Part 1: Background and context
The Department of Primary Industries (DPI) undertook an internal strategic review of the legislative framework for the management of invasive plants and animals in 2011. The review was undertaken because the incremental changes made to the Catchment and Land Protection Act 1994 (CaLP Act) over the years did not keep pace with Victoria's evolving invasive plant and animal policy and approach to biosecurity management. This review recommended major reform to modernise its legislative framework for the management of invasive species. DPI also completed a comprehensive assessment of current legislation that relates to biosecurity incidents (see Table 1) under the National Environmental Biosecurity Response Agreement (NEBRA).
The review demonstrated that Victoria is well placed to implement the NEBRA in response to certain types of incidents, such as incursions of animal and plant diseases, but that there are gaps in Victoria's legislative powers to respond to other types of incidents, such as incursions of new terrestrial and aquatic invasive plants or animals. The report concluded that there is a strong case for the development of stand-alone legislation for the management of invasive species, given the range and extent of amendments to existing legislation that would otherwise be required.
Victoria's Biosecurity Standing Committee (BSC) which includes representatives of DPI, the Department of Sustainability and Environment (DSE) and Parks Victoria (PV) is supportive of legislative reform to address existing legislative deficiencies and to modernise and strengthen Victoria's biosecurity legislation. The Minister for Agriculture and Food Security has also approved the development of a new stand-alone Invasive Species Management Bill to replace the noxious weeds and pest animal provisions of the CaLP Act and close the gaps in powers to deal with incursions of taxonomic groups currently not, or only partially, covered by Victoria's biosecurity legislation.
|Livestock Disease Control Act 1994||The Livestock Disease Control Act 1994 (the LDC Act) provides the legislative framework for the prevention, monitoring and control of livestock1 diseases to protect domestic and export markets and public health.|
|Plant Biosecurity Act 2010||The purpose of the Plant Biosecurity Act 2010 (PB Act) is to prevent, monitor, control and eradicate plant pests and diseases in Victoria.|
|Catchment and Land Protection Act 1994||The Catchment and Land Protection Act 1994 (the CaLP Act) is the main legislation covering noxious weed and pest animal management in Victoria and provides the power to declare species of plants and animals as noxious. One of the main objectives is to protect primary production, Crown land, the environment and community health from the threats posed by noxious weeds and pest animals.|
|Fisheries Act 1995||The Fisheries Act 1995 provides the legislative framework for the regulation, management and conservation of Victorian fisheries and includes limited provisions to declare noxious aquatic species which may impact on fisheries resources. It includes powers to prevent the taking, possession, trade or movement of aquatic species declared noxious under the Act. The Act also contains a provision regulating the stocking of fish. This has been used to develop translocation guidelines and protocols to manage biosecurity risks associated with the movement and stocking of live aquatic organisms.|
 Under the LDC Act, "livestock" are defined as "any non-human animal, and any fish or bird, whether wild or domesticated, egg intended for hatching or bee".
DPI's aims in relation to this project are to:
- Develop, within the current term of the Victorian Parliament (e.g. by late 2014), a contemporary, efficient and enabling Invasive Species Management Act that is in accordance with the Biosecurity Strategy for Victoria and the Invasive Plants and Animals Policy Framework (IPAPF).
A key component of this aim is to gather stakeholder feedback on our proposed conceptual framework through this consultation process. Feedback will be used to test the suitability of the proposed conceptual framework for new invasive species management legislation and identify any further improvements.
- Develop subordinate legislative instruments (such as regulations) once Royal Assent has been received for the new Act.
It is intended that these instruments will be developed in consultation with affected parties after receiving Royal Assent for the new Act and in accordance with the requirements of the Subordinate Legislation Act 1994 (SL Act). This will ensure that unreasonable regulatory burdens are not created and that subordinate legislative instruments are proportional to the risks being managed.
It is anticipated that these instruments will be developed post 2014.
2 Current invasive species management legislation and policies
2.1 Current legislation
There are multiple pieces of legislation that play a role in preventing or responding to terrestrial and aquatic biosecurity threats in Victoria. There are three Acts that provide the primary powers to prepare for, or respond to, a biosecurity incident in Victoria: the Catchment and Land Protection Act 1994 (the CaLP Act), the Livestock Disease Control Act 1994 (the LDC Act) and the Plant Biosecurity Act 2010 (the PB Act). These Acts address biosecurity incidents related to invasive plants and animals, animal health and disease, and plant health and disease respectively.
