Closing Australia's Quarantine Loophole to New Weeds

Closing Australia’s Quarantine Loophole to New Weeds

WWF-Australia Issues Paper

A Report by Andreas Glanznig

WWF-Australia

January 2005 WWF is one of the world's largest and most experienced independent conservation organizations, with almost 5 million supporters and a global network active in more than 90 countries.

WWF-Australia's mission is to conserve biodiversity in Australia and the Oceania Region. With the help of more than 50,000 supporters across Australia, we are currently working on 180 projects across the region, employing more than 80 people, and raising and investing around $10 million annually in conservation activities.

ISBN 1 875941 81 9

Author: Andreas Glanznig, Biodiversity Policy Manager, WWF-Australia

WWF-Australia Head Office Level 13, 235 Jones St Ultimo NSW 2007 Tel: +612 9281 5515 Fax: +612 9281 1060 www.wwf.org.au

Published in January 2005 by WWF-Australia. Any reproduction in full or part of this publication must mention the title and credit the above mentioned publisher as the copyright owner.

First published 2005

For bibliographic purposes this paper should be cited as:

Glanznig, A. 2005. Closing Australia’s Quarantine Loophole to New Weeds. WWF-Australia, Sydney.

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For copies of this paper, please contact us on [email protected] or call (02) 9281 5515

World Wide Fund for Nature ABN: 57 001 594 074

Acknowledgements

Permission to use a range of Weeds CRC information in this paper is acknowledged.

Permission to use the bear skin fescue image of The Weekly Times is acknowledged.

2 Closing Australia’s Quarantine Loophole to New Weeds – A WWF-Australia Issues Paper Contents

Introduction 4

Background and Issues 4 A Policy of Prevention Outline of Quarantine Legislation and Procedures Nature and Extent of the Quarantine Loophole Invasion Pathway Risks Associated with the Quarantine Loophole Invasion Pathway Selected Stakeholder Positions

The Way Forward 13 WWF-Australia 3 Step Plan Compliance with World Trade Organisation Instruments New Developments in the Australian Government Position

Conclusion 16

References 17

Appendix 1: The 25 Permitted Genera Containing Some of the Most 19 Serious Weeds

Appendix 2: Key WTO and IPPC Provisions With Respect to the 21 Proposed Elimination of Genera from Australia’s Existing Permitted List

Boxes

1 Import of known weed through loophole: the example of Bear-skin 8 fescue 2 The case of kochia (Bassia scoparia)11 3 The case of Mexican feather grass (Nassella tenuissima)11

Figures

1 AQIS procedure followed for importation of non-native plants into Australia 5 2 Potential distribution of Festuca gautieri as determined by ‘Climate’ 9 3 Bear skin fescue on sale in a Victorian wholesale nursery (Nov. 2004) 9 4 Change in the rate of detection of quarantine (prohibited) weeds after 10 exempt genera removed

Tables

1 List of WONS nominees and the number of same genus weedy species 7 on the AQIS Schedule 5 Permitted List that are not yet present in Australia

Closing Australia’s Quarantine Loophole to New Weeds – A WWF-Australia Issues Paper 3 Introduction

The purpose of this paper is to provide an overview of the quarantine law loophole issue that currently permits the legal importation of over 125,000 plant species – nearly half of all plant species on Earth – with no weed risk assessment. This includes at least 6,420 weeds that are currently not present in Australia, comprising many serious agricultural and environmental weeds.

Action to remove the risk associated with this invasion pathway is the single most cost- effective intervention that the Australian Government can take to prevent new weed invasions.

The paper outlines the current national and Australian Government policy in relation to import of plant species into Australia, identifies the quarantine legislation and procedures in place to implement this policy, summarises the nature and extent of the quarantine law loophole in relation to import of new plant species, describes the risks and potential impacts associated with this loophole, and finally proposes a way forward and compares it to new developments in the Australian Government position.

It synthesises a range of recent information on the quarantine law loophole issue, and includes substantive excerpts from the following documents: Spafford-Jacob, Randall and Lloyd (2004), Panetta (2005), McFadyen (2005), Martin (2005b, 2005b) and Jenkins (2005).

Background

A Policy of Prevention

The Australian, State and Territory governments have long recognised the importance of preventing new weed problems. In 1997 the National Weed Strategy was adopted after an agreement in 1991 between Commonwealth, State and Territory ministers that such a plan was necessary to “reduce the impact of weeds on the sustainability of Australia’s productive capacity and natural ecosystems” (Agriculture and Resource Management Council of Australia and New Zealand [ARMCANZ] et al., 1999). Revised in 1999, the National Weed Strategy (ARMCANZ et al, 1999) recognises that “prevention and early intervention are the most cost effective techniques that can be deployed against weeds.” Consequently, the first goal is to prevent the development of new weed problems, which includes an objective (1.1) to prevent the introduction of new plant species with weed potential by strengthening import entry protocols for assessing all new plant imports.

The agreed timetable for completion of actions to achieve this National Weed Strategy objective was set out in the National Objectives and Targets for Biodiversity Conservation, 2001-2005 (Commonwealth of Australia, 2001).

Target 4.1.1: By 2001, the import of all new live organisms is subject to a risk-based assessment process that identifies the conditions necessary to minimise threats to the environment. Target 4.1.2: By 2001, no new non-native species are deliberately introduced into Australia unless assessed as being of low risk to the environment (CoA 2001:17).

4 Closing Australia’s Quarantine Loophole to New Weeds – A WWF-Australia Issues Paper Furthermore, the Liberal-National Party Coalition included an explicit commitment to “contribute to achieving the biodiversity targets” in their 2001 Federal election environment policy, A Better Environment (Liberal-National Party Coalition 2001).

Outline of Quarantine Legislation and Procedures Australia’s border control efforts are divided between the Australian Quarantine Inspection Service (AQIS), which is responsible for border control, and Biosecurity Australia which determines what material is allowed across the border. Activities of AQIS are legislated by the Commonwealth Quarantine Act 1908. The Quarantine Act 1908 has as its stated aim “the prevention or control of the introduction, establishment or spread of diseases or pests that will or could cause significant damage to human beings, animals, plants, or other aspects of the environment or economic activities” (SCALEplus, 2004). Section 13 of the Quarantine Act 1908 allow for the development of the Quarantine Proclamation which specifically identifies the plants that are permitted, prohibited, and restricted from importation into Australia.

