REGIONAL FOREST AGREEMENTS BILL
1998
MINORITY REPORT BY OPPOSITION SENATORS FORSHAW, O'BRIEN AND MURPHY
INTRODUCTION
The Regional Forests Agreements Bill 1998 is intended to fulfil the Commonwealth's obligation to
provide a legislative and regulatory framework for the operation of Regional Forest Agreements (RFA's).
When the Bill was first referred to the Senate Rural & Regional Affairs Committee in December 1998 the
Government insisted that the Committee report by 15 February 1999. The Opposition requested that a
greater length of time be allowed to enable more time for public hearings and proper consideration of the
legislation and related issues. This request was rejected and the Government claimed that the legislation
was urgent and needed to be considered by the Senate as soon as it resumed in February 1999.
Subsequently, the Government did not introduce the Bill into the Senate as earlier indicated and
proposed an extension of the reporting date to 24 February. This was necessary because the Committee
was awaiting legal advice from the Department and Attorney-General's in response to constitutional
issues raised by certain witnesses.
The Opposition Senators note that the Government has further delayed introduction of the Bill into the
Senate. The Government's attitude regarding the Inquiry is most unsatisfactory and it is a matter of regret
that they did not allow further time for the public hearings and Committee consideration as was originally
suggested by the Opposition.
In this respect it should be noted at the outset that this Bill will, if enacted, exempt (or disapply) the
operation of other important Commonwealth legislation on the environment and heritage in areas where
RFA's are applicable. We deal with this issue later in this report.
The Opposition has considered the proposed legislation and the evidence and submissions presented to
the Committee. We strongly support the RFA process which was initiated under the previous Labor
Government. We support passage of the Bill subject to consideration of the issues raised in this minority
report and appropriate amendments that we will present when the legislation is debated in the Senate.
BACKGROUND
The Regional Forests Agreements Bill 1998 is an essential legislative component of the process of
developing Regional Forests Agreements (RFA's) in accordance with the principles and objectives set
out in the National Forest Policy Statement signed by the Commonwealth and State and Territory
Governments in 1992.
The National Forest Policy Statement was designed to bring about a more acceptable and less
acrimonious regime of managing Australia's native forests so as to ensure protection and enhancement of
their environmental, heritage, economic and social values.
The eleven broad national goals of the National Forest Policy Statement are set out in Chapter 3 of the
majority report. In particular the Governments acknowledged:
…that a variety of uses of public native forests is desirable, provided those uses comply
with the principles of ecologically sustainable development. The objective here is the
management of public native forests so as to retain the full suite of forest values over time.
[1]
Because these values have often been in competition in the past the Statement identified four agreed
approaches to forest management namely:
- The Governments will set the regulatory framework for the use of native forests in order to
achieve social and environmental objectives. Within those constraints, market forces should
determine the extent of resource use and the nature of industry operations, within the
parameters of government policy.
- Commercial uses of forests (including wood production) that are based on ecologically
sustainable practices are appropriate and desirable activities. In this context, the
establishment of plantations for wood production should be determined on the basis of
economic viability and international competitiveness.
- The Governments will seek complementary management of forests for all uses through
integrated strategic planning and operational management across agencies with
responsibility for forests in Australia.
- There should be a sound scientific basis for sustainable forest management and efficient
resource use. [2]
EVIDENCE TO THE COMMITTEE
The Committee received over 370 written submissions and heard evidence from 42 persons during two
days of hearing in Melbourne on 1 and 2 February 1999.
Witnesses appearing before the Committee included representatives of the Department of Agriculture,
Forestry and Fisheries; The Honourable Paul Lennon, Deputy Premier of Tasmania and Minister for
Infrastructure, Energy and Resources; industry representatives; state and regional conservation and
environment organisations; community groups; aboriginal legal and cultural associations; trade unions and
a number of private citizens and persons with particular forestry, environment and/or legal expertise.
A further hearing took place in Canberra on 16 February when evidence was received from the
Australian Conservation Foundation and also from the Attorney-General's Department in response to
legal and constitutional issues raised at the earlier hearings.
