Labor Senators thank those that provided evidence or made a submission to this inquiry and notes the concerns raised by forestry, industry and environmental stakeholders.
The Private Senators’ Bill was brought about after a decision of a single judge of the Federal Court, in Friends of Leadbeater’s Possum Inc v VicForests (No 4) [2020] FCA 704, in which the Court found that whilst operations in accordance with RFAs are exempt from provisions of the EPBC Act, VicForests’ forestry operations were not conducted 'in accordance with' an RFA, and therefore were no longer exempt from provisions of the EPBC Act.
The Explanatory Memorandum to the bill states that the Federal Court decision has created ambiguity in relation to the operation of RFAs, thereby requiring 'necessary' amendments to subsection 38(1) of the EPBC Act and section 6(4) of the RFA Act to clarify the meaning of forestry operations covered by Regional Forest Agreements for the purpose of those provisions.
VicForests appealed this decision. The Full Court of the Federal Court upheld that appeal on 10 May 2021, thereby obviating any basis for the bill to be passed given the current state of the law.
Labor Senators note the unusual circumstances in which this bill has been introduced, in that it was brought as a private Senator’s bill, from a Government Senator, rather than by the Minister. Labor Senators further note commentary from the Minister for the Environment that this bill is not in line with government policy, and the Assistant Minister for Forestry and Fisheries’ statement that the appeal should be allowed to run its course.
Labor Senators are strongly of the view that the Morrison government is responsible for providing certainty to the forestry sector and conservationists about the exclusion from the operation of the EPBC Act where an RFA exists.
That is especially the case if the parties seek to place the recent Full Court appeal decision before the High Court of Australia.
Indeed, industry participants and conservationists would be well within their rights to ask why the Ministers concerned, on behalf of the Morrison government, have not stated the path forward, and instead have left the matter to be taken up by a Senator who is not a Minister, let alone a Minister with portfolio responsibilities.
Further, the government is yet to provide a formal response to the recent independent statutory review of the EPBC Act.
They should already have done so, and they must attend to it urgently. In that response, the Morrison government should produce a sensible and holistic roadmap for reform, including any reform needed to provide certainty in relation to forestry. Labor Senators are of the view that EPBC reform should not proceed in an ad hoc, unconsidered, piecemeal manner, by way of a private senator’s bill, given the significance of the nation’s environmental laws and the importance of getting reforms right.
Recommendation
Labor Senators recommend that should there be issues that arise from any further challenges in relation to RFAs and the EPBC Act, then they should be dealt with by the Morrison government in a considered way, as part of comprehensive reform to environment laws.
Recommendation
Labor Senators recommend that the Morrison government take responsibility for providing certainty to the sector and not leave significant environmental law reforms to be dealt with by private senators’ bills from outside the Ministry.