Chapter 5
Exemptions from certain commonwealth legislation
Freedom from other Acts
5.1 The Bill ensures that the effects of forestry operations under a RFA will be disregarded for the
purposes of “… specified `trigger' sections of the Australian Heritage Commission Act 1975, the
Environment Protection (Impact of Proposals) Act 1974 and its related administrative procedures,
and the World Heritage Properties Conservation Act 1983.” [1]
5.2 According to the Bills Digest the Bill has the effect of not providing protection for World Heritage
areas under section 6 of the World Heritage Properties Conservation Act 1983 if an RFA is in place.
However, in the Tasmanian RFA protection of “World Heritage values” is specified. In respect to the
West Gippsland and Central Highlands RFAs, “ … any future World Heritage nomination will be
achieved from within the CAR Reserve System.” [2]
Support for exemptions from the other Acts
5.3 It has been argued that the Bill is based on the “very logical assumption” that the requirements of
Commonwealth environmental legislation are fully considered and incorporated into each RFA. This view
holds that:
There would be no point in concluding a Regional Forest Agreement and then starting
again on, say, a national estate assessment of the region. The comprehensive nature of
the RFA process ensures that the requirements of all Commonwealth legislation are met.
[3]
5.4 According to the Tasmanian State Office of the Forest Protection Society the Bill will affirm the
detailed assessments carried out to achieve Regional Forest Agreements. The Society is of the view that
the assessments resulted in the creation of “comprehensive, adequate and representative reserves”. With
the reserves in place the Society considered:
(b) Approved procedures under section 6 of the Environment Protection (Impact of
Proposals) Act 1974
(c) Section 11 of the Environment Protection (Impact of Proposals) Act 1974, and
5.5 The Forest Protection Society expressed the view that an RFA would be of only marginal value if
other pieces of Commonwealth legislation could override provisions of the Agreements. [5]
5.6 The submission from Boral Timber advised that the uncertainly created by the potential political use
of other environmental legislation has been a:
… major factor in constraining forest investment. The benefits of the RFA process to
industry development and regional economies will not be received unless the RFA
legislation removes the application of these Commonwealth powers. [6]
Opposed to exemptions from the other Acts
5.7 According to the WA Forest Alliance:
The exemption of RFA forestry operations from the Australian Heritage Commission Act
1975, the Environmental Protection (Impact of proposals) Act 1974, the World Heritage
Properties Conservation Act 1983 would lock Australia into a position and values that
are already outdated….
To exempt RFA wood and RFA forestry operations from Commonwealth laws and
regulations is to abrogate Commonwealth power and responsibility in defiance of even
current scientific knowledge and community opinion, let alone the knowledge and opinion
of 20 years hence. [7]
5.8 The Aboriginal Legal Service of WA told the inquiry:
The Commonwealth has a constitutional responsibility to ensure that States or Territories
meet, and continue to meet, Australia's international obligations and to ensure that
Australia has effective heritage and environmental protection laws.
The Federal Government is failing to adequately take responsibility for indigenous affairs
including environmental and indigenous heritage matters. The current heritage and
environmental legislation forms an avenue of last resort in situations where State and
Territory laws fail to properly protect sites or areas. It is important that this final avenue
of protection is retained. [8]
5.9 The Otway Ranges Environment Network told the inquiry that it considers that there is strong
evidence for the view that RFAs have not adequately protected native forests from commercial
exploitation and that “… the removal of existing Commonwealth legislative controls would clear the way
for exploitation on a greater scale.” [9]
Freedom from export controls
5.10 The Bill also prohibits the application of export controls imposed under the Export Control Act
1982 for processed and unprocessed wood obtained from a region where an RFA is in operation. [10]
This exemption will extend to wood sourced from a plantation unless the “… relevant State code of
practice is not approved under the Export Control (Unprocessed Wood) Regulations.” [11]
5.11 The Bills Digest noted:
The Commonwealth has reduced its powers even further under the RFA process by
giving an undertaking to remove controls on export woodchips from an RFA region. The
Export Control (Regional Forest Agreements) Regulations of April 1997, under the
Export Control Act 1982, means that a Commonwealth export licence is no longer
needed to export hardwood woodchips and other unprocessed wood from an RFA
region. [12]
In support of removing export controls
5.12 The NAFI is a strong supporter of removing export controls. The Association is of the view:
Woodchip export controls have been spectacularly unsuccessful from both environmental
and economic perspectives. The ceiling placed on woodchip exports has limited the
market for forest residues. It has lead to the waste and burning of excess low grade
wood and, thinnings and sawmill residues which could otherwise have been sold on
export markets bringing substantial revenue back into the forest management and
conservation programs.
The enforced lack of export markets has also been a major deterrent to investment in
and management of private forests as it has artificially depressed the price of pulpwood
and residues within the Australian market. [13]
5.13 The Forest Industries Federation of WA welcomed the proposal to remove export controls.
According to the Federation:
Export Controls have limited the forest industry in its ability to effectively utilise waste
wood and have been ineffectual both environmentally and economically.