From July 1998, under revised quarantine legislation (Quarantine Proclamation 1998) all plants are prohibited from entering Australia until they are assessed and/or appeared on the permitted seeds list (referred hereafter as the Permitted List) set up under Schedule 5 of the Quarantine Proclamation 1998. Those plant species that appeared on Schedule 4, Part 2 of the Proclamation are considered quarantine pests and are prohibited imports (hereafter referred as the Prohibited List). The Permitted List is part of a three-part system to regulate importation of plants (see Figure below): 1. The Permitted List: a list of plant species whose seeds are allowed into Australia; 2. The Prohibited List: a list of plant species whose seed and/or plant parts are not allowed into Australia; and 3. Weed Risk Assessment: a scientific risk assessment process for any new plants proposed for import. The species are evaluated for potential weediness and if determined to be of low risk the species is then placed on the Permitted List. If determined to be high risk then the species is prohibited. A decision may be delayed if there is insufficient information to determine the risk. Figure 1: AQIS procedure followed for importation of non-native plants into Australia

Application to Import a Plant is Submitted to AQIS

Permitted List Weed Risk Assessment Prohibited List

Require more information

Plant Enters Australia Plant Refused Entry to Australia

Source: Spafford-Jacob, Randall and Lloyd (2004:3)

Closing Australia’s Quarantine Loophole to New Weeds – A WWF-Australia Issues Paper 5 Nature and Extent of the Quarantine Loophole Invasion Pathway

Schedule 5 (Permitted List) of the Quarantine Proclamation 1998 currently contains a significant loophole.

The Permitted List currently includes over 6,600 entries. These listings allow the importation of seeds of particular species, as well as a large number of species included in species groups or ‘genera’.

The inclusion of genera on the Permitted Seeds List is the source of the loophole. There are currently 2,916 permitted genera on the List, which includes thousands of known weedy plant species all of which are not required to undergo any kind of weed risk assessment and can be imported into Australia without impediment. This substantial weakness undermines both the intent and purpose of the Permitted List and Weed Risk Assessment system.

A report by the Cooperative Research Centre for Australian Weed Management (Weeds CRC) calculated that as of 1 December 2003, the Permitted List loophole allowed the legal importation of 125,241 plant species without any Weed Risk Assessment in 2,916 genera (Spafford-Jacob, Randall, Lloyd 2004). This includes 4,003 known overseas agricultural and environmental weeds. More recent Weeds CRC analysis estimates that the loophole also includes an additional 2,420+ weeds that currently have no known overseas weed history (Panetta 2005).

Known overseas weeds able to be imported through the quarantine loophole

The known agricultural and environmental weeds not yet present in Australia includes:

known agricultural and environmental weeds not yet present in Australia through 700 (24%) of the 2916 listed genera; numerous weeds that are closely related to Weeds of National Significance (WONS). For example, all members (with a few exceptions) of the genera Asparagus (bridal creeper, Asparagus asparagoides), Hymenachne (hymenachne, Hymenachne amplexicaulis), Annona (pond apple, Annona glabra) and Rubus (blackberry, Rubus fruticosus) can be legally imported into Australia without undergoing a WRA. In the case of blackberry this includes 69 species that are already known weeds in other parts of the world; all plants in the genera of many other significant weedy plants in Australia such as grader grass, bellyache bush, arum lily, watsonia, Scotch broom, pampas grass, kochia, wild radish and annual ryegrass; plants that may be identified as synonyms of prohibited species plants in more than 25 genera where over 50% of their species are known weeds such as Cassia (cassias and sennas), Taraxacum (dandelions), Cynara (thistles) and Distichlis (saltgrasses); and plants from genera with 30 or more known weeds such as Centaurea (knapweeds), Rubus (blackberry) and Ipomoea (morning glory) and Cotoneaster (Spafford-Jacob, Randall, and Lloyd 2004).

6 Closing Australia’s Quarantine Loophole to New Weeds – A WWF-Australia Issues Paper Table 1: List of WONS nominees and the number of same genus weedy species on the AQIS Schedule 5 Permitted List that are not yet present in Australia.

WONS nominee in a Common name Number of weedy permitted genus relatives approved for importation but not yet present in Australia Jatropha gossypifolia Bellyache bush 6 Thunbergia grandiflora Blue thunbergia 1 Schinus terebinthifolia Brazilian pepper 1 Genista monspessulana Broom 4 Sporobolus indicus var. Giant Parramatta grass 13 major, S. natalensis and and Giant rat’s tail grass S. pyramidalis Themeda quadrivalvis Grader grass 3 Hydrocotyle ranunculoides Hydrocotyl 16 Hyptis suaveolens Hyptis 11 Bassia scoparia Kochia 8 Pennisetum polystachion Mission grass 10 Cortaderia spp. Pampas grass 1 Ligustrum lucidum and Privet 1 sinense Cytisus scoparius Scotch broom 3 Sida spp. Sida 29 Stachytarpheta spp. Snake weed 2 Erica lusitanica Spanish heath 1 Elephantopus mollis Tobacco weed 1 Reseda luteola Wild mignonette 7

Source: Spafford-Jacob, Randall and Lloyd (2004:10)

A list of the 25 permitted genera containing some of the most serious weeds is at Appendix 1.

Additional weeds able to be imported through the quarantine loophole

It has been clear from the earliest attempts at weed risk assessment (WRA) that the most powerful predictor of weedy behaviour in geographic areas ‘new’ to a species is how it has behaved when introduced elsewhere (Rejmanek 2000, Panetta et al 2001).

However, while overseas weed history is an important component of WRA, many species that have no weed history, either because they have not been introduced outside of their native ranges or have failed to become established, may become weeds once introduced to Australia (Panetta 2005).

