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Tuesday, 11 September 1984
Page: 829

Senator MACKLIN(9.43) —The Biological Control Bill, which we are discussing tonight, is an important Bill. It is a Commonwealth Bill in respect of which the various States will pass complementary legislation. It is a Bill which has had an interesting history and possibly it will have an even more interesting history in its operation. It is fair to say that there is general agreement on the need for a biological control Bill. However, I do not believe that this particular Bill is necessarily the best way to do the task that needs to be done. Indeed, I think there are a number of problems with the Bill. I will discuss the specific problems in the Committee stage. On behalf of the Australian Democrats I have circulated 19 amendments which seek to deal with basically technical matters. In my speech at the second reading stage I will restrict myself to talking about the policy basis of this Bill.

The necessity for a biological control Bill has been felt for a considerable time. Undoubtedly, a country which covers a continent has many advantages that few other countries in the world enjoy. In terms of biological control we have a natural boundary, yet in this area we have had problems-as we have had in many other areas-by virtue of the fact that we are a federation. Biological control can only take place in Australia, except in terms of highly specific items, if we have agreement between the States as to how to operate it and on the method we will use. It is useful to look at the item that Senator Scott raised-the echium affair-because that gives us a pretty clear indication of the problems that are likely to occur with this Bill. I shall rehearse some of the history of that affair. The weed we are talking about is known as salvation Jane, Paterson' s curse, or a variety of other names, depending on what State you come from. The affair goes back to the mid-1960s when there was conflicting opinion between councils, growers and others, particularly in Victoria, about the value of salvation Jane. The Standing Committee on Agricultural Weeds in 1973 recommended that the Commonwealth Scientific and Industrial Research Organisation should approach the Departments of Agriculture in New South Wales, South Australia and Victoria to seek their opinion about the biological control of echium. Very little occurred for a while and indeed it was not until almost 1978 when the Federal Council of Australian Apiarists' Associations learned that there was to be a proposed control program of that weed. The Australian Agricultural Council recommended in 1978 that that biological control should not go ahead. That particular recommendation is illustrative of the federal nature of Australia. While some of the States were in favour, others were opposed, and without general agreement in this area very little could be done.

Following that meeting considerable political pressure was brought to bear to mount a biological control program and the Commonwealth Scientific and Industrial Research Organisation asked the Standing Committee of the Agricultural Council, that is, the Standing Committee on Agriculture, to convene a representative committee to inquire into the control of echium and to make the recommendation to the Australian Agricultural Council at its meeting in the following year. This resulted in 1979 in the Agricultural Council reversing its earlier decision and agreeing to go ahead with the biological control program as it had been set out. At that particular time the South Australian Minister of Agriculture said that his Government would prepare a cost-benefit study on echium on the understanding that the program would be held over until the next meeting of the Agricultural Council in January 1980. The South Australian government of the day in the meantime changed its political complexion and the Agricultural Council confirmed that the biological control program would go ahead.

Later that year graziers and bee keepers considered taking legal action on this matter and indeed proceedings were started in the High Court of Australia in July of that year for an injunction to prevent the CSIRO from importing specific insects from Europe, for a control program, from releasing the insects in Australia and to have existing stocks of those insects destroyed. An interim injunction was granted to that effect by Mr Justice Stephen in the High Court of Australia. The case from that point on involves us with this particular Bill. Legal proceedings started in the High Court but were then transferred to the South Australian Supreme Court exercising Federal jurisdiction because the issues in terms of the legal protagonists in this debate were basically in South Australia. The Supreme Court of South Australia injunction continued until a trial could be held. The trial began in about mid-1982. Once the hearing had begun the CSIRO agreed to a proposal which had been put forward by apiarists concerned with the setting up of a public inquiry before a third-person tribunal before anyone went ahead with the biological control program.