The views expressed by the various witnesses and in the submissions are adequately outlined in Chapters
4, 6 and 7 of the majority report. In summary the industry representatives supported passage of the
legislation unamended. In particular they argued that industry had participated in the process of forest
assessment and negotiating RFA's and therefore they were entitled to the resource security and legislative
support in accordance with the principles of the National Forest Policy Statement.
This view was supported by the Deputy Premier of Tasmania, Mr Paul Lennon, who stated:
… this is the 28th inquiry into Tasmania's forests, so we have been fairly well looked
over, and this is the 15th time that the federal parliament has had a look at our forests. In
that context as far as we are concerned this was just another stepping stone towards
getting a proper balance between environment, conservation and development issues. …
As I indicated in the opening remarks that I made, we have announced the forestry
growth plan. We have got involved in the regional forest agreement process in the hope
that we can resolve the land tenure issues which have been particularly divisive in
Tasmania, especially over the last 10 years, so that we could say to investors that the
area of Tasmania that has international or national significance as determined by the
scientists has been protected and what is available is there for industry on a sustainable
basis. That is an important selling point for us in attracting investors to Tasmania so that
we can better downstream our forestry source than we currently do.
The industry growth plan has a strategy within it where we hope to attract to Tasmania
national and International investors, particularly in the reconstituted products
market—laminated veneer lumber and medium density fibreboard. We are also looking
at the development of wood merchandising yards which will enable us to better segregate
timber from our native forests and therefore get better utilisation of our native timber
harvested in Tasmania as well.
We have not got much hope of being able to attract investors into the forest industry in
Tasmania if we cannot given them security of resource. For us that is what the Regional
Forest Agreement is about. It is about providing security for the conservation values,
giving people assurances in the national and international community that Tasmania is
doing the right thing in regard to that—and we believe that we stack up now against
anyone else in the world—but on the other hand allowing us to develop what is one of
our most important industries. The forest industry along with the mining industry, the two
natural resource sectors, are the backbone of the Tasmanian economy. [3]
In contrast the various conservation and environmental groups were very critical of the RFA process and
the outcomes that had been reached in the RFA's finalised so far in Victoria, and Tasmania. They also
criticised the draft RFA's currently being finalised in Western Australia and NSW. In summary they
attacked the assessment processes as being inadequate and claimed that each of the RFA's would
threaten the future of native forests, fauna and, in some cases, specific areas of high conservation,
wilderness or and/or world heritage value.
Detailed criticisms were made of the RFA's negotiated to date and those currently being finalised but the
general thrust of the submissions and evidence was that any logging in native forests was anathema to
conservation principles and should be prohibited, however, the National Forest Policy Statement,
although promoting the protection of native forests and the development of plantations as an alternative
resource, does not prohibit logging in native forests. Rather the Statement specifically recognises that
native forests will continue to be a resource for the industry.
These groups opposed the legislation because it would allow the RFA process to continue with legislative
backing. Further they expressed concern that the States and industry would be able to ignore their
environmental obligations in the future due to the exemption provisions of Clause 5.
The Opposition Senators are mindful of these criticisms and the potential for the process to be abused in
the future. We also recognise that the National Forest Policy Statement gives a high priority to
“maintenance of an extensive and permanent forest estate…and the protection of nature conservation
values in forests”. [4] This is further reflected in the JANIS criteria which has a target of protecting at
least 60 per cent of old-growth forest identified at the time of assessment. [5]
The process of negotiating and implementing the RFA's has not been as co-operative and as harmonious
as intended, for instance, in Western Australia for instance, there is widespread opposition to the
proposed agreement and serious questions have been raised regarding the scientific assessment. Indeed
critical reports on the process and the State Department of Conservation and Land Management
(CALM) which is the lead agency, have been issued by the WA Environment Protection Authority
(EPA) and a standing committee of the WA Legislative Council.
However this does not mean that the legislation itself is fundamentally flawed and should not be enacted.