Randall (unpublished data cited in Panetta 2005) has calculated that 18% of the species considered to be weeds in Australia are not considered to be weedy anywhere else in the world. This figure is conservative, since a number of species (eg. Rubbervine and praxelis), which are now weeds elsewhere in the world, were not known as weeds when they were first introduced to Australia. For example, of the 20 Weeds of National Significance (WoNS), 13 or 65% were not known to be weeds anywhere in the world at the time they were brought into Australia. The WoNS are rubber vine, pond apple, bitou bush/boneseed, bridal creeper, cabomba, chilean needle grass, serrated tussock, hymenachne, mesquite, parkinsonia, mimosa and willows (McFadyen 2005, pers. comm.).

Closing Australia’s Quarantine Loophole to New Weeds – A WWF-Australia Issues Paper 7 In New Zealand an increasing proportion of species that have become weeds in recent decades have been recognised as weedy for the first time in that country. Almost all of the species first collected in the wild in New Zealand before 1940 had a history of weediness elsewhere in the world, whereas 20% of those collected more recently have no history of weediness outside New Zealand (Williams et al 2001).

As species are sourced from new areas of the world, an increasing percentage can be expected to have no previous record of introduction, hence no opportunity to have demonstrated weed behaviour.

It has been estimated that the base-rate probability of a plant becoming a weed in Australia is about 2% for most types of plant introduction, but can be as high as 17% for certain groups (Smith et al 1999). As such, at least 2%, or 2,420 of the 121,000 plant species that are not known weeds overseas can be expected to become serious weeds once introduced.

Risks Associated with the Quarantine Loophole Invasion Pathway Number of weeds being introduced through loophole The number of new plant species legally imported into Australia each year is not public information. The only readily available public information relates to the period before the new permitted list – weed risk assessment system was implemented in 1998. Panetta et al (1994) estimated that perhaps a total of 5,000 taxa are introduced into Australia each year, and of these about 500 are taxa not previously recorded in Australia. Alternatively, between July 1994 to September 1996, the then Federal Department of Primary Industries and Energy reported that 221 new taxa not previously recorded in Australia (comprising 184 species and 37 genera) were introduced (DPIE 1996). This equates to about 100 new taxa legally imported per year over this period.

The number of invasive plant species that have been imported through the quarantine genera loophole both since the inception of the permitted list-WRA system in 1998 and over the past financial year, has not been publicly reported by the Federal Department of Agriculture, Fisheries and Forestry. Neither was this information included in the DAFF submission to the Federal Senate Inquiry on invasive species (DAFF 2003).

In this public information vacuum, at least one weed is known to have been definitely and recently imported into Australia through the loophole – bear skin fescue (Festuca gautieri) (Box 1). This weed has failed a weed risk assessment, undertaken when it was proposed for import into Western Australia. It was consequently prohibited for import into that State. If it had been subjected to a weed risk assessment by Biosecurity Australia it would also have failed and its importation into Australia would have been prohibited.

Box 1. Import of Known Weed through Loophole: the Example of Bear-skin Fescue

Proper Name: Festuca gautieri (Hackel) K. Richter

Synonym/s: Festuca varia Haenke ssp. scoparia A.Kern. ex Hack. Festuca scoparia A.Kern. ex Nyman Festuca varia var. gautieri Hack. bas.

Common Name: bear-skin fescue

8 Closing Australia’s Quarantine Loophole to New Weeds – A WWF-Australia Issues Paper Weediness This plant has naturalised in the UK (Preston et al. 2002) and has the capability to become both an agricultural and environmental weed in Australia.

Weed Risk Assessment Score - 10 (Reject) Assessment date: 19 January 2004 (undertaken by WA Agriculture)

Features A perennial, tussock forming grass native to southwest France and northeast Spain from the coast into the Pyrenees grasslands. This grass has low grazing palatability and hence dominates grasslands in its native range. It has the potential to reduce pasture holding capacity in agricultural systems and impact on the biodiversity and structure of Australian native grasslands.

Potential Distribution in Australia

Figure 2: Potential distribution of Festuca gautieri as determined by ‘Climate’

Source: Spafford-Jacob, Randall and Lloyd (2004:5) Sale in Australia The species was imported by the nursery industry in about 2003, and became commercially available in November 2004 through a large Melbourne based wholesale nursery. Figure 3: Bear skin fescue on sale in a Victorian wholesale nursery (Nov. 2004) Vince Calati / The Weekl y Times

Predicted Impact

It is a known grazing weed in the United Kingdom and the United States, and is predicted to become a grazing weed in Victoria and the NSW Tablelands.

Source: Based on Spafford-Jacob, Randall and Lloyd (2004:5), Martin (2005a)

Closing Australia’s Quarantine Loophole to New Weeds – A WWF-Australia Issues Paper 9 The Western Australian experience is also instructive. Western Australia adopted the permitted list system in late 1997. The first WA permitted list contained the 2,900 exempt genera as allowed into Australia by the Australian Quarantine and Inspection Service (AQIS). In January 2002, the exempt genera were removed entirely, with no attempt made to add extra species to the permitted list. As expected, when the exempt genera were removed the rate of quarantine species being rejected by assessments increased. If the exempt genera had remained, over the last two years roughly 100 potentially weedy species would have been permitted entry into Western Australia (Fig. 4) (McFadyen 2005). The WA experience indicates that there is a large probability that a significant number of new weeds - additional to bear skin fescue - have been legally imported into Australia through the permitted list loophole since the inception of the Australian Government national permitted list system in 1998.

Figure 4: Change in the rate of detection of quarantine (prohibited) weeds after exempt genera removed

Source: McFadyen (2005)

Potential impact of weeds on the Australian environment and agriculture

The impact on the Australian environment and agriculture will be large if a significant weed is legally permitted into Australia, for example as a novel garden plant or as a contaminant of imported seed, which then naturalises and becomes widespread.

There are a number of serious weeds that exist overseas that are not yet present in Australia, but can be legally imported into Australia through the loophole. They include:

• cropping weeds such as brome grass (Bromus arvensis), and the water hemp (Amaranthus tubculatus), which has developed extensive herbicide resistance in the USA. Yet both of these species can be legally imported into Australia by anyone. Persian darnel (Lolium persicum), closely related to annual ryegrass, is another grass that can be a problem in cropping and which can also be imported • grazing weeds such as speargrasses in the Stipa genus, and close relatives (from the same genus) of blackberry, grader grass, pampas grass, yellow star thistle, knapweed, dandelions, Scotch broom, kochia, wild radish and bellyache bush • horticultural weeds such as various sourgrass weeds in the Paspalum genus which are considered serious weeds of orchards • environmental weeds such as close relatives of blackberry, cotoneaster, morning glory, and scotch broom.

