Australian Greens' additional comments

1.1The Australian Greens thank everyone who made a public submission within the tight timeframes of this inquiry.

1.2The Illegal Logging Prohibition Amendment (Strengthening Measures to Prevent Illegal Timber Trade) Bill 2024 (the Bill) amends the Illegal Logging Prohibition Act 2012 (the Act).

1.3The Australian Greens supported passage of the Illegal Logging Prohibition Bill 2012, however, argued that whilst the 2012 Bill was a step in the right direction, it did not go far enough.

1.4Here we find ourselves again. The view that the Bill does not go far enough was the position of numerous civil society witnesses, including the Jubilee Australia Research Centre, Uniting Church in Australia Synod of Victoria and Tasmania, Center for International Environmental Law, and Environmental Investigation Agency (Jubilee, Uniting, CIE and EIA).[1]

1.5In its evidence to the committee, Jubilee, Uniting, CIEL and EIA welcomed the Bill as an amendment that would make the Act a more effective tool to combat trade of illegally logged timber (both raw and processed). However, it also drew the committee’s attention to significant shortfalls and missed opportunities in these new provisions.[2]

1.6Jubilee, Uniting, CIEL and EIA submitted that, contrary to evidence provided to the committee by industry witnesses suggesting otherwise, there has been little enforcement action taken by the Commonwealth since the Act came into force on 28 November 2012. This, they argued, was due to limitations on what data is currently collected through due diligence obligations, when it is collected, and to whom that data is provided.[3]

1.7Jubilee, Uniting, CIEL and EIA welcomed provisions in section 18B of the Bill, however, they raised concerns with what data was required. Section 18B—‍Notice of regulated timber products to be unloaded in Australia—requires due diligence data on imported timber to be provided to the Department of Agriculture, Fisheries and Forestry (the Department) and would make it an offence to either not provide the data or provide false data.[4]

1.8In particular, they were concerned that the Bill’s new due diligence obligations for importation of timber did not include data on timber species or country of harvest, and that the Bill’s failure to provide for new technologies in timber identification, such as timber DNA testing, was a missed opportunity.[5]

1.9Jubilee, Uniting, CIEL and EIA recommended that the Bill be amended to require that import notices must include, at minimum, information on the species and country of harvest of imported timber,[6] which is a recommendation the Australian Greens support.

1.10The Australian Greens recommend that section 18B of the Bill should be amended to require that import notices must include, at minimum, information on the species and country of harvest of imported timber.

1.11Jubilee, Uniting, CIEL and EIA also raised concerns regarding the definition of 'illegal logging' provided by the Bill, arguing that the definition provided should be brought in line with relevant legislation in other comparable countries combating importation of illegal timbers. Failure to do so would see Australia become a dumping ground of illegally logged timber.[7]

1.12Jubilee, Uniting, CIEL and EIA submitted:

A number of timber import laws include legal violations in the country of harvest that are much broader than harvest-related legal violations under [the Act], and capture corruption offences … [to include] tax, anti-‍corruption, trade and customs regulations as well as land use rights, environmental protection and Indigenous peoples’ right to Free Prior and informed consent.[8]

1.13This, they argued, would ensure the Bill’s provisions would cover corruption occurring pre-harvest and post-harvest. They provided the following example of a definition that would be fit for this purpose, and align with international legislations:

… illegally logged, in relation to timber, means authorized for harvest, harvested, processed, and/or transported in contravention of laws in force for the protection of plants or related to bribery, money laundering, tax evasion, orfraud in the place (whether or not in Australia) where the timber was harvested.[9]

1.14This concern was also raised in evidence provided to the committee by Dr Hannah Harris of the Macquarie Law School, who submitted that:

The nexus between illegal logging and financial crime - including bribery, corruption, fraud, tax evasion and money laundering, is well documented. There is also an established link between illegal logging and human rights abuses.[10]

1.15Jubilee, Uniting, CIEL and EIA recommended in its submission that the Bill provide for the definition of 'illegally logged' in section 7 of the Act to be amended to cover corruption-related offences related to illegal logging operations, specifically laws in force for the protection of trees or forests, or related to bribery, money laundering, tax evasion, or fraud.[11]

1.16The Australian Greens recommend that section 7 of the Illegal Logging Prohibition Act 2012 be amended to cover laws that impact legality through the protection of environment and/or human rights, as well as corruption-related offences such as bribery, money laundering, tax evasion, fraud, and other financial crimes.

1.17In its amendment to section 15 of the Act, the scope of the Bill also provides additional legislation (that is, liability offences and civil penalty provisions) for the processing of domestically grown raw logs that have been illegally logged.

