RILEY, Dr Sophie, Private Capacity

CHAIR: I welcome Dr Sophie Riley.

Dr Riley : I am here in a private capacity but I am a teacher at the University of Technology Sydney.

CHAIR: You have lodged submission 9. Would you like to make any amendments or additions to the submission.

Dr Riley : No.

CHAIR: There is a request from the media to film your part of today's proceedings. It is entirely up to you; if you are not comfortable we will decline the offer.

Dr Riley : That is fine.

CHAIR: I invite you to make a brief opening statement before we go to questions.

Dr Riley : Before I do, am I able to table a document I have prepared? This includes my opening statement and copies of certain sections from legislation and treaties, in case there are questions, to make it easier to follow.

CHAIR: Everyone is comfortable with that. That is fine. So that document is your opening statement?

Dr Riley : Not the whole lot; just the front page. My submission is very brief, mainly because I did not want to go over material that had already been included in other submissions. I focused on Australia's obligations at the international level and how they channel into the draft Biosecurity Bill. I focused on two points: the first was the definition, because there seemed to be some conflict there between what the biodiversity convention actually says and the material that was in the draft bill; and the second is a favourite chestnut of environmental lawyers, which is the precautionary approach, and the fact that that is not really dealt with in the draft bill. I understand why that may be the case, because of potential conflicts with the international trade law regime, but my queries point out that these are some of the issues, and that perhaps more consideration could be given to them.

Senator SIEWERT: I am not going to deal with the issues from the Invasive Species Council submission that you have already said you support. I want to go to specific issues you have raised here. Essentially, what you are saying is that agriculture dominates in the legislation, and the environment minister does not have the same powers. A number of other submissions have brought this up, and it is an issue I have some concerns about as well. Do you think one of the ways to fix that is to (a) ensure that the minister for the environment has some sort of equivalence in powers and (b) have a more independent commission?

Dr Riley : I think something independent is very important. Going back—I forget the exact year—there was a bill that Senator Bartlett introduced that was an amendment to the Environment Protection and Biodiversity Conservation Act that would have looked at invasive species. Part of that was to set up a separate body that looks at invasive species. That was rejected for a lot of reasons, mainly because of the conflict with trade. But I think the underlying concept that he was trying to put to the parliament was that we need some independent voice that looks at the environmental impacts of these species. So I think yes.

Senator SIEWERT: I think you run the argument very clearly here in terms of us being more focused on invasive species in agriculture and their impact on agriculture rather than on the environment. What specifically do you think will happen if that issue is not dealt with? Are you concerned that we will see things being introduced that do have an impact on the environment not being adequately assessed, or are the powers there to deal with it?

Dr Riley : I think there are difficulties first of all with the species being introduced if the environmental impacts are not taken into account, so that definitely is one issue. But then, if you look at the history of how Australia regulates invasive species—which, by the way, is pretty similar to what happens in countries such as the United States, where they also have a federal system of government—there is one system of government that lets them in, yet the operational issues are left with the states to deal with. Then that gets into another level of complexity, because they all have different rules and regulations. So you have one level of government letting them in and then another level of government that has to deal with them.

Senator SIEWERT: That is not necessarily then going to be addressed by just changing that power.

Dr Riley : No—absolutely. But for a start we need to make sure that we have strong border controls so that at least these species are not introduced to start with. You are quite right about that.

Senator SIEWERT: I wanted to address the issue around invasive versus alien?

Dr Riley : Yes, I will take you through that. If we are going to have a definition in a piece of legislation we want to make sure that it is as accurate as possible. Chapter 1 has a definition of an invasive pest. It says that it is:

an alien species (within the meaning of the biodiversity convention)

and that the biodiversity convention itself is further defined as the actual treaty that was entered into as amended et cetera.

If, though, we have a look at 1.2 on page 2

CHAIR: I feel like I am in one of your lectures, sorry! You caught me not turning the page quickly enough.

Dr Riley : Sorry! It is an occupational hazard!