10 Closing Australia’s Quarantine Loophole to New Weeds – A WWF-Australia Issues Paper Box 2: The case of kochia (Bassia scoparia)

Kochia (Bassia scoparia) was introduced into Western Australia in 1990 as a forage plant for revegetating salt-affected land. Since the whole Bassis genus was on the then equivalent of the permitted list, the import of kochia was not questioned, even though the species was one of the worst crop weeds in the Mid West grain belt of the USA. Within two years kochia in WA had escaped, and $0.5 million had to be spent on an eradication program.

While kochia has now been removed from the national permitted list, all of the other 21 species in the Bassia genus remain listed as legal imports, including eight species that are known weeds. These plants can be imported and promoted for planting by anyone with no risk assessment required. Source: Martin (2005b)

Box 3: The case of Mexican feather grass (Nassella tenuissima)

Mexican feather grass (Nassella tenuissima) is an ornamental tussock grass inadvertently imported as a species of the Stipa genus about 1996. It was available for sale in nurseries from about 1996 and in 2004 was found naturalised in northern NSW – a mere eight years between initial sale and naturalisation (McLaren et al 1999; Hosking 2004). A close relative of serrated tussock (Nassella trichotoma), the discovery was described by pastoral industry representatives as ‘disastrous’. Attempts are now being made to eradicate it.

Scientists have calculated that its potential full extent would cover 14 million hectares, including large areas currently used for grazing. It is unpalatable to stock and is predicted to become a serious grazing weed if has the opportunity to establish and spread (McLaran et al 1999).

The impact of serrated tussock:

• Unpalatable to stock, lives 20 years • Infested pastures show production losses up to 95% • Costs NSW graziers $40 million per year • Area increased four-fold in Victoria over the last 20 years, potential to spread over 30m hectares of south-east Australia • Close relatives are extremely weedy, including Chilean needle grass (Nassella neesiana) one of the 20 Weeds of National Significance, Texas needle grass (Nassella leucotricha), Cane needle grass (Nassella hyalina) and Lobed needle grass (Nassella charruana) both on the national Alert List for Environmental Weeds, and Mexican feathergrass (Nassella tenuissima).

While Mexican feathergrass has now been removed from the permitted list, the Stipa genus loophole remains. At least 22 known weeds not yet present in Australia can be legally imported through this loophole – another Mexican feather grass ?

Sources: Martin (2005a), McLaran et al (1999)

Closing Australia’s Quarantine Loophole to New Weeds – A WWF-Australia Issues Paper 11 Selected Stakeholder Positions

Australian Weeds Committee

The Australian Weeds Committee (AWC) has raised the issue of the permitted list loophole several times over the years with the Australian Government. Most recently, in December 2004 the AWC wrote to Biosecurity Australia requesting an assessment of the feasibility of adopting the recommendations of the WWF report, Front Door Wide Open to Weeds.

Federal Senate Committee

The Federal Senate Environment, Communications, Information Technology and the Arts References Committee report on the regulation, control and management of invasive species and the Environment Protection and Biodiversity Conservation Amendment (Invasive Species) Bill 2002 recommended that the Australian Government act urgently to ensure that:

• all listings on Schedule 5 of the Quarantine Proclamation 1998 are made by species, not genera • a mechanism be developed to ensure that species identified as weeds of national significance are automatically removed from Schedule 5, and • all listings and applications for the import of plants and seeds be standardised using the scientific names of species (SECITARC 2004:vii).

It should be noted that the Committee Liberal Party representative endorsed the report and all its recommendations.

Weeds CRC

The Cooperative Research Centre for Australian Weed Management is “of the firm view that all 2,916 permitted genera need to be urgently replaced with a list of permitted species, plants that are already present in Australia under cultivation or naturalised but not under ‘official control’ ” (Panetta 2005:1).

12 Closing Australia’s Quarantine Loophole to New Weeds – A WWF-Australia Issues Paper The Way Forward

WWF-Australia 3 Step Plan

WWF-Australia believes the following 3 step implementation plan will most efficiently reduce the risk of further imports of invasive plant species (to be undertaken in the order listed). It should be implemented urgently to prevent the risk of further imports of invasive weeds:

1. All genera be removed from the permitted seeds list and replaced with a comprehensive list of permitted species that has previously passed a WRA and/or are currently under cultivation or widely naturalised (but not under official control nor previously failed a WRA).

This would include those species identified in Step 3. Those plant species that are not placed on the list of permitted species (but that were formally part of permitted genera) would be provisionally prohibited pending further information. A procedure is set out in Spafford-Jacob, Randall and Lloyd (2004).

WWF-Australia has received legal advice that confirms this action is consistent with the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement). It would also result in all proposed imports being identified by full scientific name, as recommended by the recent Federal Senate Committee inquiry on invasive species (Recommendation 16, SECITARC 2004:vii).

2. All plant species declared under various State and Territory noxious weed legislation, but not yet listed on the Schedule 4, Part 2 list of the Quarantine Proclamation 1998, be reviewed to ascertain whether they satisfy the ‘official control’ test set out under the SPS Agreement, and undertake necessary steps including a WRA to place those plant species that satisfy the ‘official control’ test on the Prohibited List (Schedule 4, Part 2 of the Quarantine Proclamation, 1998).

For example, all species in the Equisetum genus are declared noxious under all State noxious weed legislation and are listed on the national Alert List of Environmental Weeds. However, the Equisetum genus is still a permitted genus; only 3 of the about 30 species in the genus are currently prohibited for importation.

3. All some 4,000 plant species known to be overseas weeds but not yet present in Australia be subjected to a WRA with those that fail the Assessment placed on the Prohibited List (Schedule 4, Part 2 of the Quarantine Proclamation, 1998) and those species that pass the Assessment placed on the Schedule 5 list.

This would provide increased certainty to the nursery industry, and seed importers on those weedy species that cannot be imported into Australia due to their invasive characteristics.