The CaLP Act is the main legislation covering noxious weed and pest animal management in Victoria. It provides the power to declare species of plants and animals as 'noxious' and regulates the control, importation into the State, keeping, movement, trade and release of noxious weeds and pest animals in Victoria. The Minister for Environment and Climate Change and the Minister for Water formally administer the Act jointly and severally. The Minister for Agriculture and Food Security, through DPI, is however responsible for invasive plant and animal policy and direction setting and has delegated responsibility for enforcement of the noxious weed and pest animal provisions of the CaLP Act. The objective of those provisions is to protect primary production, Crown land, the environment and community health, from the threats posed by noxious weeds and pest animals. The Act only applies to noxious weeds and pest animals and specifically excludes fish and invertebrates from its scope. Its applicability to invasive marine species and micro-organisms is unclear.
The LDC Act provides the legislative framework for the prevention, monitoring and control of livestock diseases to protect domestic and export markets and public health and the key purpose of the PB Act is to prevent, monitor, control and eradicate plant pests and diseases in Victoria. The PB Act has recently replaced the Plant Health and Plant Products Act 1995 (the PHPP Act).
In addition to the Acts outlined above, there are numerous other Victorian Acts that may play a role in supporting or constraining biosecurity preparedness and responses, including:
- Aboriginal Heritage Act 2006
- Agricultural and Veterinary Chemicals (Control of Use) Act 1992 and the Drugs, Poison and Controlled Substances Act 1981
- Biological Control Act 1986
- Environment Protection Act 1970
- Firearms Act 1996
- Flora and Fauna Guarantee Act 1988
- Impounding of Livestock Act 1994
- Land Act 1958
- Local Government Act 1989
- Marine Act 1988
- National Parks Act 1975
- Occupational Health and Safety Act 2004
- Parks Victoria Act 1988
- Planning and Environment Act 1987
- Port Management Act 1995
- Prevention of Cruelty to Animals Act 1986
- Road Management Act 2004
- Road Safety Act 1986
- Sale of Land Act 1962
- Wildlife Act 1975.
2.2 Government involvement
Victoria operates within a national biosecurity system (see Appendix 2). The Commonwealth and state and territory governments work in partnership with industry and communities to protect agricultural production and natural resources from invasive species and support the profitability, productivity and competitiveness of our food and fibre industries. Ultimately, effective biosecurity systems play a key role in ensuring the preservation and expansion of global market access for products of Victoria's primary industries.
Invasive species reduce industry productivity and can limit access to interstate and international markets. Invasive species are also significant threats to the environment and natural biodiversity; the broader economy; community amenity (i.e. home gardens, public parks and gardens and streetscapes); and the ability to meet national and international obligations.
Governments can use their legislative power to implement biosecurity services, and to force individuals to reduce risks for the benefit of a wider industry, sector or community. In addition, government can generally provide biosecurity services more cheaply and effectively than each industry could individually. The cost of these services may sometimes be recovered through cost sharing arrangements with affected industries. These reasons often warrant government involvement in biosecurity.
Victoria uses a risk-management approach to reduce the effects of invasive species threats. This biosecurity system is achieved by a combination of legislation, economic incentives, quality assurance and education. A mix of these tools is appropriate because they vary in their effectiveness in achieving any particular goal.
2.3 Current policies and their role
The management of existing and potential invasive species in Victoria is guided by a whole of government Biosecurity Strategy and the Invasive Plants and Animals Framework (IPAPF). The Biosecurity Strategy and the IPAPF emphasise a risk-management approach to government involvement and investment to ensure that the state is well-positioned to meet future biosecurity challenges.
2.3.1 Biosecurity strategy for Victoria
The Biosecurity Strategy for Victoria outlines a vision for this state's management of biosecurity. The Strategy is a response to changing biosecurity risks and threats that may arise from climate variability, changes in land use and increasing global trade.
This vision is articulated through six themes:
- Developing partnerships: involves strengthening the collaborations between government, industry and the community, in the delivery of biosecurity outcomes across an expanding range of threats.
- Strengthening the coverage: extending the biosecurity focus beyond land-based primary industries to include areas such as marine and freshwater habitats, and the threats to social and amenity assets.
- Making sound decisions and investments: biosecurity involves managing risks and making decisions based on a clear understanding of potential threats, likely pathways of introduction and factors influencing change, and then focusing interventions on the areas of highest risk and return. The decision-making process must be consistent, transparent and include consultation and input from stakeholders.
- Building the biosecurity skill base and systems: strengthen our ability to address biosecurity threats through adequate research programs, legislation and information technology systems. Enhance the biosecurity capabilities of government, industry and the community and strengthen Victoria's biosecurity communication capacity.