Australia once held 60% of the Japanese market for woodchips, although during the
period of restrictions on exports Australia's market share has reduced to 30%. … It can
be expected. that if export controls were lifted Australia has the potential to significantly
increase its share in the Japanese market. [14]
The Association went on to state:
During the period of operation of export controls, Australia's share of the lucrative
Japanese woodchip market has fallen from over 60% to around 30%, at substantial cost
to Australia's national and regional economies. [15]
Opposed to the removal of export controls
5.14 The Friends of the Earth branch in the Southern Tablelands of NSW is of the view that the removal
of export controls will “open the floodgates for the woodchippers”. [16]
5.15 It has been argued that the decision to remove export controls, as set on in clause 5 of the Bill, on
woodchips from an RFA region by the Commonwealth Government reduces the Commonwealth's role in
environmental impact assessment. [17]
Transfer of powers to States
5.16 A number of submissions raised objection to what they saw as a transfer of control over native
forests from the Commonwealth to the States as a result of the Bill. Many of these submissions believed
such a transfer would result in a loss of accountability and safeguards for the forests. [18]
5.17 The Forest Campaign Group told the inquiry that it was convinced that the State Governments
could not be entrusted to implement satisfactory forest conservation. The Group insists:
The Commonwealth must remain active in the important task of conservation, particularly
forest conservation. Unfortunately the purposed Commonwealth Regional Forest
Agreements Bill 1998 passes responsibility from the Commonwealth to the States, these
same States with a demonstrated track record of irresponsibility in forest conservation.
[19]
5.18 Mr Christopher Tipler of the Otway Ranges Environment Network submitted that:
… the Commonwealth, in stepping back from total control of native forests in Victoria, is
effectively ceding 100 per cent control to the state government and to the DNRE, an
organisation that exhibits very little genuine understanding of forest ecology and that has
demonstrated by its own actions that it cannot be trusted to manage the forests in an
ecologically sustainable way. In our judgment, that would be a tragic outcome of this
legislation. [20]
5.19 The Aboriginal Legal Service of WA recommended:
The Commonwealth should not devolve its responsibilities to the States and Territories. It
should take overall responsibility in these areas and should instead determine a legislative
and policy framework that ensures uniform standards for environmental and heritage
protection and management throughout Australia. [21]
5.20 In its evidence to the inquiry during the public hearing in Melbourne Ms Jacqueline Brienne, Legal
Research Officer with the Aboriginal Legal Service in Western Australia, set out the concerns of the
Service regarding provisions of the Bill, particularly clause 5. Ms Brienne submitted that it is improper to
remove Commonwealth heritage and environmental protection from areas covered by regional forest
agreements. [22]
5.21 Ms Brienne also argued that it is “… quite premature to be considering this bill given that it is
impossible at the moment to consider what heritage and environmental protections will exist in place of
these key pieces of Commonwealth legislation, particularly when only a few regional forest agreements
have yet been finalised, and when nearly all the relevant Commonwealth and state legislation in heritage
and environmental protection is either under review or is actually in the process of being repealed or
replaced.” Ms Brienne went on to state, “… parliament is being asked to approve all future Regional
Forests Agreement processes before they have actually been undertaken, without any scrutiny of what
will apply in the absence of these protections.” [23]
5.22 Later in her evidence Ms Brienne commented:
… World Heritage Properties Conservation Act and the Environmental Protection
(Implementation of Procedures) Act, are due to be replaced by the Environmental
Protection (Biodiversity) Conservation Act, which is also before parliament. That act in
itself provides that it does not apply to Regional Forest Agreement areas, so I would ask
whether there was a point in having those included in this bill and that bill when they are
both before parliament. If the biodiversity bill is passed, the acts referred to in clause 5
will not actually exist. [24]
5.23 In contrast to the comments critical of the transfer of forest management to the States from the
Commonwealth the submission from North Forest Products argued that control of forest management
should go back to the States “where it was always meant to be”. [25]
5.24 Mr Allen Grant of the Commonwealth Department of Agriculture, Fisheries and Forestry explained
to the inquiry:
The forestry activities within the state are bound by the provisions of the state legislation
and regulations. Nothing in the Commonwealth legislation can take away the provisions
of state legislation or regulation at all, and in fact the RFA is built around the continuing
existence of that state legislation and regulation. The ESFM principles in the RFA take
acknowledgment of the regulations and legislation that currently exist in the state that
control the management of forests, so the RFA is conditional in a sense on those
regulations and legislation still applying to forest management. [26]
Interaction of Commonwealth and State environmental legislation
5.25 During his evidence to the inquiry Mr Robert Pearce of the Forest Industries Federation of Western
Australia stated that while he was Environment Minister in the WA Government he had “… spend a lot
of time dealing with the Commonwealth government on the issue of double jeopardy in terms of
environmental assessments.” Mr Pearce went on to note:
All this bill does is actually carry forward the principle I worked for 10 years ago; that is
to say, once there has been a process agreed that gets an environmental assessment for
what is being done, then the other government, whichever it be, ought not to be too
interfering with that. This is done on that same sort of agreed basis and in fact by
legislation of the Commonwealth parliament. It seems to us a reasonable thing that there
should be a single clear environmental assessment. [27]
5.26 In response to the comments by Mr Pearce the Commonwealth Department of Agriculture,
Fisheries and Forestry explained that:
… once the outcomes of the RFA process, and the process itself, are assessed as
meeting all Commonwealth legislative obligations and an RFA is then signed, the RFA bill
provides exemptions from such obligations during the time that RFA is in force. State
environmental legislation, however, will continue to apply; a fact that is taken fully into
account during the RFA process (for example, existing State environmental laws and
other obligations are taken into account when ensuring ecologically sustainable forest
management practices and systems are in place for the region during the operation of the
RFA. [28]
Footnotes
[1] House of Representatives Hansard, 26 November 1998, p. 612.
