LAW IS ORDER AND GOOD LAW IS GOOD

LAW IS ORDER, AND GOOD LAW IS GOOD ORDER: THE ROLE OF GOVERNANCE IN THE REGULATION OF INVASIVE ALIEN SPECIES Dr Sophie Riley University of Technology Sydney

1. WHAT ARE INVASIVE ALIEN SPECIES (IAS)? 2. GOVERNANCE AND THE INTERNATIONAL IAS REGIME 3. GOVERNANCE OF IAS IN AUSTRALIA FEDERAL (COOPERATIVE FEDERALISM) 4. BENEFITS / GAPS IN THE REGIME

1. WHAT ARE INVASIVE ALIEN SPECIES (IAS)? Invasive alien species are alien species that threaten ecosystems, habitats or other species. The IUCN - ‘one of the major threats to biological diversity’; Conference of the Parties to the CBD has noted that the deleterious impacts of IAS are a significant cross-cutting issue for consideration by members.

2. GOVERNANCE AND THE INTERNATIONAL IAS REGIME with respect to the environment, governance has been defined as the resolution of environmental conflicts through the establishment, reaffirmation or change of institutional arrangements, which may either facilitate, or limit, the use of environmental resources

Concept of governance has many nuances. However, significant features of governance include: the resolution of conflicts through ‘collective decisionmaking’; and the role of institutions.

International level, the governance of IAS comprises a diverse range of mechanisms: Treaties such as the CBD, UN Law of the Sea, plant and animal protection treaties, international trade instruments (WTO) Non-binding guiding principles, guidelines and codes of conduct. Activities of international organizations such as the International Union for the Conservation of Nature, and the Global Invasive Species Programme.

Article 8(h) of the CBD specifies that states should prevent the introduction of or control or eradicate those alien species that threaten ecosystems, habitats or species’ CBD Guiding Principles advocate a three-tiered approach of prevention, eradication and control.

Shine, Williams and Gundling have pointed out that there are primarily three ways of doing so. ‘unitary legislative framework’ co-ordinating body backed by legislative might co-ordinating body to harmonize measures, without authority to impose harmonization of processes legally.

3. AUSTRALIA’S FEDERAL SYSTEM Commonwealth of Australia Constitution Act 1900 (Imp). law-making powers are shared between the Federal, State and Territory parliaments. No specific environmental power has been given to the Federal government

Commonwealth v Tasmania (Tasmanian Dam case) use of external affairs power 51(xxxix) of the Constitution ‘authorizes a law which gives effect to an obligation imposed on Australia by a bona fide international convention or treaty to which Australia is a party’

Yet having a legal power is not decisive. Governance considerations include: how lines of authority should be drawn; which level of government should formulate policy, design rules and regulations; and how regimes should be enforced. In Australia, the matter is compounded by the fact that environmental matters are often tied to resource management, which historically has been a matter for determination by State parliaments.

Governance structure selected was ‘co-operative federalism’. a process whereby the Commonwealth and the States exercise their powers in a way that achieves national outcomes.

FEDERAL GOVERNMENT COAG MINISTERIAL COUNCILS INTERGOVERNMENTAL AGREEMENTS NATIONAL STRATEGIES AND COMMITTEES LOCAL GOVERNMENT, REGIONAL GOVERNANCE

5. COOPERATIVE FEDERALISM AND INVASIVE ALIEN SPECIES Legislation – largely focuses on species that impact upon primary production Main piece of legislation that protects biodiversity is the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), It is weak with its dealing of IAS. eg there no special division that deals holistically with IAS.

There is no Ministerial Council which is directly responsible for IAS, although Ministerial Councils such as Natural Resources Council would be concerned with IAS No Intergovernmental Agreement has been negotiated that directly targets IAS, at least in an overarching manner, Draft agreement which is under negotiation – the Intergovernmental Agreement for improving Australia’s Biosecurity System for Primary Production and the Environment (Aus. BIOSEC), (the Intergovernmental Agreement for Improving Biosecurity).

Important strategies and plans that relate to IAS include the Australian Weeds Strategy – A National Strategy for Weed Management in Australia (Australian Weeds Strategy), and the Australian Pest Animal Strategy – A National Strategy for the Management of Vertebrate Pest Animals in Australia (Australian Pest Animal Strategy). Australian Emergency Marine Pest Plan,

4. BENEFITS / GAPS IN THE REGIME Improved capacity of integrating environmental matters into social and economic issues at the State and Territory levels; enhanced information sharing; and enhanced ‘administration of governmental powers’. Potentially, can strengthen institutional links between international instruments and domestic implementation of measures, thus enhancing Australia’s compliance of international law.

However there are significant gaps in the regime protection of biodiversity from IAS has developed in a fragmented way. National strategies do not cover invertebrates such as insects. The latter species are managed at the State and Territory levels – unless designated a key threatening process under Federal legislation. Yet not all Australian States afford a legislative base for listing of threatening processes.

Cooperative federalism based on co-operative rather than coordinated approaches. Based on ‘efficient discharge’ of Federal government obligations. Often = lowest common denominator

Existing strategies tend largely to focus on economically important IAS such as rabbits and foxes, or on species that have already become invasive and considered to be a national problem. Reflects short-term approach on how to allocate funding, and may not be costeffective in long-term. (This needs preventative measures - identifying, monitoring and eradicating of potential IAS. )

These deficiencies mean that, Australia is not fulfilling its international obligations as well as it could. Improvements can be made with respect to coordination of measures and enhancing institutional arrangements.

Means of enhancing the response to IAS can include: Adopting a national strategy for dealing with IAS Establishing an advisory body/committee