Compliance with World Trade Organisation Instruments

Australia is a member of the World Trade Organisation (WTO) and as such is bound by its Agreement on the Application of Sanitary and Phytosanitary Measures (the ‘SPS Agreement’) which relates to the application of food safety and animal and plant health regulations.

Closing Australia’s Quarantine Loophole to New Weeds – A WWF-Australia Issues Paper 13 The SPS Agreement obliges governments to establish national SPS measures consistent with international standards, guidelines and recommendations. In relation to import of plant materials, these are promulgated by the International Plant Protection Convention (IPPC), as the competent WTO body. The objectives of these standards are to achieve international harmonisation of phytosanitary measures, with the aim to facilitate trade and avoid the use of unjustifiable measures as barriers to trade.

Removal of Genera without Each Species Being Subject to a Weed Risk Assessment

A key legal question is whether WWF’s preferred solution to close this quarantine law loophole is legal under the WTO SPS Agreement. The most efficient solution to the quarantine law loophole problem is to simply remove all genera from the Schedule 5 permitted list and replace them with a list of permitted species that have either previously passed a weed risk assessment, and/or are currently under cultivation or widely naturalised (but not under official control nor previously failed a WRA). To implement this solution quickly, it needs to be done without subjecting each species in the genera to a weed risk assessment.

WWF-Australia sought independent legal advice from an internationally recognised expert on invasive species law, whom confirmed that Australia would not be in breach of the WTO SPS Agreement and related international instruments if it implemented the preferred WWF solution (Jenkins 2005). Indeed, the advice highlights that Australia has no obligation to create that list in the first place under international law and is not bound by any international requirements if it chooses to eliminate the list altogether or in part (by removing the genera and replacing them with appropriate species).

The starting point for the above conclusion is set out in Appendix 2 (Key WTO and IPPC Provisions with Respect to the Proposed Elimination of Genera from Australia’s Existing Permitted List). The WTO SPS Agreement excerpts illustrate how the International Plant Protection Convention (IPPC) is considered the competent body under international trade law to promulgate requirements and guidelines related to national regulation of plant imports. The IPPC’s International Standard for Phytosanitary Measures (ISPM) 19, Guidelines on Lists of Regulated Pests, excerpted in pertinent part in Appendix 2, defines the term “pest” to include plants to the extent that as weeds they may be injurious to other plants and plant products. This has been interpreted broadly by the IPPC parties to include environmental effects such as threats to wild flora. Other definitions therein help the reader understand IPPC terminology and that the Convention focuses only on “regulated pests,” i.e., those plants, animals, or pathogens that are prohibited or quarantined. The entry from page 9 of ISPM 19 in App. 2 provides the key clarification relevant to whether it is legal for Australia to remove genera from the Permitted List without undertaking weed risk assessments of affected species:

In developing lists of regulated pests, some contracting parties identify non-regulated pests. There is no obligation for listing such pests. Contracting parties shall not require phytosanitary measures for nonregulated pests (Article VI.2 of the IPPC, 1997). The provision, however, of this information may be useful, for example for facilitating inspection.

Thus, a Permitted List such as Australia’s has no foundation in international legal obligations. It is merely considered to provide “useful” information. Most critically, no formal international requirement exists that species be put on or removed from a Permitted list pursuant to a WRA or any other formal assessment.

14 Closing Australia’s Quarantine Loophole to New Weeds – A WWF-Australia Issues Paper As such, the Federal Senate Committee Inquiry report wrongly notes that “International obligations require that a species cannot be taken off of the permitted list without scientific justification” (SECITARC 2004:172).

Removal of Weed Species Under ‘Official Control’

There are a significant number of weeds in Australia that are declared noxious under State and Territory legislation but are still able to be imported into Australia. As State and Territory noxious weed lists are not uniform, this creates a situation whereby weed species declared noxious in one or several States can be legally imported into Australia through other jurisdictions where the weed is not listed.

An example is weed species of the Equisetum genus (commonly known as horsetails), considered to be among the world’s worst agricultural weeds due to their resilience, toxicity and ability to dominate poorly-drained farmland and pastures (Holm et al 1977). All the about 30 species in the Equisetum genus have been declared noxious by all States and are included on the national Alert List of Environmental Weeds, though a mere three are currently prohibited imports into Australia. Other than these three species, Australia remains at risk of further genetic material of these noxious horsetail weeds being imported into one of the Territories where they are not declared noxious.

The Australian Government is able to remove noxious weeds, declared under State and Territory government legislation, from the Permitted List and place them on the Prohibited List if it can demonstrate that the given noxious weed satisfies the test of ‘official control’ as set out by the International Plant Protection Convention.

The definition and guide on whether weeds on noxious weed lists satisfy the test for ‘official control’ is contained in the International Standards for Phytosanitary Measures (ISPM) Publication No. 5.

The ISPM guidelines defines official control as:

The active enforcement of mandatory phytosanitary regulations and the application of mandatory phytosanitary procedures with the objective of eradication or containment of quarantine pests or for the management of regulated non-quarantine pests (SIPPC 2002:23).

Official controls include:

• Eradication and/or containment in the infested area(s) • Surveillance in the endangered area(s) • Measures related to controls on movement into and within the protected area(s) including measures applied at import (SIPPC 2002).

The Guide notes that: [a]ll official control programmes have elements that are mandatory. At minimum, programme evaluation and pest surveillance are required in official control programmes to determine the need for and effect of control to justify measures applied at import for the same purpose. For quarantine pests, eradication and containment may have an element of suppression. For regulated non-quarantine pests, suppression may be used to avoid unacceptable economic impact as it applies to the intended use of plants for planting (SIPPC 2002:23).

Equisetum species present in Australia would readily satisfy the ‘official control’ test and as such those not already on the Schedule 4, Part 2 prohibited list should be subjected to a weed risk assessment and consequently placed on this list. This would include E. scirpoides (dwarf horsetail), which was detected in a nursery for sale illegally in Victoria in November 2004

Closing Australia’s Quarantine Loophole to New Weeds – A WWF-Australia Issues Paper 15 (Godwin 2004). A significant number of other declared noxious weeds would also satisfy the ‘official control’ test, and as per Step 2 of the WWF way forward, those not already on the prohibited list should be identified, subjected to a WRA and placed on the list.