Rather, the RFA process relies upon objective scientific analysis and co-operation by all relevant
interests. The task is to ensure that the process works rather than simply abandon the process.
We believe that amending the Bill to provide for final scrutiny by the Federal Parliament through
disallowance provisions, will provide a mechanism to address many of these concerns.
EXEMPTION OF EXISTING COMMONWEALTH LEGISLATION
The specific provisions of the Bill are detailed in Chapter 3 of the majority report and also in the Bills
Digest No 50 1998-99. The Bill is only 8 clauses in length. The most important clause is Clause 5:
Certain Commonwealth Acts not to apply in relation to RFA wood or RFA forestry operations
(2) An export control law does not apply to RFA wood unless it expressly refers to RFA
wood. For this purpose, export control law means a provision of a law of the
Commonwealth (other than the 10 Export Control Act 1982) that prohibits or restricts
exports, or has the effect of prohibiting or restricting exports.
By virtue of this clause significant commonwealth legislation that has hitherto been used to regulate
forestry operations for the purposes of heritage and environmental protection and industry development
through the control of woodchip exports will no longer apply in areas where an RFA is in force.
The rationale behind this approach is appropriate given the overall intention to create a co-operative
approach to native forest management and protection and to avoid the problems of overlapping or
conflicting state and commonwealth legislative responsibilities. It is also consistent with the intention to
deal with forest management issues at the regional level rather than continue to be subject to bitter
political debate.
The protection of conservation and heritage values that currently exists by applying the legislation referred
to in Clause 5 will be enshrined in the RFA's themselves backed up by this Bill and complementary state
legislation.
However the Opposition, whilst not opposed to the approach adopted in Clause 5, is concerned that
RFA's actually comply with all the requirements and principles, (as defined in Clause 3 of the Bill), and
particularly those that would otherwise be covered by the exempt legislation. If the Federal Parliament is
going to exempt the operation of Commonwealth legislation that is intended to protect our environmental
heritage, international obligations, investment and employment security, then it must be confident that the
replacement regime is just as rigorous.
The Government pledged that this would be the case when the Minister stated in his second reading
speech:
I would emphasise that for any agreement to gain the benefits of this Bill, the
comprehensive and stringent definition of a Regional Forest Agreement contained in
clause 3 of the Bill must be met - and met in full.
As a matter of legislative principle therefore we believe that a disallowance mechanism should be
available to the Federal Parliament to ensure that the contents of an RFA meet the requirements of the
Commonwealth's obligations, the specific requirements of Clause 3 of the proposed legislation, and also
comply with the principles and goals of the National Forest Policy Statement.
We are particularly concerned that Clause 5 will provide exemptions to RFA's which are yet to be
finalised. To date 3 RFA's have been signed covering (1) East Gippsland in Victoria (2) Central
Highlands in Victoria and (3) Tasmania. Another 9 regions are the subject of negotiations and therefore
neither the Committee nor the Parliament will have any opportunity under the Bill as presently drafted to
examine them.
During the Inquiry the Department of Agriculture, Forestry and Fisheries took the following question from
Senator O'Brien on notice and referred it to the Australian Government Solicitor:
Can any of the three gentlemen at the table point to legislation of parallel or similar
form—that is, which provides for the supersession of Commonwealth legislation by an
agreement between the Commonwealth and another party and for compensation to other
parties arising out of that agreement without the detail being known at the time the
legislation is passed? [6]
In a detailed response the Australian Government Solicitor stated, inter alia:
I have not been able to identify any Commonwealth legislation the effect of which is
precisely analogous to the that of subclause 5(1) or (3) of the Bill, ie. legislation which
“disapplies” a broad range of other Commonwealth laws, and has as the precondition for
its operation the existence of an agreement (whether a pre-existing agreement or an
agreement that may be entered into in the future) between the Commonwealth and
another party. [7]
The Solicitor went on to refer to other legislation which operated in a similar manner to Clause 5 of the
Bill but which were considerably narrower in scope.
