Fire Ants

Hon Anthony Perrett

Minister for Primary Industries

1 William St

Brisbane 4000

Dear Sir

Fire Ants

I write to you at the request of the Council’s executive concerning the powers in place to deal with fire ants.

This letter is prompted by two things. An incident where Authorised Officers, accompanied by police, forcibly entered an agricultural property to spray fire ant pesticide. Our correspondent is the occupier. He refused to open the gate when requested and held it shut. When the officers broke open the gate his hand was injured.

A member of the Council who resides on acreage in the Moreton Bay Area, reports that  prior to the property being visited by officers, they typically receive a basic notice similar to “your property will be treated for fire ants within 14 days” with no estimated date or time window; following the visit, a notice is provided stating fire ant treatment action has been taken. No visual confirmation is provided that fire ants exist on the property to necessitate entry and treatment.

(a)       Factual Background

We accept the following facts

Fire ants are an invasive species from South America. They are thought to have entered Australia through the Port of Brisbane in 2001, likely originating in the Southern United States. The 2001 outbreak, and several occurring since, are thought to have been eradicated. The present outbreak in Queensland and NSW is the worst on record in Australia with forecasted impacts of $45B in Southeast Queensland alone if the problem is not addressed.

Fire ants are highly aggressive and omnivorous. They attack in swarms and employ a venomous sting. They have been known to kill large livestock such as cattle. They threaten nesting native birds, frogs, reptiles and insects. They also attack humans causing extremely painful welts. Anaphylaxis is a risk of fire ant stings, with 85 deaths on record.

The organisms are considered to be one of the worst invasive species on the planet.

Every jurisdiction save the ACT has some form of power to enter and inspect a property without a reasonable suspicion.

(b)       Queensland law

Authorised officers can enter ‘a place’ for various reasons under s 259(1)[1]; one of which is to ‘take any action authorised under a biosecurity program’ (s 261). It is clear that no reasonable suspicion is required, because the phrase is absent from s 261, but present in other provisions dealing with entry powers, such as s 260.

The power to enter premises is contingent on the officer, before entering the place, making a reasonable attempt to locate an occupier and obtain the occupier’s consent to the entry - sections 269-271 of the Biosecurity Act 2014

It is an offence of 100 penalty units ($16,690) to obstruct an authorised officer without a ‘reasonable excuse’ (s 336).

A concerning aspect is that there is no express limit on what authorised officers can do while on a property. That is to say, they can do whatever the program says they can do

(c)       Victorian law

The Victorian Act functions much in the same way as the Queensland Act, but provides for a 7-day notice period before entry and requires more invasive powers to be exercised under a warrant

Under the Victorian Act:

(a)               Authorised officers can enter property without a reasonable suspicion, but they must give 7 days’ notice; and

(b)               Officers must produce evidence of appointment upon request.[2]

(c)               But powers to seize and destroy (as opposed to inspect) can only be exercised under a warrant.

Once on the land, the officer may search, take photographs and samples and ask questions.[3]

For more serious acts, such as the seizure and destruction of plants and animals, the entry must have been affected with a warrant.[4]

(d)       Rights in Issue

Acknowledging then that the government has a legitimate interest in combating fire ants, that interest must be weighed against the fundamental interests protected by the right to privacy and particularly access to private property in the form of a person’s house.

We accept that while property rights are important, the value and enjoyment of property would be greatly diminished if fire ants were allowed to infest private property

However, it is possible that we are stuck with fire ants and must manage them. If this is so, under this legislation authorised officers along with police will have cart-blanche to search premises perpetually, so long as orders permit them.

We would also submit that the untrammeled power to search, along with the police involvement, likely diminishes faith in government and therefore willingness to co-operate in the eradication of fire ants and other beneficial public aims. Public co-operation is necessary to achieve the goals of the scheme.

The reduction in faith in government caused by the extreme powers used during Covid clearly illustrates the concerns that we submit the government should have about the long-term existence of these powers.

That said the Council submits that the Victorian regime provides a better balance of the rights of citizens and the interest of the community in combating fire ants.

We submit that the government should review the legislation with a view to moving to laws closer to the Victorian legislation

We look forward to receiving your views in response.

[1] section references are to Biosecurity Act 2014 (QLD)

[2] Section 79A.

[3] Section 81.

[4] Section 83(2)(iv) and s 83(2)(c).