New Developments in the Australian Government Position

The Australian Government has recently affirmed its position and a new timetable in relation to the quarantine law loophole. In a press release dated 20 January 2005, Federal Minister for Fisheries, Forestry and Conservation, stated that:

Species identified as weeds from this review will be removed from the permitted seeds list by mid-year [2005]. Biosecurity Australia is also reviewing 2,916 permitted genera with the aim of only including species on the permitted seeds list that are present in Australia and not under official control…A public consultation process was also announced late last year with some useful responses already received. When the project is completed, any seed not on the permitted seeds list will need to undergo a weed risk assessment to determine if it should be allowed to enter Australia. It is anticipated that the extensive review of the permitted genera could be completed by the end of 2006 (Macdonald 2005).

This is a significant announcement that commits to implement Step 1 of the way forward proposed by WWF above by 2006. As there are no WTO constraints to amending the permitted list, and as the review of whether plant species are naturalised in Australia is essentially complete, the Australian Government could readily remove all genera by 2005. As such, WWF urges the Government to strengthen the non-definitive commitment ‘anticipating’ the review ‘could be completed by the end of 2006’ and bring forward the timetable to 2005 or the start of 2006 with a definitive commitment that ‘all genera will be removed from the Permitted List by 2005 or the start of 2006 at the latest.’

Conclusion

In conclusion, the recent announcement by the Australian Government commits to a timetable of 2006 to implement step 1 set out in the WWF way forward. Once implemented this will remove the significant risk of legally importing any of the at least 6,420 new weed species not yet present in Australia. This is a major step forward to weed proofing Australia to invasion by new weed species.

The fact that 65% of the Weeds of National Significance had no known overseas weed history when they were first imported into Australia provides a salient warning as to why all genera need to be removed, rather than merely relying on removal of the 4,000 known overseas weeds from the Permitted List.

The final, relatively minor, commitment that remains outstanding is the need to prohibit the import into Australia of all weeds declared as noxious by State and Territory governments that satisfy the WTO ‘official control’ test (Step 2) and over time subject the 4,000 known weeds to a weed risk assessment and place those that fail on the Prohibited List (Step 3).

16 Closing Australia’s Quarantine Loophole to New Weeds – A WWF-Australia Issues Paper References

Agriculture and Resource Management Council of Australia and New Zealand (ARMCANZ), Australian and New Zealand Environmental and Conservation Council and Forestry Ministers. 1999. National Weeds Strategy: A strategic approach to weed problems of national significance. Commonwealth Government of Australia, Canberra. [URL: http://www.daff.gov.au/corporate_docs/publications/pdf/nrm/nws/nws.pdf. Last accessed 14 January 2005] Lazarides, M., Cowley, K., and Hohnen, P. 1997. CSIRO handbook of Australian weeds. CSIRO Publishing, Collingwood, Vic. Liberal-National Party Coalition. 2001. A Better Environment. 2001 Federal election environment policy. Liberal-National Party Coalition, Canberra. Commonwealth of Australia. 2001. National Objectives and Targets for Biodiversity Conservation: 2001-2005. Environment Australia: Canberra. [URL: http://www.deh.gov.au/biodiversity/publications/objectives/pubs/nots.pdf. Last accessed 14 January 2005] DAFF (Department of Agriculture, Fisheries and Forestry). 2003. Submission to the Senate Environment, Communications, Information Technology and the Arts References Committee Inquiry on the Regulation, Control and Management of Invasive Species and the Environment Protection and Biodiversity Conservation Amendment (Invasive Species) Bill 2002. DAFF, Canberra. DPIE (Department of Primary Industries and Energy. 1996. Response to Question on Notice from Senator Woodley. Senate Estimates, August 1996 (Hansard pg. 222). Godwin, S. 2004. Noxious killer at large, The Weekly Times, 24 November 2004, pg.21. Holm, L.G. Plunkett, D.L., Pancho, J.V. and Herberger, J.P. 1997. The World’s Worst Weeds – distribution and biology. University Press of Hawaii. Hosking, J. 2004. Tamworth Agricultural Research Centre Herbarium (TARCH) Location Note on Nassella tenuissima,TARCH No. 6846. Jenkins, P. 2005. International law in relation to proposed changes to Australian law regulating plant imports. Legal Memorandum prepared for WWF-Australia. International Centre for Technology Assessment, Washington DC. Lazarides, M., Cowley, K., and Hohnen, P. 1997. CSIRO Handbook of Australian Weeds. CSIRO Publishing, Collingwood, VIC. Macdonald, I. 2005. Review of permitted seeds list. Media release No. DAFF05/002M 20 January 2005. [URL: http://www.mffc.gov.au/releases/2005/05002m.html. Last accessed 21 January 2005] Martin, P. 2005a. Closing the front door to new weeds: benefits for the sheep and wool industries. Weeds CRC briefing note. Ref. 3/2005/bn. Weeds CRC, Adelaide. Martin, P. 2005b. Closing the front door to new weeds: benefits for the grains/cropping industry. Weeds CRC briefing note. Ref. 4/2005/bn. Weeds CRC, Adelaide. McLaren, D.A., Whattam, M., Blood, K., Stajsic, V. and Hore, R. 1999. Mexican feather grass (Nassella tenuissima) a potential disaster for Australia. Proceedings of the 12th Australian Weeds Conference, 12-16 September, West Point Convention Centre, Hobart Tasmania. Pp. 658-662. McFadyen, R. 2005. Western Australia’s experience: a permitted list with all genera removed. Weeds CRC briefing note. Ref. 2/2005/bn. Weeds CRC, Adelaide. Panetta. D. 2005. Comprehensive solution the only sure fire way to stop intentional import of new weeds. Weeds CRC briefing note. Ref. 1/2005/bn. Weeds CRC, Adelaide. Panetta, F.D., Mackey, A.P., Virtue, J.G. & Groves, R.H. 2001. Weed risk assessment: core issues and future directions. In: Weed Risk Assessment. Eds. R.H. Groves, F.D. Panetta & J.G. Virtue. CSIRO Publishing, Melbourne. Pp. 231-240. Panetta, F.D., Pheloung, P. Lonsdale, M. Jacobs, S. Mulvaney, M. and Wright, W. 1994. Screening plants for weediness: a procedure for assessing species proposed for importation into Australia. Report commissioned by the Australian Weeds Committee.