- Smarter surveillance: for accurate and effective monitoring of disease and pest situations across the state Victoria needs comprehensive, flexible and sensitive systems in place. Such systems will provide information to underpin routine interstate and international trading and certification requirements, and enable the rapid identification of threats that require investigation by experts in animal, plant and ecosystem health.
- Responding to incursions: early detection and a rapid response is the key to effective biosecurity emergency management. This strategy aims to strengthen Victoria's response by building extensive networks across agencies, organisations and within the community; promoting emergency management relationships; and strengthening response capacity, capability and communication.
The Biosecurity Strategy for Victoria covers threats to primary industries, the environment, social amenities and human health, across Victorian public and private land, freshwater and marine habitats caused by:
- plant pests and diseases
- animal pests and diseases including diseases that can be transmitted between animals and humans (i.e. zoonoses)
- invasive plants and animals. Its primary focus is on new and emerging high-risk threats, rather than on established threats currently managed by government, industry, the community or other parties.
2.3.2 Invasive Plants and Animals Policy Framework
The IPAPF sits within the context of the whole-ofgovernment Biosecurity Strategy for Victoria and represents the Victorian Government's approach to managing existing and potential invasive species across the whole of Victoria. The Victorian Government's approach will be to prevent the entry of new high risk invasive species, eradicate those that are at an early stage of establishment, contain where possible species that are beyond eradication, and take an impact reduction approach to managing widespread invasive species.
The IPAPF is supported by four modules, each explaining current arrangements, identifying some current and potential future management actions, and setting out roles and responsibilities for each invasive plant and animal grouping.
- Module 1: Weeds and Vertebrate Pests. The scope of this module encompasses mammals, birds, amphibians, reptiles and both terrestrial and freshwater plants.
- Module 2: Invasive Marine Pests (under development). The scope of this module encompasses exotic invasive marine plants, marine algae, marine invertebrate animals and marine fish. It excludes non-fish marine vertebrate animals such as mammals (e.g. whales and seals), reptiles (e.g. sea snakes), amphibians and birds. These are included in Module 1. Module 2 also excludes diseases and pathogens of marine plants and animals.
- Module 3: Invasive Freshwater Fish and Freshwater Invertebrates (under development). The scope of this module encompasses invasive freshwater fish and invasive freshwater invertebrate pests. Invasive freshwater plants and other freshwater vertebrates (such as turtles, amphibians and mammals), which are also freshwater biosecurity threats, are encompassed in Module 1.
- Module 4: 'Invertebrate Pests'. This document is under development.
3 Reasons for change
The CaLP Act provides a legislative framework for noxious weeds and pest animal management in Victoria. Since its inception in 1994, there have been many changes to the biosecurity environment that impact on the way this Act operates. Like other state and national agencies, Victoria has adopted a biosecurity approach to manage these changes over the past 18 years. A number of amendments have been made to both the CaLP Act and its accompanying regulations. However these did not keep up with the breadth of change in the biosecurity environment and the evolving invasive plant and animal policy and approach to biosecurity.
3.1 Rapidly changing operational environment
Some of the most significant changes in the operating environment include:
- Globalisation and the expansion of overseas travel and trade. These have increased Victoria's exposure to biosecurity risks and increased the rate of new incursions (both deliberate and accidental).
- Changing land use and demography in rural and regional Victoria. These changes have significant implications for the incursion and management of invasive species, particularly where they result in:
- new agricultural industries that present a high risk of new incursion
- less cohesive groups of land owners with a more disparate range of knowledge, aspirations, skills and attitudes
- large scale agricultural enterprises with fewer people. This has implications for intensive control requirements and may reduce capacity for monitoring and surveillance.
- Climate variability. Climate variability may favour the establishment of many new incursions and alter (i.e. increase or decrease) the geographic range of invasive species already established.
- Changing consumer and public preferences and expectations. Changes in the preferences and expectations about the variety and availability of food, pets and garden species have led to potential new pathways for the emergence and spread of invasive plants and animals. Changing levels of knowledge, aspirations, skills and attitudes are affecting the methods that can be used in invasive species management activities. In addition, changes in the preferences and expectations about the acceptability of control techniques have impacted, or may impact, on the availability and development of control techniques.
3.2 Key issues with existing legislation
Some of the key issues with the existing legislative framework for the management of invasive species include:
- Inadequate legislative provisions to enable greater emphasis on prevention and early intervention consistent with biosecurity policy. Major legislative reform is needed to support a greater focus on prevention and early intervention that will allow a rapid response to new and emerging threats and to integrate the management of widespread invasive species with broader biosecurity and land and water management objectives. Prevention and early intervention to manage risk generally provide the most cost-effective means for achieving positive biosecurity outcomes while invasive species that are more widespread are best managed through approaches that emphasise containment and protection of our most valuable assets.
