The Biosecurity Act 2014, which commenced operation on 1 July 2016, has fundamentally changed the way pest issues should be dealt with, moving away from prescriptive methods to focussing on outcome based solutions. For local governments, developers and contractors in South-East Queensland, this means greater site due diligence and surveillance should now be undertaken.
Local governments have broader ways to deal with biosecurity measures but developers and contractors must be operationally aware or developments may, effectively, be quarantined. The primary biosecurity threat at present is the fire ant and if it continues to spread, it may have far reaching impacts on our recreation, but also the length of time needed to develop sites.
Biosecurity is not normally associated with planning, development and construction matters. Even so, it has some relevance to operational matters which are routinely dealt with by local governments such as maintaining parks and sporting fields. However, changes to pest and land management legislation have potentially changed this landscape.
Biosecurity matters may lead to significant changes about how construction sites are managed, most notably the stockpiling of soil. However, clearing sites and allowing them to sit for any lengthy period will also have to be better managed. Further, the use of hay bales for erosion and sediment control purposes (a practice that is no longer widely recommended), the introduction and laying of turf, and in the final stages of the development - the use of compost and mulch, may now require greater management.
The general biosecurity obligation
Under the Biosecurity Act 2014, if a person knows or ought reasonably to know that a biosecurity matter or carrier or activity poses or is likely to pose a biosecurity risk, they are obliged to take all reasonable and practical measures to prevent or minimise the biosecurity risk.
Not complying with the general biosecurity obligation carries significant penalties as well as the possibility of imprisonment.
While there are a number of relevant biosecurity threats, this article uses the fire ant threat to illustrate the changes to legislation.
5 key takeaways for local government
To demonstrate compliance with the general biosecurity obligation in the Biosecurity Act 2014, but most importantly to prevent fire ants from spreading, local governments should consider:
1. Imposing conditions in development approvals (particularly for operational works) regarding:
- surveillance of land for fire ants, particularly during winter;
- restricting the clearance of land other than in stages for more than 28 days unless other steps are undertaken to prevent fire ant infestation which may include notification to Biosecurity Queensland; and
- requiring stockpiles of soil, mulch and compost to be disturbed at least every 28 days.
2. Including a notation on development approvals about the need to comply with the Biosecurity Act 2014 and the Biosecurity Regulation 2016.
3. Giving Council lessees or potential lessees of high risk sites (e.g. sporting fields) information about the risks associated with accepting material for, say, top-dressing or mulch from sources that are not verified as complying with the Act, and incorporating an appropriate clause in the lease dealing with that topic.
4. (For external contractors) including clauses into contracts that not only make non-compliance with the Act and the Regulations a breach of the contract, but also require:
- general fire ant awareness training;
- disturbance of stockpiles or chemical treatment; and
- inspection of machinery before and after material is delivered.
5. Developing procedures where inspections by Council staff of sites before material is delivered and inspection of machinery become standard practice. In reality, this inspection for fire ants will usually be an extension of routine inspections carried out for other matters including the quality of the material.
4 key takeaways for private industry
To demonstrate compliance with the general biosecurity obligation under the Biosecurity Act 2014, private industry should consider:
1. Including as a matter of course, during purchase and then development, due diligence of sites near or in fire ant biosecurity zones.
2. Having ALL staff undertake general awareness training.
3. Conducting regular surveillance of their sites, particularly once cleared and particularly in winter.
4. Notifying Biosecurity Queensland with respect to larger sites or sites that are exposed (even grassed) for more than a month in high risk areas. Biosecurity Queensland may decide to increase its surveillance of that area.
The Biosecurity Regulation 2016
The Biosecurity Regulation 2016 generally sets out, for particular matters, how the Biosecurity Act 2014 is implemented and applied.
Chapter 5, part 5, divisions 1 & 2 of the Biosecurity Regulation 2016 specifically deals with moving soil and fire ant carriers in, within and outside fire ant biosecurity zones.
The list of suburbs within the zones is extensive, and local government, developers and construction companies should become familiar with them.
The regulation specifically deals with fire ant carriers, which include:
- baled hay or straw;
- material that is a product or by-product of mining or quarrying (for example, chitters, coal fines, coal stone, decomposed granite, gravel, overburden);
- material that is a product or by-product of the processing of an animal, or something that comes from an animal (for example, solid waste produced by processing an animal at an abattoir, animal manure);
- material that is a product or by-product of the processing of a plant, or something that comes from a plant (for example, mulch, sawdust, green waste, compost);
- a potted plant;
- soil (including clay, fill, scrapings and any material removed from the ground at a site where earthworks are being carried out, such as building, rubble and rocks); or
- a thing that has soil, or an organic coil substitute, attached to it (for example, turf, an advanced plant with soil on its roots that has been removed from the ground for re-planting, or an appliance that soil or another growing medium is attached to).
Special risk fire ant carriers include animal manure, baled hay or straw, mulch, potted plants and turf.
When it is sought to move these carriers into, within or outside fire ant zones, reasonable steps must be taken to ensure that the carrier is kept in accordance with the Regulation or a Biosecurity Instrument Permit (BIP), authorising another way in which to deal with the carrier or matter.
