An appropriate level of protection

FEEDBACK is being sought by the Department of Agriculture, Fisheries and Forestry (DAFF) on its response to the Beale review of biosecurity, with new legislation proposed. This is an important issue and many in agriculture will have an opinion. A blog is among the options available for lodging comments.

I reviewed the Beale report soon after it was published in 2008 and was intrigued to discover that, beyond acknowledging ‘zero risk’ was not an option, Beale and his committee could find no basis upon which to determine a reasonable balance between free trade and quarantine barriers.

As a WTO member Australia is entitled to set biosecurity levels to provide “an appropriate level of protection.” The problem is that nobody can currently say what is appropriate. The gap has been filled by public servants with improvised policies, but these have always been defined as “drafts”. In 2005 the Federal Court referred to it as “the imponderable standard of acceptable lowness”.

This has significant implications for Australian trade. There is a widespread perception abroad that we use quarantine laws as a trade barrier rather than for their stated purpose. There are plenty of Australians who seriously believe that’s what they’re for.

But it gets us into trouble. Failure to consistently apply an appropriate level of protection has led to appeals to the WTO. Canada successfully appealed against Australia’s ban on salmon and New Zealand against the ban on apples. Our access to export markets is jeopardised and we find it difficult to argue for free trade when we do not practice it ourselves.

The Beale inquiry concluded that achieving an appropriate balance is a government responsibility rather than a scientific or technical issue. It argued the Minister should have the capacity to define such a balance, in consultation, based on a risk-return assessment, on the basis that the Minister can reflect the community’s interests and be held accountable for setting the bar at the right level.

This concept sits uncomfortably with politicians. There are many votes to be lost in getting the biosecurity level wrong and few to be gained by getting it right. And while accountability is desirable, some argue that a Minister who closes down an entire industry in response to a TV program is not fit to exercise such weighty responsibility.

It is therefore no surprise to find that the proposed new biosecurity legislation fails to implement this recommendation. A public servant (the Director of Biosecurity) will establish guidelines for import risk assessments based on a purportedly unchanged “appropriate level of protection”, namely “providing a high level of sanitary and phytosanitary protection, aimed at reducing risk to a very low level, but not to zero”.

Despite the inherent imponderability in that, it is claimed the legislation will adopt a risk-based approach that provides a clear understanding of the level of biosecurity risk that Australia is prepared to accept, thus supposedly reducing the administrative burden on compliant clients and enabling greater focus on higher risk commodities and behaviours.

Whether this becomes reality or is just bureaucratic dreaming will depend very much on sound, transparent guidelines and their consistent application. The guidelines will not be legislated, so obviously there is scope for adjustment in light of changed circumstance, but there are also no indications they will include risk-return considerations as recommended by Beale.

There are many other proposed changes. Some, such as preventing the states and territories from further restricting the movement of imported goods even when they have been permitted by the Commonwealth, make sense. So does removing scientific and operational decisions from political interference, which will hopefully reduce the potential for import decisions to be influenced by lobbying to keep out imported competitors.

On the other hand a significant expansion of Commonwealth power is envisaged, and scant consideration is given to the role of the states and territories. Beale’s preference for a collaborative approach involving the Commonwealth, states and other stakeholders is largely ignored.

There are several ways in which the effectiveness of the proposed changes will be tested. One is whether Australia continues to be forced to defend itself before a WTO disputes panel. Even a win there is a failure in terms of policy.

Another is whether there is a change in perceptions of Australia as a fair trading nation. If the rest of the world continues to believe we encourage other countries to open their markets to our goods while we hide behind quarantine barriers, no progress will have been made.

This is a subject that deserves widespread consideration. The consultation process will continue until 10 August.

* David Leyonhjelm is an agribusiness consultant with Baron Strategic Services. He may be contacted at

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Percy McKenzie
17/07/2012 11:24:00 AM

The benchmark is set by Foot & Mouth Disease whereby ALL imports from an infected country into uninfected countries stop because there is a risk of infection. Set the same standards on whatever we require to keep out of Australia. Once we have any diseases, weeds or feral animals in the country the eradication is near impossible. Much, much easier to keep them out in the first place rather than sell out our standards for a few shekels of short term gain.
Agribuzz with David LeyonhjelmCommentary, news and analysis with agribusiness consultant David Leyonhjelm. Email David at


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