In regard to the compensation provisions contained in Clause 7 of the Bill the Solicitor also
acknowledged that:
I have not been able to identify any Commonwealth legislation specifically providing for
payment of compensation by the Commonwealth in accordance with compensation
provisions appearing in a Commonwealth-State agreement.
A full copy of the advice from the Australian Government Solicitor on these two clauses is attached as
Appendix 1 to this report.
During the hearings industry representatives expressed their opposition to RFA's, once signed, being
subject to further review by the Parliament. The Forest Protection Society stated:
This is the very kind of political action that the RFA process was designed to avoid and
would open the way to endless debate and political bargaining over the content of an
RFA. The losers would inevitably be the people in the communities whose livelihoods
would be the pawns in a purely political negotiation. [8]
Similarly North Forest Products expressed concern about Commonwealth interference:
… an amendment has been suggested that will involve a Parliamentary review of
completed RFA's. We believe that this move would drag the Commonwealth back into
the forest debate. This goes against the whole idea of the RFA, that is to hand control of
forest management back to the State where it was always meant to be. [9]
We believe that these concerns are unfounded and, further, are based upon a misinterpretation of the
Commonwealth's role in the RFA process.
Firstly, where an RFA has been properly negotiated, complies with the requirements and is supported by
both governments than they should have little fear of it being rejected.
Secondly, it is incorrect to suggest that the Commonwealth has handed total control of forest
management “back to the state where it was always meant to be.” Rather it is a co-operative approach
underwritten by both state and commonwealth legislation and including financial support. As stated earlier
the Commonwealth must ensure that its responsibilities are not negated by an RFA.
Thirdly, there is a time limit on a disallowance procedure in the Senate and hence it will not involve any
unnecessary delay.
Fourthly, positive support by the Federal Parliament for an RFA should assist industry and the states
particularly in respect to attracting investment capital.
Finally, there is already potential for political interference and delay as is evident by the attitude of the
Federal Minister, Mr Tuckey, to the agreements negotiated in NSW and given bi-partisan support by the
NSW Parliament. The current dispute between the Federal Minister and members of the WA
Government also demonstrates that ultimately politics will intrude into the issue of forest management.
WOOD AND PAPER INDUSTRY COUNCIL
The Opposition believes that the legislation should be amended to provide for the establishment of a
Wood and Paper Industry Council. This Council was originally proposed in the Wood and Paper
Industry Strategy by the previous Labor Government in 1995.
The establishment of the Council was supported in evidence given by the Construction, Forestry, Mining
and Energy Union who expressed their concerns that more needs to be done to develop a timber
industry based on downstream processing and value adding rather than just woodchips. They stated:
We would like to see the bill amended to cover the following issues. Firstly, we would
like to see the bill amended to ensure the establishment of a Wood and Paper Industry
Council under the original terms of reference that were outlined in the wood and paper
industry strategy and for that council to include a representative of the Standing
Committee on Forestry. We would like the bill to ensure that that council is properly
funded with a dedicated secretariat and adequate resources. We believe that regional
forest agreements as defined should be changed—regional forest agreements must have a
proper industry development plan which should be included in all RFAs.
We believe that regional forest agreements should include clauses that ensure the local
processors would have priority of resource over people interested in exporting
woodchips or sawlogs overseas. We also believe that, if established, the Wood and
Paper Industry Council should be given, as part of its role, the job of monitoring these
industry strategy clauses, if they are included, and the utilisation of wood under RFA
areas. That sums up the major concerns we have and changes we would like to see in the
bill.
As far as the union is concerned, the national forest policy statement aims to cover a
number of issues and this bill and the current RFAs cover many of the goals of the
NFPS. As far as we are concerned, with industry development, employment, utilisation
of resources to maximise employment—those sorts of areas—both the current RFAs
and the RFA Bill are deficient. [10]
The establishment of the Council with legislative support will also assist in ensuring that RFA's reflect the
objectives and principles required by the legislation and the National Forest Policy Statement. Moreover,
it will enable monitoring of the industry development and employment objectives.
