotic Diseases (Emergen(:v Po11·ers) Regulations

Exotic Diseases (General) Regulations 1970

Fish Resources Management Act 1994

Fish Resources Management Regulations 1995

Petroleum Pipelines Act 1969

Plant Pests and Diseases (Eradication Fund\) Act 1974

Plant Pests and Diseases (Eradication Funds) Regulations 1982

Seeds Act 1981

Seed~ Regulations 1982

Stock Diseases (Regulations) Act 1968

Wildl(je Conservation Regulations 1970

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