The industry-centric birth of a biosecurity law

cnt-industry-centric

Strong biosecurity is essential for protecting our natural environment but the biosecurity law passed by the Australian Senate mid-May 2015 shows we still have a long way to go before keeping our native plants and animals safe from dangerous new invasive species is given the weight it deserves. 

The new law lacks basic accountability and transparency measures and principles regarded as fundamental to environmental protection, measures and principles that would also benefit agricultural interests.

Is anybody listening?

Over the past six years we have worked hard to improve the Biosecurity Bill, providing detailed rationales for proposed changes. But at each step we encountered disinterest and defensiveness.

We were part of an ‘Industry Legislation Working Group’ process providing input to the Bill, but the group’s role was mainly limited to checking for mistakes. There was little change when an exposure draft of the legislation was released for broader public comment, and essentially the same legislation was brought into the federal parliament a month after submissions closed. This 2012 version of the Bill created under a Labor government changed little when the final 2014 version was brought back under a Coalition government.

Twice, the Biosecurity Bill was referred to the Senate Rural and Regional Affairs and Transport committee for review. There was no reference to the Senate’s environment committee. Despite a substantial submission by 20 environmental groups (27 for the second inquiry review), each review ignored environmental concerns, apart from ‘additional comments’ by the Greens in the final committee report.

Opportunity lost

The public debate about the Biosecurity Bill led by Labor and the Coalition centred on whether there should be a statutory Inspector-General of Biosecurity. While this position is good for accountability, Labor and the Coalition ignored weightier issues.

Meanwhile, the Greens drafted 14 amendments advancing ideas we had raised and issues raised by agricultural industry groups during earlier consultation (see below: About the Greens amendments).

The Greens’ effort had no effect. Once the Coalition accepted Labor’s version of an Inspector-General of Biosecurity, Labor voted with the Coalition to pass the Biosecurity Bill, refusing to consider further amendments.

Dr Allan Hawke, who reviewed the Environmental Protection and Biodiversity Conservation Act in 2009, in his advice to the environment minister on biosecurity identified ‘a problem of “culture”’ in the agricultural department, with its ‘primary focus on trade and primary production’. The reluctance of the main parties to treat biosecurity legislation as a high priority environmental law, and equip it with principles and measures regarded as foundational to good environmental governance, exemplify this cultural limitation.

The divide between environmental law and biosecurity law underpinned comments in the final debate by Senator Colbeck (Liberal): ‘Whilst not diminishing the importance of the consideration of the environment and conservation, the focus of the Biosecurity Bill is the management of biosecurity risks. The definition of biosecurity risk clearly includes a reference to the environment. There are more appropriate Commonwealth acts which support environmental conservation, and many of the ideas put forward by the Greens in this space are best placed in such legislation.’ He did not specify how changing other laws could influence how biosecurity is practiced.

One of the nonsensical arguments against environmental reforms has been that they will lead to the environment being treated as a silo within biosecurity, as articulated by Senator Fifield (Liberal), who said that ‘dealing with environmental biosecurity as a separate issue or function may actually act to the detriment of the system as a whole’.

In fact, the opposite would be true – incorporating environmental measures and according the environment equal priority to agriculture would strengthen the entire biosecurity system.

The good news

There are improvements resulting from the new Bill. The legislation takes a more expansive view of biosecurity and has stronger and more flexible powers to limit biosecurity risk.

It codifies Australia’s level of risk (called the ‘appropriate level of protection’) as a ‘high level of protection’ from pests and diseases impacting on humans, plants and animals, and aims to reduce the biosecurity risk to a ‘very low level, but not to zero’. This sounds good in theory, but there is a high level of discretion in how this is applied.

The Bill activates the Convention on Biological Diversity, providing a stronger legal basis for protecting the natural environment from invasive species. It provides for uniform regulation of ballast water discharges in Australian waters and has new powers and tools such as control orders and biosecurity zones that can be applied for environmental benefit.

What next?

The government stated that the new biosecurity law will begin operation twelve months after ‘assent’, expected in a few weeks of passing parliament. During this time, regulations will be developed that spell out the detailed operation. Government promised agricultural industry groups that there will be extensive consultation during this process. It was this guarantee that secured industry support for the bill. We were offered no such undertaking.

We thank the people and organisations that supported us during our work seeking to strengthen the Biosecurity Bill. Many provided technical advice or made submissions during the consultation processes. Over 160 people delivered messages to Labor and the cross benchers during the final weeks.