In September 1982 a very interesting meeting took place here in Canberra which I think bears directly on this Bill. Approaches were made by the CSIRO to the plaintiffs in the case to consider modifying the agreement by substituting an Industries Assistance Commission tribunal for the earlier agreed three-person independent tribunal. The plaintiffs agreed to consider this proposal. In fact, a meeting was held in Canberra between officers of the Attorney-General's Department, the IAC, the plaintiffs, representatives of the FCAAA and the CSIRO to discuss the very suitability of the IAC being the body to serve as a tribunal . After extremely lengthy discussions it was agreed by all parties that the IAC tribunal was not a suitable alternative mechanism for the determination of such a wide social conflict as the echium issue presented. Indeed the IAC suggested it was inappropriate for it to undertake this task and that its expertise lay in other areas. As a consequence of the failure of that suggestion the parties endeavoured to negotiate and a satisfactory resolution of the court proceedings culminated in a comprehensive agreement which was signed on 21 June 1983. Indeed , the CSIRO, in agreeing to that permanent injunction against the importation and use of insects for the biological control of echium, agreed to pay the plaintiff $93,000. And there the case rested until this Bill was introduced.

The Bill in fact takes away common law rights and substitutes a process of public inquiry. I think that the notion of public inquiry is an excellent one. In these types of areas a court hearing is not necessarily the best way to proceed. However, it still seems to us that there are continuing rights, particularly in the case that I have just outlined, which this Bill, at least on some readings, seeks to do away with. The Bill addresses itself to continuing cases. I do not want to have the lawyers rushing in here, but it seems that there is still some doubt as to whether the continuing case-that is, the permanent injunction-would come under this Bill. I have been assured by some that it does not and by others that it may. But in any case, I believe it is important not to give a lever in possible resuscitation of that injunction even if, as the Minister for Primary Industry (Mr Kerin) said in the other place, this item would be submitted to a review tribunal.

I think it is important that we take some care with this Bill. The history of biological control in Australia has not been a terribly happy one and I think we need to take great care to make sure that all parties who could possibly be affected are involved in the public process. In saying how careful we need to be , by way of illustration I would like to quote from the South Australian Liberal Party policy on echium. I refer to a response from the Liberal shadow Minister for Agriculture in the South Australian Parliament. He said:

. . . the Liberal Party policy on the control of Salvation Jane is to support the control of Salvation Jane by the release of biological agents proven by the CSIRO.

(1) to be effective in the wetter, colder climates of Australia (not so effective in the drier, hot regions).

(2) to be no threat to other plant varieties.

Of course, that looks at only one aspect of this matter. I sought some comments from the Division of Entomology of the CSIRO, particularly in relation to the claim that I know has been made in a number of discussions about the possible effectiveness of biological agents in wetter climates and hotter, drier climates . I received the following reply.

(1) The area in France where agents for control of Salvation Jane (Paterson's Curse) will be obtained has a climate similar to the moister parts of the weed's range in Australia. It is possible that these insects would be less well adapted to drier or hotter regions. However climate is not the only factor determining whether an organism introduced to a new environment will survive and be effective as a control agent. This can only be known after the organism has been released and its behaviour monitored in different localities over a period of time.

(2) Thorough testing of the agents (approved by plant quarantine) has shown that they are highly specific to Paterson's Curse and would, at most, cause minor damage to a few very closely related plants such as borage and comfrey.

I find interesting the proposition that care must be exercised in making claims in relation to particular organisms. I think that we need to gather together in any of the inquiries which are likely to be held the maximum possible amount of information and input. It is not sufficient for uninformed discussion to take place. I think that the Bill usefully points out how this might be achieved. However, I am not at all sure that the various mechanisms that the Bill contains will achieve that result. Indeed, in the minds of a number of people there is still doubt as to whether or not this Bill will allow a fair hearing to all the people and interests who are likely to be involved. Hence I will be proposing some amendments in the Committee stage which I believe will strengthen the representation of those interests so that they can be assured, firstly, that they will be able to appear before the inquiry; secondly, that their evidence will be taken into account; and, thirdly, that the possibility of review will exist in the various areas that are involved in the review process.