[2] Department of the Parliamentary Library, Bills Digest No. 50 of 1998-99, p. 9; see also
Submission, Dr Geoff Mosley, p. 1. CAR stands for comprehensive, adequate and representative forest
reserve system. Dr Mosley proposes to delete section 5(3) (d) from the Bill. This section provides for
forests with world heritage values to be exempt from section 6 of the World Heritage Properties
Conservation Act 1983.
[3] Submission, NAFI, pp. 4-5.
[4] Submission, Tasmanian State Office of the Forest Protection Society, p. 2.
[5] Submission, Forest Protection Society, p. 6.
[6] Submission, Boral Timber, p. 2.
[7] Submission, WA Forest Alliance, p. 2; see also submissions from: Friends of Mallacoota Inc., p. 2,
Amcor Green Shareholders Strategy Committee, p. 3, Kim Devenish and Julie Constable.,
[8] Submission, Aboriginal Legal Service of WA, p. 5.
[9] Submission, Otway Ranges Environment Network, p. 1.
[10] House of Representatives Hansard, 26 November 1998, p. 612: see also Regional Forest
Agreement Bill 1998, Explanatory Memorandum, p. 3.
[11] House of Representatives Hansard, 26 November 1998, p. 612.
[12] Department of the Parliamentary Library, Bills Digest No. 50 of 1998-99, p. 6.
[13] Submission, NAFI, p. 3.
[14] Submission, Forest Industries Federation of WA, p. 4.
[15] Submission, NAFI, p. 4.
[16] Submission, Southern Tablelands NSW Branch of the Friends of the Earth, p.4. Mr Ian C
Matthews in his submission to the inquiry called for a Royal Commission into the woodchip industry.
Other objections to the removal of export controls from RFAs were set out in the following submission:
South Coast Environment Group, p. 3.,
[17] Department of the Parliamentary Library, Bills Digest No. 50 of 1998-99, pp. 6, 8.
[18] See the following submissions: Environment Victoria Inc., Ms Helen Curtis, Mr Peter Curtis, Mr
John Card, B Pullen, Ms Judith Rutherford, Ms Mariane Contant, Ms Helen Goedemoed, Helen and
Jean Orams, E L Minifie, Richard and Alison Harcourt, Mrs A Dillon, Mr Richard Barlow-Clifton, Jenna
Rose, Mr David Cook, M H Kelso, p. 1, Ms Janice Sagar, Mr Steve Doyle. See Evidence, Tarkine
National Coalition pp. 105-106.
[19] Submission, Forest Campaign Group, p. 1. During the Committee's public hearing in Melbourne,
Senator Brown argued that the Victorian Government had made changes to environmental areas after an
RFA was signed. Mr Grant of the Commonwealth Department of Agriculture, Fisheries and Forestry
rejected this view stating “My understanding, Senator, was that the changes the Victorians made to their
legislation did not impact on the RFA.” Evidence, Commonwealth Department of Agriculture, Fisheries
and Forestry, p. 218.
[20] Evidence, Otway Ranges Environment Network, p. 121.
[21] Submission, Aboriginal Legal Service of WA, p.6. In its submission the Legal Service described
what effect clause 5 of the Bill will have on areas covered by the Australian Heritage Commission Act
1975, World Heritage Properties Conservation Act 1983, and the Environment Protection (Impact
of Proposals) Act 1974, see Submission, Aboriginal Legal Service of WA, pp.6-7.
[22] Evidence, Aboriginal Legal Service of WA, p. 186.
[23] Evidence, Aboriginal Legal Service of WA, p. 186.
[24] Evidence, Aboriginal Legal Service of WA, p. 186.
[25] Submission, North Forest Products, p. 2.
[26] Evidence, Commonwealth Department of Agriculture, Fisheries and Forestry, p. 217.
[27] Evidence, Forest Industries Federation of WA, p. 171.
[28] Letter to the Committee, dated 16 February 1999, from Mr Peter Yuile, First Assistant Secretary,
Fisheries and Forestry Industry Division, Commonwealth Department of Agriculture, Fisheries and
Forestry, p. 2.