More information

Biosecurity Bill, amendments and speeches >>

About the Greens’ amendments

Following is a summary of amendments drafted by the Greens.

  1. Two yearly reporting: Report to Parliament every two years on the state of Australia’s biosecurity.

 Rationale: Biosecurity is characterised by a lack of transparency – for example, there is no regular reporting on incursions, priorities or the outcomes of most risk assessments. A reporting requirement will improve accountability and allow biosecurity participants, members of parliament and the public to better gauge the state of biosecurity in Australia, and identify areas most in need of improvement.  

  1. A role for the Dept of Environment: Amendments that allow for the Dept of Environment and the Minister to have a role in Biosecurity management under this legislation (and to be delegated powers), including:
  • Issuance of biosecurity guidelines and priorities for BIRAs, delegations.
  • Delegation of powers to Environment Minister or Department.
  • Review and auditing of environmentally relevant risk assessments, BIRAs and import decisions.
  • Declaration of environmental biosecurity emergencies.
  • Provide the Secretary of the Department of the Environment with powers to make biosecurity control orders where there is a biosecurity risk to a Matter of National Environmental Significance under the EPBC Act and for decisions resulting in significant harm to the environment (per Quarantine Act s11C-11E).
  • Declarations of biosecurity zones for conservation purposes.

Rationale: The environment minister and department should have defined statutory roles to ensure that environmental biosecurity receives high priority and is integrated with the environmental biosecurity functions under the EPBC Act and related environmental obligations such as the biodiversity conservation strategy. 

Because invasive species are among the top three environmental threats, improving biosecurity should be a very high priority for the environment department and minister as well as agriculture department. It should facilitate cooperation between the two departments. (There is a statutory role for the health portfolio under the biosecurity bill, and the Quarantine Act already required consultation with the Environment Minister over biosecurity decisions that may involve a significant risk of environmental harm.)

  1. Defining biosecurity risk:
  • recognise regional differences;
  • recognise changes through time, to require that risks are assessed over an ecologically relevant time frame and take account of climate change;
  • include the likelihood of new genotypes of a disease or pest combining with others to exacerbate the potential for the disease or pest to cause harm or to cause greater harm than existing genotypes; and
  • recognise different levels of biodiversity (ranging from ecosystem to genetic level).

Rationale: These are important aspects of biosecurity risk and specifying them in legislation should improve the robustness of risk assessments. The Beale review highlighted concerns that regional differences have been neglected or inconsistently recognised in risk assessments. Risk assessments of all types should take into account likely environmental changes in the future, including climate change. There is accumulating evidence that increasing the genetic diversity of species exacerbates the likelihood of invasiveness and potential impacts –- for example, by boosting species’ tolerances, range or competitiveness – but the particular impacts of new genotypes is difficult to predict. The Hawke review of the EPBC Act advised that ‘a more systematic approach is needed for assessing proposed new imports to respond to the potential invasive risks of new variants of currently listed species.’ Risk assessments also need to account for the immense diversity of Australian ecosystems and all levels of biodiversity (including ecosystems, ecological communities, species, populations).

  1. Third party review and injunction rights: Provide third party rights for review of decisions and to seek injunctions to restrain unlawful activity equivalent to those available under the EPBC Act for decisions and activities relating to imports of live specimens.

Rationale: Appeal rights under the biosecurity bill are lopsided, provided only for import applicants. Providing appeal rights to people acting in the public interest, equivalent to existing rights under the EPBC Act, should improve the quality of decision-making and increase accountability.

  1. Precautionary principle: inserting reference to the precautionary principle in a similar way as the Queensland Biosecurity Act 2014 as follows:
  • Include a note in ‘Appropriate level of protection’ (Chapter 1, Part1, Section 5), specifying that if there is insufficient evidence to determine biosecurity risk, or if the available evidence is inconclusive in that regard, then the precautionary principle will apply.
  • Require application of the precautionary principle in decision-making under the Biosecurity Act.