Closing Australia’s Quarantine Loophole to New Weeds – A WWF-Australia Issues Paper 17 Parsons, W.T., and Cuthbertson, E.G. 1992. Noxious weeds of Australia. Intaka Press, Melbourne. Preston, C.D., Pearman, D.A. and Dines, T.D. 2002. New Atlas of the British & Irish Flora. An Atlas of the Vascular Plants of Britain, Ireland, the Isle of Man and the Channel Islands. Oxford University Press. Rejmanek, M. 2000. Invasive plants: approaches and predictions. Austral Ecology, 25:497- 506. SCALEplus. 2004. http://www.scaleplus.law.gov.au SECITARC (Senate Environment, Communications, Information Technology and the Arts References Committee). 2004. Turning Back the Tide – the Invasive Species Challenge. Report on the regulation, control and management of invasive species and the Environment Protection and Biodiversity Conservation Amendment (Invasive Species) Bill 2002. SECITARC, Canberra. SIPPC (Secretariat of the International Plant Protection Convention). 2002. International Standards for Phytosanitary Measures (ISPM) Publication No. 5, Glossary of Phytosanitary Terms, Supplement 1: Guidelines on the Interpretation and Application of the Concept of Official Control for Regulated Pests, FAO: Rome, pg. 23. [URL: http://www.ippc.int/servlet/BinaryDownloaderServlet/ISPM_05_En_Fr_Sp.pdf?filena me=1061795895343_ispm5_enfrsp02final.pdf] Smith, C.S., Lonsdale, W.M. and Fortune, J. 1999. When to ignore advice: invasion predictions and decision theory. Biological Invasions, 1:89-96. Spafford-Jacob, H., Randall, R. and Lloyd, S. 2004. Front Door Wide Open to Weeds: an examination of the weed species permitted for import without risk assessment. A Weeds CRC and University of Western Australia report prepared for WWF-Australia. WWF- Australia, Sydney. Williams, P.A., Nicol, E. & Newfield, M. 2001. Assessing the risk to indigenous biota of plant taxa new to New Zealand. In: Weed Risk Assessment. Eds. R.H. Groves, F.D. Panetta & J.G. Virtue. CSIRO Publishing, Melbourne. Pp.100-116.

18 Closing Australia’s Quarantine Loophole to New Weeds – A WWF-Australia Issues Paper Appendix 1: The 25 Permitted Genera Containing Some of the Most Serious Weeds

Permitted Common/ # weedy Description Genus* weedy Impact species members ** already in Aust. Astragalus Locoweed, A 2 Annual/perennial herbaceous plants; some toxic crazyweed, milk vetch Atriplex Saltbushes A/E 10 Some Australian native species are weedy elsewhere in the world and are also weeds within Australia outside their native range. Exotic species would be well adapted to Australian climates and habitats. Cardaria Whitetop, A 1 Noxious, herbaceous perennial plants. They spread hoary cress, by horizontal rootstocks. Hoary cress (Cardaria hairy draba) is a well known agricultural weed that is whitetop noxious in five states. This plant is considered one of the worst weeds of agriculture in several parts of the world. Cassia Senna, A/E 18 Mainly shrubs and small trees. Found in pastoral candle bush areas. Pods may be consumed and dispersed by cattle and other animals. Some species spread as contaminants. Dense thickets can form. Centaurea/ Knapweeds A/E 19 These genera contain some very well known weeds Cynara/Carduus/ and Thistles many of which have been biological control targets Carthamus in Australia and overseas. These plants are rapid invaders in both agricultural and environmental systems and substantially degrade the land. Cortaderia Pampas E 3 These plants have been used as ornamentals but grasses escape cultivation and can become very invasive. Large tussock forming grasses. The leaves can inflict deep cuts. Cotoneaster cotoneaster E 9 Birds disperse the berries of these plants that vary from shrubs to trees. These plants are weedy across southern Australia and were introduced as ornamentals. Genista/ Cytisus Scotch E 8 The brooms are strong competitors with Australian broom native plants. Shrubs are found in bushland, roadsides and neglected areas. Imported into Australia as ornamental plants. Gnaphalium Cudweed A 11 Lawn weeds. Heliotropium Heliotrope, A 6 Perennial and annual herbaceous plants. Blue blue heliotrope is a biocontrol target. Weeds of heliotrope roadsides and neglected land. Toxic. Introduced probably as ornamentals. Ipomoea Morning A/E 14 Perennial and annual plants with vine habits. glory Rapid growing plants and many are ornamentals that are widely planted. Some are considered noxious. Jatropha Bellyache E 2 Shrub and tree habits. These plants are toxic and bush one species is a biocontrol target in Australia. They are often cultivated as ornamentals.