The Bill is odd in a number of ways because the various clauses do not seem to mesh very well at all. Some clauses are almost identical and one would have thought that identical propositions could have been employed, but they have not been so employed. For example, I refer to clause 17 and clause 26 which involve the notice of proposed target organisms and the notice of proposed agent organisms. Quite different advertising propositions are put forward. I can see no relevant reason why that ought to be so. Indeed, it would be useful to use similar propositions for notification. Clause 40 concerns the notification of inquiries and again I think that if we are to have an inquiry there ought to be an obligation upon the Commission not just simply to put it in the Commonwealth of Australia Gazette. I know that that is a widely read journal. It is pored over by a number of people in this place. However its popularity compared with that of other magazines and journals in Australia is pretty small. Hence it is important that we recognise the means of communication in Australia and that we make use of our major newspapers to alert people that we are about to undertake an inquiry in an area in which they may be concerned. Those types of propositions are minor but I hope we can do something in relation to them.

More importantly, it is of concern that the review mechanism will necessarily be a costly operation and care must be taken, if certain interests are to be enhanced-and undoubtedly the release of many organisms will be extremely useful for Australia's agriculture-that in the promotion of those interests other interests are not damaged. If it appears that they may be damaged we need to make sure that they are fully represented, that their views are taken fully into account and that the mechanisms the Bill provides for, such as compensation, are put forward.

Clause 50 of the Bill says that a witness summoned under the Act to appear will be entitled to be paid allowances. That is an important provision and it gives effect to the principle that witnesses that various groups feel ought to be called can have the chance of appearing. I will propose an amendment whereby people who make submissions have the right to be called-if not themselves, then their nominees-and if the Commission decides that it does not wish to call such people-of course there are plenty of perfectly acceptable reasons why it may not wish to do so-there would be the possibility of review. In matters dealing with many of the biological agents which are to be released we will necessarily be calling upon experts from overseas. Hence costs could be involved in bringing overseas specialists to Australia for an inquiry.

Senator Watson —That is included in the safeguards.

Senator MACKLIN —That is not included in the safeguards in the Bill.

Senator Watson —It is part of the procedure.

Senator MACKLIN —I am sorry, Senator, it is not part of the procedure at the moment. At the moment the Commission and the Commonwealth Biological Control Authority have total discretion in relation to the witnesses who appear, and that is unreviewable. It is important for a number of reasons that the Senate makes sure that all witnesses are protected. The Australian Democrats will support the Bill. I believe that when the concurrent legislation is passed in the various States in terms similar to this Bill we will have a very useful mechanism for dealing with a very important matter. While we may be enthusiastic about that taking place, it is still important to make sure that we learn a little from the history of what has occurred, that we learn that the conflicting interests of various groups are not items of simple resolution. Indeed, the case I have outlined indicates the length to which people will go to protect their interests, as they see them, and to protect their particular industries. While it may be nice to think that one particular item will not affect an industry, it happens to be the case that it could well be that the interests of certain rural industries are diametrically opposed.

If that is the case, the inquiry and review mechanisms, and the possible appeals from those review mechanisms, made on either a judicial basis or through Federal courts, have to be as clear and as precise as we are able to get them. I do not believe that it is in the interests of this country to go back through that type of legal history that has arisen in relation to echium. I believe-I do not know whether anybody else does-that it would be a singular waste of energy to go through that type of exercise. Hence it is worth while listening to the proposition of people who have had experience of this and who can bring forward some considerable knowledge in order to make sure that what we are putting in place at least fulfils the criteria about which they are concerned. We do not necessarily have the foresight to overcome all of the problems that may occur in the future in this area but at least let us overcome the problems that have occurred in the past.

The Australian Agricultural Council, in its deliberations on this matter and in its agreement to get complementary legislation, has taken us a long way. I hope that the Commonwealth, in the exercise of its powers in the Australian Capital Territory, will put into place a mechanism which clearly operates in the interests of the citizens of this country and does not seek a priori to distinguish in favour of any particular groups. I notice that the Minister for Primary Industry has been exceptionally careful in his statements to point out that, while he personally has supported one particular side of the salvation Jane debate, for example, this Bill provides a mechanism which goes across this area in its totality. I have referred to that item only because I believe it gives us at least a hold on what has occurred in Australia. It enables us to understand that while the release of these organisms may be in the interests of some groups it may be detrimental to others. In trying to adjudicate between the economic interests of various groups in the primary industry area, I believe it is important for us to make sure that we dot all the i's and cross all the t's with this Bill. I do not think that is the case at the moment. I hope that the Senate, in its deliberations at the Committee stage, will make sure that that occurs.