First of all, article 2 of the biodiversity convention has a list of the definitions, and alien species is not defined in there. The closest that we get to a mention of it is in article 8(h) . It says that the parties, as far as possible, should prevent the introduction of, control or eradicate those alien species which threaten biodiversity. What they are referring to there is not a definition of an alien species, but they are getting closer to what is an invasive alien species. The actual definitions of alien and invasive come from another document, and that is set out at the top of page 3, paragraph 1.3. About 10 years after the biodiversity convention, the conference of the parties adopted this particular instrument. There is a footnote to that, and that is where these definitions come from. The problem is that the bill refers to the biodiversity convention itself for the definitions but the definitions are not found in there; they are found in a different instrument. I think that needs to be clarified.

Senator SIEWERT: I did want to come back and ask about something else to do with the environment, but your first recommendation is that the definitions be adopted similar to the guiding principles.

Dr Riley : I suspect the reason that the draftsperson referred to the convention itself was that if there were amendments then they thought it would incorporate them. In every day talk, you can refer to the CBD, the biodiversity convention, almost as the institution. So it might include the treaty and instruments at the conference that the parties have adopted; but, from the way that it has been defined, it is very clear that it is just the biodiversity convention itself, and that does not have such a definition.

Senator SIEWERT: It seems to me—and it may be because I have misread this—that we would also then need to double-check with those definitions and that we are using the right words in the right place in the legislation.

Dr Riley : Yes.

Senator SIEWERT: It seems to me that there is a bit of mixing up there as well, so we would need to go back and check it to make sure that we are using the proper word in the context.

Dr Riley : Yes, that is right.

Senator SIEWERT: You make comments on the environment basically being subservient to agriculture, but you do not then really make a recommendation around dealing with that.

Dr Riley : No, because that was dealt with in the Invasive Species Council. As the previous gentleman mentioned, an independent body to look at these is, I think, our prime starting point.

Senator SIEWERT: I want to make that clear, because you said that you are not going to go issues that the invasive council raised but you think it is important enough that the act should still be amended.

Dr Riley : That was also a recommendation of the Beale review. It was one of its prime recommendations.

Senator SIEWERT: We were just discussing that as well. I will go on to the precautionary principle. I said the other day that I feel like I am on QI when we go to this. Can you take us through your reasoning on that.

Dr Riley : Yes. This is something—

Senator BACK: Senator Siewert, if I may interrupt. Dr Riley, you have made the observation at point 3:

It should be noted that the term ‘precautionary approach’ is different from ‘precautionary principle’ …

In your answer, I would be keen for you, if you could, to pick up the difference between them.

Dr Riley : Okay. As a principle, the precautionary principle is something that should be applied in every situation just as an overarching concept, but in practice that probably does not work because it cannot apply in thin air. You still need a threshold of either actual or potential damage for it to apply. In practice, it operates as an approach. In other words, it would only operate where there was a threat of some harm and the scientific evidence was insufficient. So the difference is that, as a principle, it would apply to every type of decision, whereas, as an approach, it would apply only in certain circumstances. In practice that is what you have. Even if sometimes in legislation sections call it a principle, it actually operates as an approach. That is why I have given you some copies on page 5. In the Norway Nature Diversity Act is an example of the sort of definition you could have. It is called the precautionary principle but it actually operates as an approach, because it refers to possible significant damage. In other words, there is a threshold there; therefore, it is an approach rather than a principle. Does that answer the question?

Senator SIEWERT: When I read your submission I thought I had it, so I may just need to look at it again. How do we change the legislation? You are recommending that we change it to similar wording?

Dr Riley : It is a conundrum that I think legislators and regulators have been trying to work on in the context of biosecurity when it impacts trade. If we are looking at it just from an environmental point of view, it is very easy. You can do what the Norway act has done. You could even take from the Environment Protection and Biodiversity Conservation Act. There is a section in there that refers to ecologically sustainable development in the precautionary approach. That is very easy.

The difficulty, though, is that the biosecurity legislation also operates in the context of the international trade law regime and, in particular, the WTO. The difficulty there is that, if you start putting an environmental perception of the precautionary approach, you are going to run into conflict at the moment with the way the SPS Agreement works. The reason that you are going to run into conflict with that is that the WTO has already found that the precautionary approach is not a principle of customary international law and it is also not found in any of the WTO agreements. The closest you are going to get to it is article 5.7 in the SPS Agreement, which allows for temporary measures.