Closing Australia’s Quarantine Loophole to New Weeds – A WWF-Australia Issues Paper 19 Permitted Common/ # weedy Description Genus* weedy Impact species members ** already in Aust. Lepidium Peppercress A 10 Weeds of disturbed ground. These plants are annuals and biennials and they have been used as food plants but found as weeds throughout Australia. Linaria Dalmation A/E 8 Herbaceous annuals or perennials. Weeds of toadflax roadsides, pastures, and neglected land. Poisonous to livestock. Targeted for biocontrol in North America. Lolium Ryegrass A 5 Annual ryegrass is a member of this genus. With a high rate of herbicide resistance this agricultural weed is one of the greatest burdens on cropping systems in Australia. These plants are beneficial pasture plants. Paspalum Paspalum, A/E 18 Sourgrass is considered a serious weed of orchards. sourgrass These perennial herbs are used as fodder plants. Poa A/E 6 Weeds of lawns, roadsides, pastures and broadacre crops. Annual and perennial herbaceous plants. Potentilla Cinquefoil A/E 4 Attractive plant may grow upright or in a vine habit. Perennial plants that are planted as ornamentals. Raphanus Radish, wild A 3 Wild radish, a well known agricultural weed is radish, sea found in this genus. Wild radish is one of the most radish difficult weeds to control in broadacre cropping systems and has a high rate of herbicide resistance. Reseda Mignonette A/E 5 Annual, biennial, and perennial plants of this genus are found as weeds in crops, roadsides, river banks and pastures. Rubus Blackberry A/E 27 This is a well known genus with many weedy plants such as blackberry. Plants often have prickles and produce suckers. When invasive, these plants form dense thickets and are extremely difficult to control. The seeds may be distributed by birds, foxes and other animals. Blackberry is a biocontrol target. Sida Spinyhead A/E 11 These are shrubby weeds of vegetable crops, sida, flannel pastures in the tropics, gardens and degraded areas. weed, Some plants are poisonous. corrugated sida Silene Bladder A/E 19 Annual and perennial herbaceous plants. They campion, inhabit disturbed ground and are weeds of pastures catchfly and crops. Sporobolus Dropseed A 10 Perennial and biennial herbaceous plants. grass, Paramatta grass is a serious problem in Queensland Paramatta and NSW pastures. These plants were nominated grass as WONS. Stipa Speargrass A/E 7 These grassy species typically grow in pastoral areas and are weeds of roadsides and neglected areas. The stipas are tussock forming grasses. S. neesiana is a synonym of N. neesiana. Both are permitted. S. trichotoma is a synonym of N. trichotoma. Nassella neesiana and N. trichotoma are WONS. * The genus may have some species prohibited. **A=agricultural impact; E=environmental impact

References: Lazarides et al. (1997), Parsons and Cuthbertson, (1992)

20 Closing Australia’s Quarantine Loophole to New Weeds – A WWF-Australia Issues Paper Appendix 2: Key WTO and IPPC Provisions With Respect to the Proposed Elimination of Genera from Australia’s Existing Permitted List (Jenkins 2005)

Key Provisions of the WTO SPS Agreement

(available at http// www.wto.org/english/docs_e/legal_e/legal_e.htm)

Art. 3- Harmonization

1. To harmonize sanitary and phytosanitary measures on as wide a basis as possible, Members shall base their sanitary or phytosanitary measures on international standards, guidelines or recommendations, where they exist, except as otherwise provided for in this Agreement, and in particular in paragraph 3.

Annex C, Par. 3( c) defines the above phrase “International standards, guidelines and recommendations” as follows:

- for plant health, the international standards, guidelines and recommendations developed under the auspices of the Secretariat of the International Plant Protection Convention [IPPC] in cooperation with regional organizations operating within the framework of the International Plant Protection Convention;...”

Key IPPC Standards

(https://www.ippc.int/servlet/CDSServlet?status=ND0zMjU0OCY2PWVuJjMzPSomMzc9a2 9z)

Excerpts below, except as indicated, are from International Standard for Phytosanitary Measures (ISPM) 19 - Guidelines on Lists of Regulated Pests

(pp. 4-5)

Definitions: pest - Any species, strain or biotype of plant, animal or pathogenic agent injurious to plants or plant products4 phytosanitary measure - Any legislation, regulation or official procedure having the purpose to prevent the introduction and/or spread of pests regulated pest - A quarantine pest or a regulated non-quarantine pest ......

4 Note: The more recent ISPM 11, adopted in 2004, on “Pest Risk Analysis for Quarantine Pests, Including Analysis of Environmental Risks and Living Modified Organisms,” at Annex 1 - “Comments on the Scope of the IPPC in Regard to Environmental Risks,” expands on this definition to clearly include potential environmental weeds, providing: “The full range of pests covered by the IPPC extends beyond pests directly affecting cultivated plants. The coverage of the IPPC definition of plant pests includes weeds and other species that have indirect effects on plants, and the Convention applies to the protection of wild flora.”

Closing Australia’s Quarantine Loophole to New Weeds – A WWF-Australia Issues Paper 21 (p. 8)

Article VII.2i of the IPPC (1997) states:

Contracting parties shall, to the best of their ability, establish and update lists of regulated pests, using scientific names, and make such lists available to the Secretary, to regional plant protection organizations of which they are members and, on request, to other contracting parties.

Therefore, contracting parties to the IPPC have the explicit obligation to prepare and make available, to the best of their abilities, lists of regulated pests......

(p. 9)

Excerpts below are from ISPM 11 - Pest Risk Analysis for Quarantine Pests, Including Analysis of Environmental Risks and Living Modified Organisms

Definitions - Pest Risk Analysis [PRA] - The process of evaluating biological or other scientific and economic evidence to determine whether a pest should be regulated and the strength of any phytosanitary measures to betaken against it.

1.1 Initiation points

The PRA process may be initiated as a result of: - the identification of a pathway that presents a potential pest hazard - the identification of a pest that may require phytosanitary measures - the review or revision of phytosanitary policies and priorities......

1.1.3 PRA initiated by the review or revision of a policy

A requirement for a new or revised PRA originating from policy concerns will most frequently arise in the following situations: - a national decision is taken to review phytosanitary regulations, requirements or operations - a proposal made by another country or by an international organization (RPPO, FAO) is reviewed - a new treatment or loss of a treatment system, a new process, or new information impacts on an earlier decision - a dispute arises on phytosanitary measures - the phytosanitary situation in a country changes, a new country is created, or political boundaries have changed......

22 Closing Australia’s Quarantine Loophole to New Weeds – A WWF-Australia Issues Paper 1.3.1 Previous PRA

A check should also be made as to whether pathways, pests or policies have already been subjected to the PRA process, either nationally or internationally. If a PRA exists, its validity should be checked as circumstances and information may have changed. The possibility of using a PRA from a similar pathway or pest, that may partly or entirely replace the need for a new PRA, should also be investigated.

1.4 Conclusion of initiation

At the end of Stage 1, the initiation point, the pests and pathways of concern and the PRA area will have been identified. Relevant information has been collected and pests have been identified as possible candidates for phytosanitary measures, either individually or in association with a pathway......

2. Stage 2 - Pest Risk Assessment

...... Pest risk assessment needs to be only as complex as is technically justified by the circumstances.

Closing Australia’s Quarantine Loophole to New Weeds – A WWF-Australia Issues Paper 23