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Wednesday, 5 September 1984
Page: 442

Senator GARETH EVANS (Attorney-General)(10.16) —I move:

That the Bill be now read a second time.

I seek leave, Mr President, to incorporate the second reading speech in Hansard.

Leave granted.

The speech read as follows-

The purpose of this Bill is to establish procedures for assessing and, where appropriate, authorising biological control programs in Australia. Complementary legislation will be passed by the State and Northern Territory Parliaments to establish a uniform and equitable system, applying throughout Australia, which will ensure that biological control programs that have been identified as being in the public interest can proceed in accordance with law and without interruption by litigation.

The need for the Bill was recognised in June 1983, when an injunction was obtained which prevented the release of insects to control Echium, a plant commonly known as Paterson's Curse or Salvation Jane. Echium has long been perceived as a noxious weed in Southern-Eastern Australia and is commonly declared as such. Its control by biological means was considered both desirable and possible by the agencies which have responsibility for these matters, and whose integrity and expertise had never before been questioned.

Two beekeepers and two graziers who believed the plant had beneficial qualities , obtained the injunction on the grounds of the common law of private nuisance, which is concerned more with the rights of the individual than the question of public interest.

It became clear that there were two related problems. First, there was no provision in existing legislation which authorised the release of control agents , such as insects or rusts, into the environment. Second, it was clear that there was no equitable means of resolving a conflict of interest concerning biological control programs with a view to establishing public benefit. In developing the legislation to resolve the legal status of biological control, it has been necessary to address both of these problems.

Before I advert to specific features of the Bill, I would like to make a few general points about biological control and the purpose of the Bill.

Biological control has had a long and honourable history in Australia. In addition to its well known successes in controlling rabbits and prickly pear, biological control has also helped to account for numerous agricultural pests, for environmentally unacceptable plants such as water weeds and for vectors of disease such as mosquitos.

The Bill will not affect the existing basic scientific, technical or safety procedures and standards applying to biological control. Decisions concerning proposed biological control programs will continue to observe these fully. The Bill does not in any way reduce the effect of relevant Acts, which include the Quarantine Act, the Environment Protection (Impact of Proposals) Act and the Wildlife Protection (Regulation of Exports and Imports) Act. The Bill is not directed against any particular weed or pest, but rather provides the means of deciding whether or not the control of individual weeds or pests would be in the public interest. There is no requirement for all proposed biological control programs to be submitted for consideration in terms of the Bill. The great majority are not a potential source of controversy and agencies may prefer to proceed independently. However, where an agency wishes to pursue an independent course of action it will remain subject to existing legislation, standards and procedures and, of course, subject to litigation on a common law basis.

This Bill will be complemented by legislation in the States and the Northern Territory. The targets of biological control and the agents which control the targets are not familiar with political boundaries. As the majority of biological control programs are directed at agricultural pests or weeds, the Bill provides that the Australian Agricultural Council will have primary responsibility for taking the actions and making the decisions referred to in the Bill. Where appropriate, the Council will seek the advice and assistance of relevant bodies, such as the Australian Forestry Council and the Council of Nature Conservation Ministers. The proposed role of the Australian Agricultural Council is appropriate in that it represents all States, is concerned with agriculture and is the vehicle by which most biological control proposals are presently considered. In order to create a legal entity for the purposes of the Act, there is provision for the establishment of a Biological Control Authority in the A.C.T. Complementary legislation will establish similar Authorities in the States and the Northern Territory. At the first meeting of the AAC each year the Commonwealth Minister in consultation with State Ministers shall designate the Commonwealth Minister, or one of the State Ministers as the Australia-wide Biological Control Authority.

The provisions of the Bill may be broken down into a few essential elements. First, public opinion concerning a proposed biological activity will be widely canvassed. Second, depending on the nature of any public comment, an inquiry may be held. Finally, based on the information available, including the report of a public inquiry in the event of one being held, the program may be declared in terms of the Act and biological control agents may then be released. A declared program will protect those authorised to conduct the program from legal action for damages other than in specified circumstances, and will preclude the opportunity to halt the program by means of a common law injunction. However, as with other areas of Government decision making, judgments relating to particular biological control programs could result in gains and losses to various groups in the community. Losses could be experienced by the honey industry for instance , if a decision were made to proceed with a control program against Echium. While it is desirable that the greater public benefit take precedence, it is also necessary to recognise the concerns of those adversely affected. Thus the Bill allows for fair and equitable decision making processes which provide the opportunity for the question of assistance to those claiming to be adversely affected to be addressed.