Senator HEFFERNAN: The WTO at the end of the day will deliver the lowest common denominator.

Dr Riley : Absolutely.

Senator HEFFERNAN: It is a bullshit process.

CHAIR: Sorry, Dr Riley. Senator Heffernan, we know you are passionate about these things. I would just ask that we may want to use different language. You and I can use that language in the hallway when we greet each other, but for the purposes of a public inquiry I do not think we have to be so colourful in our language.

Senator HEFFERNAN: I unreservedly withdraw. I would put in 'horse manure'.

CHAIR: Thank you. Dr Riley, where were you?

Senator SIEWERT: Going back to the WTO, I take it from your answer just then that even if we changed the definition we are still going to have problems because it is going to conflict with trade obligations.

Dr Riley : I have a little diagram on the back of the last page that shows how this works. Under article 5.7 the SPS agreement says that countries can have temporary measures where there is insufficient scientific evidence. By the same token, I think it is article 2.2 that prohibits countries from maintaining permanent measures without sufficient scientific evidence. The problem is that the notion of sufficiency is interpreted differently in those two articles. So, under article 2.2, a country needs both a sufficient volume and a sufficient degree of conclusiveness in the scientific evidence to maintain measures; whereas under article 5.7 if there is a sufficient volume, even if it is inconclusive, it has to go into the risk assessment process, but once it does that, because it is inclusive, you cannot use it to ground measures. The difficulty is that it puts you into a catch 22 situation and the upshot of that is that a country can have temporary measures and that would adhere to article 5.7. Australia has actually come reasonably close to doing that with the weed risk assessment. They came reasonably close to it, but that is only temporary. The problem there is that countries might challenge the sort of questions you are asking. They might challenge the fact that Australia has not bothered to update its information within a reasonable time to see whether the measures may be maintained.

The WTO did come out in the beef hormone case with comments along the lines of the precautionary approach of the New Zealand legislation we have on page 5 that countries need to adopt a cautious approach—whatever that might mean. They are quite happy to go along with that. It is probably beyond the scope of this committee, but at the end of the day the way that Australia and other countries can try to overcome this is to have the precautionary approach written into the international standards for risk assessment.

Senator SIEWERT: Given the conflict and given that as much as this committee and Senator Heffernan would like to rewrite some of the WTO processes, we are not going to be able to fix it with the ledge. We can fix the ledge but that is not going to fix the problem.

Dr Riley : You could probably get away with what New Zealand has done, because that comes close to what the WTO has actually said. As much as I would love for the Norway one to be introduced—

Senator SIEWERT: But coming from the perspective of wanting to take a genuine precautionary approach, is that to a certain extent linking us to the WTO, which we do not necessarily think is satisfactory?

Dr Riley : That is true.

Senator SIEWERT: We would be better going with a more thorough definition and work to get the governing principles—

Dr Riley : That would be the best way, absolutely. You see, the WTO do not set the standards; they have nominated standard-setting bodies. There is the Plant Protection Convention and the OIE. So they would be the ones to try to influence to adopt standards that come close to the environmental idea.

ACTING CHAIR ( Senator Heffernan ): You are not going to pretend that the OIE does it, though, are you?

Dr Riley : No, but there is potential there to influence them.

Senator SIEWERT: The point is: if we all agreed, why put in the legislation what we all consider to be a substandard approach? Why not fix the legislation and then try and fix those things?

Dr Riley : That would absolutely be the best way of doing it.

Senator COLBECK: I want to go on from where Senator Siewert started. You quite correctly point out in your submission that not all alien species become invasive. So fixing the definitions around that particular topic helps to mitigate the potential issues that might crop up around WTO requirements by having that clarified.

Dr Riley : That is right.

Senator COLBECK: And then you can apply the principles that you are talking about to the potentially invasive species that are considered under the new biosecurity regime and have the principles that you are talking about applied to the environmental issues around those particular species.