For example, powers to enter land for monitoring and surveillance purposes are particularly limited under the CaLP Act and this is impacting on the Secretary's ability to meet his requirements under that Act.
- Inadequate prevention and early intervention provisions impact on our ability to meet commitments under national agreements such as the proposed National Environmental Biosecurity Response Agreement (NEBRA).
DPI assessed Victoria's legislative powers to respond to an incursion of animal and plant diseases and terrestrial and aquatic invasive plants or animals against the legislative and administrative arrangements for responding to an emergency under NEBRA and concluded that there are significant deficiencies in the CaLP Act's ability to meet the requirements under this agreement.
- Over-reliance on a complex system of declaration categories as part of the basis for determining the responsibilities for managing particular invasive species. The CaLP Act relies on four declaration categories to regulate noxious weeds and four categories to regulate pest animals. Although the principles for managing these invasive species are similar, the categories are not, making it difficult for people to comply with, understand and work with this Act.
- The complexity of legislative requirements for the declaration of plants as noxious weeds limits the ability to use declaration as a dynamic tool to manage new and existing threats. The prescriptive provisions of the CaLP Act make it difficult to declare new species as a noxious weed or pest animal or change the category of a noxious weed or pest animal in a timely manner. The noxious weeds review process is an example of a process that took many years and was eventually overtaken by changing priorities.
- Inadequate and limited provisions to regulate the risk associated with carriers of invasive species. A carrier of an invasive species could be an animal or plant, or part of any animal or plant, or any other thing (dead, alive or inanimate) that is capable of moving an invasive species from a place to another place. In contrast to other biosecurity legislation, such as the PB Act or LDC Act, the CaLP Act has limited provisions for regulating the risk associated with carriers, effectively resulting in a gap in our biosecurity framework.
- The limitation of legislation to a narrow range of invasive plants and animals. For example, under the CaLP Act, the Minster cannot recommend invasive fish or invertebrates such as red imported fire ants for declaration. These groups of invasive species are only partially covered by other biosecurity and fisheries legislation, effectively resulting in gaps in our legislative framework for the management of invasive species in Victoria.
4 Implementing new legislation
DPI concluded that simple, enabling and purposely designed invasive species management legislation is needed to address the risks associated with the rapidly changing operational environment and the key issues with existing legislation. The Biosecurity Standing Committee and the Minister for Agriculture and Food Security have recognised the need for major legislative reform and the Minister has endorsed the development of a new Invasive Species Management Act within the current term of parliament. Subordinate legislation will be developed post 2014 and will be subject to appropriate legislative processes and scrutiny.
DPI believes that when operational, the proposed legislation will improve Victoria's ability to prevent new high risk invasive species from establishing, eradicate high risk invasive species already present in an area, contain and reduce the spread of established species and manage the impacts of invasive species that are already widely established in Victoria.
The types of measures that were enabled by the CaLP Act will, at least in some form, continue to be available under the new legislation and additional measures will become available. One example is the improved ability to regulate carriers, which is intended to provide a more efficient way to reduce invasive species' risks associated with introduction pathways.
Administrative efficiency will improve by giving the Minister responsible for biosecurity policy the administrative responsibility for the legislation and by standardising and combining invasive species provisions into a comprehensive single piece of legislation.
An immediate change as a result of the new Act would be the removal of the vacuum in powers to deal with incursions of taxonomic groups that currently are not, or only partially, covered by our biosecurity legislation. For example our ability to manage an incursion of red imported fire ants or noxious fish that do not impact on our fisheries resources is currently severely limited.
An important feature of the new legislation is that many specific provisions will be defined in subordinate legislative instruments, rather than detailed in the Act itself. Consequently, many of the changes with direct effects on stakeholders will be progressively introduced as these subordinate instruments (such as regulations, management plans, guidelines, accreditation systems and codes of practice) are developed and implemented. The overall intention is to provide greater clarity and certainty about obligations for land and water managers and industries. The instruments to do this will be developed in consultation with affected parties and before approval will be subject to the scrutiny of the SL Act. This will ensure that unreasonable regulatory burdens are not created and that regulations are proportional to the risks being managed.
The new legislation is intended to enable a flexible, efficient and effective response to current and future biosecurity threats from invasive plants and animals. Providing for a wider range of organisms to be addressed and for a more flexible suite of measures to be used, does not predetermine future government decisions. Not every measure that is enabled will necessarily be used. The appropriate level of intervention to manage particular invasive species or the risks to particular geographic areas or industries are policy decisions for the Minister and will not be predetermined by the new Act.