Turning to the procedural aspects, the Bill obliges all proposed targets to be advertised but there is a discretion as to whether the proposed agents should be advertised. The target is a weed or a pest and there is no difficulty for a lay member of the public to express a view as to whether they perceive the target to be undesirable or beneficial. Once the target is declared, the basis on which an agent, such as an insect capable of controlling the target, is selected is essentially technical, is subject to the requirements of the Quarantine Act and is less amenable to judgment by lay persons. Where the agent has been deemed safe in terms of the Quarantine Act there are grounds for assuming that a public inquiry is unnecessary. Nevertheless an inquiry as to the desirability of a proposed agent still remains an option under this Bill.

The Bill provides that a target must have been declared as such before agents to control that target can be declared. However the Bill also allows the nomination and resolution of proposed targets and their respective agents, including public hearings, to proceed simultaneously.

The basis of, and options for, public inquiry are essentially the same for target and agent proposals. The Biological Control Authority, after considering the information available and consulting Council, may order an inquiry if it considers persons or the environment will be adversely affected. The Bill provides for different forms of inquiry, which reflects the fact that biological control may have different social, economic or environmental consequences.

Declaration of a target or agent is the final step in the process of consultation and public decision making for which this Bill provides. Declaration is made where the Authority is satisfied that control of a target would be for the public benefit. Once a target and the relevant agent or agents have been declared, the agents may be released subject to any conditions specified.

As I have already indicated, the Bill provides that no legal proceedings shall be instituted where the release of agents is in accordance with the Act. However , where the release of agents has damaging effects on organisms other than the target organism, legal action can be taken to recover damages if these were not taken into account when making a decision to authorise the release of the agent, or if the damages could reasonably have been foreseen at the time the agent was released.

In clearly specified emergency conditions, the Bill provides that the Authority may declare target or agent organisms as such without first observing the requirements concerning public comment or inquiry which I have outlined. Such emergencies are rare but, as the recent outbreak of lucerne aphid demonstrated, the relevant agencies need to be able to respond quickly to prevent what would otherwise involve considerable economic loss and disruption.

There are a number of existing biological control programs in Australia and these will be declared in terms of the Bill. This simply reflects the fact that the existence of a successful biological control program is a fact of life. In the absence of any previous legal challenge it must be assumed that they are sanctioned by the public. Nevertheless, the Bill provides that any developments in existing programs, such as the introduction of a new sort of biological control agent, may be subject to its provisions.

There are several provisions in the Bill which enable the Commonwealth Legislation and the complementary State and Northern Territory legislation to operate efficiently. These are directed at ensuring that where all the provisions of the Commonwealth Act have been fulfilled, a declaration in terms of that Act applies in all the States and the Northern Territory. This avoids having to duplicate applications, advertisements and inquiries.

It is not possible to quantify the financial impact of the Bill accurately. Effective biological control is accepted as a highly cost-effective means of regulating weeds and pests and has the capacity to save millions of dollars for rural industries. Direct costs are associated with the cost of advertisement and public inquiries, but the frequency and nature of these costs will largely be determined by events that arise on an irregular basis. If past experience is to be used as a guide, biological control very rarely causes controversy and it could be expected that public inquiries would therefore also be rare. However, provision for public comment may lead to increased awareness of biological control programs and hence to more inquiries. The Bill institutes a number of additional administrative requirements. These may involve indirect costs to various existing committees concerned with biological control. Direct costs to the Commonwealth for salaries and administration will be less than $100,000 per annum.

There has been considerable pressure, from the rural sector in particular, to urgently resolve the legal status of biological control. While most of this concern relates to the biological control of Echium, the legislation has been developed to equitably resolve conflict concerning any biological control program on the basis of public benefit. I draw the attention of Honourable Senators to recent events in Victoria. Biological control of blackberry in that State, in New South Wales and in Tasmania has long been a subject of controversy but there was no means of resolving that controversy. In the end, someone, possibly illegally, introduced a rust capable of controlling blackberry. This action may not only have contravened the Quarantine Act, but also was done without the necessary safeguards to protect other plant species.

This Bill does not seek to meddle with existing scientific or quarantine measures, or to impose priorities. It does provide what should be a publicly acceptable and equitable means of determining whether a proposed biological control program is in the public interest. Once public benefit is established, then a program can proceed in the full knowledge that it will benefit the community without imposing unacceptable consequences on the economy or the environment. I commend this Bill to the Senate.

Debate (on motion by Senator Reid) adjourned.