Rationale: The precautionary principle is integral to effective biosecurity; it is a fundamental principle in environmental decision-making and required for import decisions made under the EPBC Act. The precautionary principle is particularly important for the environment because of the very limited knowledge about many potential impacts and the great harm that can result from invasive species. The precautionary principle is part of the Queensland Biosecurity Act 2014 and the precautionary approach is part of the Guiding Principles for the implementation of Article 8(h) of the Biodiversity Convention (adopted by Australia at the 2002 conference of the parties). This principle states:

Guiding principle 1: Precautionary approach

  1. Given the unpredictability of the pathways and impacts on biological diversity of invasive alien species, efforts to identify and prevent unintentional introductions as well as decisions concerning intentional introductions should be based on the precautionary approach, in particular with reference to risk analysis, in accordance with the guiding principles below …
  2. The precautionary approach should also be applied when considering eradication, containment and control measures in relation to alien species that have become established. Lack of scientific certainty about the various implications of an invasion should not be used as a reason for postponing or failing to take appropriate eradication, containment and control measures.    (Decision 23, COP 6)

Although legal opinion may be divided on the precise boundaries between trade laws and the precautionary principle, Australia should still give priority to harmonising biosecurity integrity and environmental protection in a way that incorporates the precautionary principle without bringing such regulation into direct conflict with the rules of the WTO. The EPBC Act already does that for its approval process for importing live animals and plants.

  1. Environmental Biosecurity Strategy and Action Plan: The Agriculture Minister and the Environment Minister must take all reasonable steps to ensure an Environmental Biosecurity Strategy and Action Plan is developed, and prepared in written form, as soon as practicable after the commencement of this Act. 

Rationale: An essential complement to biosecurity laws is a biosecurity strategy and action plans that identify the priorities, targets and actions necessary to achieve national environmental goals. Environmental biosecurity lags behind agricultural biosecurity and lacks a strategic approach. The Guiding Principles for the implementation of Article 8(h) of the Biodiversity Convention emphasise their importance and identify important elements. The proposed biosecurity strategy would encompass and build on existing strategies and address other invasive species categories (eg. invertebrates, fungi and pathogens) and priority gaps. Their development and implementation should manifest a partnership approach, and meaningfully involve the community and environmental sectors.

  1. General Biosecurity obligation: Require all biosecurity participants to exercise a general biosecurity obligation to take all reasonable and practical measures to prevent and minimise biosecurity risks, with provisions similar to those in Queensland’s Biosecurity Act 2014. Also, create an offence of accepting goods knowing, suspecting, or in wilful disregard of whether the goods were illegally imported or derived from illegally imported goods.

Rationale: No matter how comprehensive biosecurity laws are, there will inevitably be a myriad of actions and omissions contributing to biosecurity risks that are not addressed. The Beale review emphasised the importance of biosecurity as a shared responsibility, which requires not only that biosecurity participants obey the law but that they generally take care to observe, report, and minimise biosecurity risks. Requiring all biosecurity participants to take all reasonable and practical measures to prevent or minimise biosecurity risk will help achieve shared responsibility. This type of obligation was included in the Queensland Biosecurity Act 2014 and was proposed by the NSW Government in the Biosecurity Bill 2014.

  1. New offence of possession of illegally imported animal or plant: The Biosecurity Bill has offences for receiving or possessing prohibited or conditionally non-prohibited goods brought or imported into Australia but they do not apply if:
    1. the goods were not brought or imported into Australian territory; or
    2. the defendant did not bring or import the goods into Australian territory;

This means that anyone who is further along the chain of receiving illegally imported plants or animals or their progeny does not commit an offence under the Biosecurity Act. The amendment removes this loophole. 

  1. Public release of approved arrangements: Published on the department website.

Rationale: Biosecurity is characterised by a lack of transparency. Publishing the approved arrangements will allow greater oversight.

  1. Improved definition of the environment to ensure that invasive species cannot be captured under this definition.

Rationale: This amendment avoids the unintended consequences in the implementation of the Act. It is modelled on provisions in the EPBC Act, which has a broader definition of environment that is unsuitable in the biosecurity context.

  1. Eminent Scientists Group: provides external scientific and economic scrutiny of significant biosecurity import risk analyses as proposed by the Beale biosecurity review. It codifies the existing group.
  1. Advisory Council: to provide a forum for stakeholders to provide strategic advice on significant biosecurity issues, policy and planning as proposed by the Beale biosecurity review. Labor created an unsatisfactory version of this body, that has since been abolished.
  1. Community Consultation: The Act is to be administered, as far as practicable, in consultation with, and having regard to the views and interests of: Indigenous groups; industry groups; local governments; public sector entities; conservation organisations; any other interested groups; the general community. This provision is based on a similar provision in the Queensland’s Biosecurity Act 2014.
  1. Extension of the Biosecurity Act to Australia’s external territories: Extend the operation of the Act to cover all of Australia’s external territories other than Antarctic.

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