Dr Riley : Yes. It is also really important for another reason I raised in the submission, and that is that there seems to be this growing body of literature from the social sciences that is linking the regulation of invasive alien species to nativism and xenophobia. The writers are coming mainly from Europe, but when I read these I find that they are totally confusing the concept of an alien species with an invasive alien. That is another reason I think it is really important, especially in new legislation, to get it right as far as we can.

Senator COLBECK: I think the concept that you are putting to us in that context is quite clear, and I think it does provide the capacity to clarify some of the other trade issues that might apply if you clarify those two definitions, because there is a distinct difference. There may be significant benefits from an alien species that does not have invasive capacity. I think you are right, too, that there is a lot of discussion now about native versus alien, and that becomes a conversation of good versus bad without the consideration of what the good might be in the alien.

Dr Riley : Yes.

Senator COLBECK: That is fine.

Senator BACK: I have one question, if I may. I found your submission very interesting, Dr Riley. Do you see in your reading of the legislation that is before us any improvement in how we would consider the importation of an alien species? Take a hypothetical: cane toads or cactoblastis. Can you tell me whether this new legislation, as it appears before us, improves the process by which we would consider the importation of a species such as either or both of those?

Dr Riley : That is difficult to answer. The short answer to that would be a qualified yes, because you now have environmental concerns listed in the objectives. But, if you are looking at the operational parts of how the biosecurity import risk analysis will work, I cannot answer that until I see what is going to be taken into account.

Senator BACK: But you did earlier an earlier question—I think it was from Senator Siewert. You raised that tension of one arm or one level of government doing the approval and other levels of government being responsible for operations. How do you believe this committee could make recommendations that would improve that process?

Dr Riley : Oh, I see. It depends on the actual procedures that are in place for how the import risk analysis will work. In other words, I know that under the present system Biosecurity Australia does look at the environmental impacts, but I think that needs to be fleshed out substantially more. Just to give you an example, the last import risk analysis I had a look at—because they are so long—was for the bananas from the Philippines. That was quite a while ago, and there were so many of them. But when I was looking through that—I think it was about the second or third one—there was a whole section in there that was devoted to the potential risks to Australia of importing little frogs and spiders and things that could just hide amongst the bananas, as well as the diseases. And somehow by the time we got to the last report these had just disappeared.

ACTING CHAIR: Was that because the minister for agriculture was the biggest banana producer? It is a serious conflict of interest; it is called graft.

Dr Riley : But you would think he would want to protect his plantations here then.

ACTING CHAIR: No, the biggest banana grower over there, not here.

Dr Riley : Oh. I cannot comment on that.

ACTING CHAIR: I can, and it is bloody red hot!

Dr Riley : It just amazes me because all of a sudden it became an operational procedure for AQIS. Especially if we are dealing with developing countries, one of the problems is that they themselves will not know what species they have got that are likely to come into Australia. So it is also what the Nairn report said, the early report on quarantine: we have got to push the quarantine border back. If we are looking at dealing with developing countries, somehow there needs to be a way that the import risk analyses takes into account what they do not know as well. This is where I think the precautionary principle comes into operation, because that operates on lack of scientific knowledge. If we have got a developing country that does not have the same degree of knowledge as Australia about what species and organisms they find within their jurisdiction, how can we do any risk analysis as to what is likely to be imported into Australia if they themselves do not know what they have got.

ACTING CHAIR: One of the greatest complexities in that is not just the vagaries of the science but the lowering of the bar, because the WTO is driven by trade. Now, as Senator Nash know, shires in New South Wales do not have the capacity to spray St John's wort. They say, 'We haven't got the budget. It's an endemic weed. Too bad!' It is the same thing. But I absolutely do not know how we are going to overcome the fact that you can get a signature on any piece of paper anywhere you like in Asia if you pay them enough money. That is actually a fact. They do not like to talk about it. Senator back would know that. That overcomes all these protocols; they just buy their way through the system.

Senator BACK: The other question was a follow on, but science is not your background so I do not want to challenge you on that. Thank you, that was most interesting.