We note that the majority report recommends that the Minister establish a Wood & Paper Industry
Council. Whilst this is welcome, we also note that the Government gave a pre- and post-election
commitment to establish the WAPIC, but never did. Therefore, the Opposition intends moving an
amendment to establish the Council through legislation.
Other Issues
There are a number of other issues related to the drafting of the Bill that Opposition Senators believe
need to be addressed by appropriate amendments.
Amendment of RFA
The Bill should reflect the common provision in Scoping Agreements that allow for amendment of an
RFA by mutual agreement between the Commonwealth and the State concerned. Such provision is
intended to deal with unforseen events such as fire or disease that may compromise the comprehensive,
adequate and representative character of an RFA at some time in the future.
Clause 5 Certain Commonwealth Acts not to apply in relation to RFA wood
or RFA forestry operations
If this Bill is passed there is a potential void between proclamation of this Bill as law and the later
enactment of the Government's Environmental Protection and Biodiversity Conservation Bill 1998.
During any such period there will be a reduced level of protection of Heritage areas.
Further, if the Environmental Protection and Biodiversity Conservation Bill 1998 is passed
unamended the standards of protection outlined in the two pieces of legislation will be different.
Therefore, there is a need for a transitional provision within this Bill and possible further amendment of
this legislation and the Environmental Protection and Biodiversity Conservation Bill 1998.
Clause 7 Compensation for Breach of an RFA by Commonwealth
This clause and the title should be amended to make it explicit that compensation is limited to either
amendment or termination of an RFA.
Further, the Bill should only provide for the Commonwealth to be liable to compensate for real losses
that follow from amendment or termination of a lawfully exercisable right or licence, and not for more
vague notions of possible future expectations.
Commonwealth Refusal to sign an RFA
Whilst concerns have been raised about the potential for an RFA to be signed by both the
Commonwealth and a State without proper regard to the principles and objectives of the National Forest
Policy Statement and this legislation (hence our proposal for a disallowance) there is also the potential for
the Commonwealth to either refuse to sign or to unduly delay the signing of an RFA for inappropriate or
political reasons.
The statements and actions of the Minister for Forests, Mr Tuckey, in respect to agreements recently
negotiated in NSW suggest that this is a real possibility.
We therefore propose that the Bill also be amended to require the Federal Minister, once he has
received a draft RFA, to publish in the Gazette within 21 days, details of the draft RFA and his
determination as to whether or not it complies with the criteria in Clause 3 and whether or not the
Government intends to enter into the proposed agreement.
Conclusion
The Opposition recommends that the Bill be passed subject to amendments to reflect the
issues and concerns raised in this report.
In particular we recommend that the Bill be amended to provide for:
Dated 10 March 1999
Senator M Forshaw Senator K O'Brien Senator S Murphy
Footnotes
[1] National Forest Policy Statement: A New Focus for Australia's Forests, (Commonwealth of
Australia, n.p. 1992) p. 8.
[2] National Forest Policy Statement: A New Focus for Australia's Forests, (Commonwealth of
Australia, n.p. 1992) p 7.
[3] Evidence, Forestry Tasmania, pp. 134-135.
[4] National Forest Policy Statement: A New Focus for Australia's Forests, (Commonwealth of
Australia, n.p. 1992) p. 8.
[5] Nationally Agreed Criteria for the Establishment of a Comprehensive, Adequate and Representative
Reserve System for Forests in Australia: a report of the joint ANZECC/MCFFA National Forest Policy
Statement Implementation Sub-committee, AGPS 1997, para 6.2.2.
(NB: 'JANIS' is derived from Joint ANZECC/MCFFA National Forest Policy Implementation
Sub-committee)
[6] Evidence, p. 215.
[7] Letter from Mr George Witynski, Special Counsel, Australian Government Solicitor dated 22
February to Mr Derek White Acting Director, Forest Conservation and Development Section, Forest
Industries Branch, Department of Agriculture, Forestry and Fisheries, p. 4.
[8] Submission, Forest Protection Society, p. 7.
[9] Submission, North Forest Products, p. 2.
[10] Evidence, Forestry Division, Construction Forestry, Mining and Energy Union, p. 82.