Unless a BIP authorises otherwise, special risk fire ant carriers being kept in a fire ant biosecurity zone for at least 24 hours must be kept in accordance with the Regulation and be kept, for example:
- under shade cloth or tarpaulin;
- above ground level (for example in a truck or trailer or on an elevated platform); or
- at ground level on a fire ant resistant surface. For example, the area has a sheeting at least 200 microns thick or on compacted ground which has been treated with chemical to form a barrier with a 30cm wide chemical perimeter around the area.
Given the purpose of the fire ant regulations and the threat that fire ants pose, not only to the economy of the region but the sub-tropical way of life, it is likely that these regulations will be strictly interpreted by the Department of Agriculture and Fisheries, Biosecurity Queensland and the Courts. This means that “move” may include where material is excavated on-site and stockpiled.
Clearly, some of the steps outlined in the Regulation will not always be practical to implement (and a BIP will be necessary), but the general biosecurity duty may be able to be satisfied by undertaking other measures such as regularly disturbing stockpiles of fire ant carriers whether in a fire ant biosecurity zone or not.
Some BIPs issued by the Department have required the turning of soil stockpiles every 28 days so this timing appears to be a good benchmark for when stockpiles should be disturbed or inspected.
What are the characteristics of fire ants?
To understand what steps are reasonable to take, an understanding of the fire ant is necessary.
Fire ants build a dirt nest or mound, which can be up to 40 cm high. An unusual feature of the mound is that it has no obvious entry or exit hole. The ants enter and leave the mound via underground tunnels which radiate outwards from the nest. These tunnels can be up to 30 m long.
Nests can also develop under logs, rocks or other materials lying on the ground. Fire ants appear to have an attraction to electricity, and nests have been found in buildings and equipment around electrical systems. Fire ants also find construction sites attractive places to relocate to, or excavation works may cause the fire ants to relocate. The queen can fly up to 2 km.
Fire ant mounds are typically more visible in winter because the ants build the mounds higher to attract more heat. Surveillance for fire ants may therefore be more effective if undertaken during winter. This is important because construction sites are often more likely to be left exposed in winter because it is the dry season in South-East Queensland and erosion and sediment control issues may not be given a high priority. However, leaving a site exposed in such a way may entice the fire ant to settle.
What are the consequences of failing to detect fire ants?
Once fire ants have been identified, the site is effectively quarantined and will remain so for an eradication period, which is typically three months. There is at least one development site in South-East Queensland where fire ants have been found. Obviously, if development is stopped for at least 3 months this can have serious commercial consequences.
The potential commercial consequences could equally apply to a local government which is carrying out infrastructure works - a finding of fire ants may disrupt those works for a significant period. Depending on the nature of the infrastructure and when and where those works are occurring, this could also disrupt traffic or the provision of community services.
Similarly, if a park or sporting field is infested, that area cannot be used by the public. This can have serious community impacts, especially on local sporting groups, particularly if players do not renew their memberships. Sporting fields operated by lessees may be susceptible to infestation where clubs may not be stringent when acquiring materials. For example, a club may accept topsoil from a member or associates of members who are not familiar with the Biosecurity Act 2014 and its obligations. Depending on the sophistication of the club, a stockpile of top-dressing may sit for a time until the members have a working bee.
It is an offence not to report the presence of a fire ant to an appropriate authorised officer, but at this stage it is in the interests of everyone to act co-operatively act with one another. However, if there are systemic accountability problems with suppliers, monitoring of materials and management of them on-site, the punishment may be severe.
Whether areas in their jurisdiction are within the fire ant biosecurity zones or not, local governments in South-East Queensland should approach this issue holistically, and focus on procurement, planning, oversight of leased areas, management of Council land and operational surveillance.
Developers and contractors should undertake due diligence when purchasing sites in or near fire ant biosecurity zones and especially near areas where fire ant nests have been detected within 2 km of a potential development site.
Standardised training of all staff including engineers, superintendents and contractors by Biosecurity Queensland should be implemented as a simple measure to help satisfy the general biosecurity obligation. Another example of a relevant measure is the inspection of machinery, particularly trailers that have been used to deliver fire ant carriers, on-site before and after the load is deposited.
Sites should also be regularly inspected for signs of fire ants. If the site is to be cleared for more than 28 days, then, as a proactive measure with regulatory authorities, Biosecurity Queensland should be informed. Upon such advice and particularly if the site is located in a high-risk area, that agency may decide to increase its surveillance of the area which may be by a range of measures including aerial surveillance and sniffer dogs.
It is in the best interests of all stakeholders to co-operate so that biosecurity threats are eliminated from South-East Queensland.
For now, the Department is likely to be primarily concerned with taking appropriate steps to identify and kill the fire ant. Should a local government, developer or contractor repeatedly come across fire ants on their sites or be proven to move fire ants in circumstances where not all reasonable steps have been taken, we suggest that enforcement action will be severe and the penalties sought will be in the high range (perhaps even imprisonment up to 3 years).