1.18The legality or otherwise of domestic logging is determined by Australian laws, and in particular, the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act). However, as found by the Independent Review of the EPBC Act(the Samuel Review), which reported on 30 October 2020, Australia’s environment laws—‍including those relating to the logging of native forests—‍are not fit for purpose and are in need of urgent and significant reform.[12]

1.19In its evidence to the committee, The Wilderness Society (TWS) submitted:

Focusing solely on combating the illegal timber trade overlooks the most pressing contributor to habitat loss: native forest logging sanctioned under Regional Forest Agreements (RFAs).[13]

1.20The synopsis of evidence provided by TWS and others to the committee, being that the enforcement of bad laws—no matter how good that enforcement may be—can only result in bad policy outcomes. As submitted in evidence by Ms Margaret Blakers OAM:

Commonwealth responsibility for native forests, largely derived through international agreements, is given effect through the EPBC Act. Unlike other industries, native forest logging is exempt from the EPBC Act if carried out in accordance with a regional forest agreement (RFA). This is the case even when logging breaches state laws.[14]

1.21The conservation and climate sectors have long argued for the exemptions provided for RFAs under the EPBC Act to be repealed. After referring to the Samuel Review in its evidence that RFAs have failed to balance environmental and industry objectives, TWS further called on the Australian Government to:

… remove the RFA exemption in the EPBC Act and to subject native forest logging in Australia to the full scope and regulatory functions under that Act, and any future reformed version of that Act.[15]

1.22This position was echoed in evidence provided by Ms Blakers, who also submitted that despite environmental and native forestry laws that are not fit for purpose, illegal logging is commonplace in Australia, and before our courts:

There is a perception that illegal logging is uncommon in Australia. In the case of native forest logging that is a misperception. The deficit is in enforcement - in Victoria, where third parties have standing, community court cases have been highly successful; in [New South Wales] regulator-‍initiated court cases have been successful. In more remote forests, theft is a serious problem, e.g. firewood, sandalwood.[16]

1.23Although evidence was provided to the committee of enforcement actions being prosecuted in various state courts, there were also calls for greater and more accessible transparency regarding enforcement actions taken under the Act. Ms Blakers recommended that the Bill 'require regular public reporting of the extent of illegal logging in Australia and of action taken under [the Act]'.[17]

1.24TWS and Ms Blakers are, of course, correct.

1.25The Australian Greens recommend that the Bill be amended to require regular public reporting of the extent of illegal logging in Australia and of action taken under the Act.

1.26Ms Blakers also drew the committee’s attention to the Bill’s use of industry certification standards as a proxy for legality. Ms Blakers submitted that schedule 2 of the Illegal Logging Prohibition Regulation 2012 (the Regulation)—‍timber legality frameworks, country specific guidelines and state specific guidelines—‍provides for 'timber legality frameworks' (schedule 2) without definition. Rather than providing a definition, the Regulation instead lists industry certifications standards; those being Forest Stewardship Council (FSC) certification and Programme for the Endorsement of Forest Certification (PEFC):

FSC forest management certification standard and chain of custody standard; and

PEFC sustainable forest management certification standard and chain of custody standard.[18]

1.27Ms Blakers’ evidence is that the listing of industry certification standards as timber legality frameworks wrongfully suggests that meeting one of these standards equates to legal compliance, arguing:

The term 'timber legality framework' is highly misleading. The [PEFC] and FSC standards are not designed to assess legality. They are private schemes for certifying compliance with the nominated standard. The [PEFC] standard does not require legality to be audited as a condition of certification and certification audits are explicitly not legal compliance audits.[19]

1.28To ensure that schedule 2 of the Act will, in its operation, ensure timber legality, Ms Blakers recommended:

[The Bill] should be amended to make assessment of legal compliance a requirement of any process adopted under the Rules to satisfy due diligence requirements. Timber legality frameworks should be removed from [the Regulation] or at minimum … certification schemes should not be recognised as timber legality frameworks.[20]

1.29The Australian Greens recommend that the Bill be amended to make assessment of legal compliance a requirement of any process adopted under the Rules, as an option for processors to meet their due diligence obligations under section 18.5 of the Act; or as an option for importers of regulated timber products to meet their due diligence obligations under section 14(5) of the Act.

1.30As these additional comments have previously identified, submissions made by witnesses from the conservation sector have universally called for an end to native forest logging.

1.31As submitted by the Bob Brown Foundation:

… the Australian government currently licences the broad-scale destruction of the habitat of koalas, greater gliders and critically-endangered Swift parrots and Tasmanian devils - with timber from Tasmania being exported to Sarawak as well as other countries. The bill should be amended to ban the importation of all timber from natural forests Otherwise, Australia will continue to be part of the global crises of rapidly rising extinctions and worsening global warming.[21]

1.32As submitted to the committee by conservation sector witnesses, native forestry operations should be treated no differently under the EPBC Act than any other actions by any other industry that may impact on matters of national environmental significance. That is, all forestry operations should be required to obtain approval under the Act.

1.33The Australian Greens’ Private Senator’s Bill 'Ending Native Forest Logging Bill 2023' will repeal the Regional Forest Agreements Act 2002 and amend the EPBC Act to remove any and all exemptions they provide for native forest logging.

1.34The Australian Greens recommend that the Senate passes the Ending Native Forest Logging Bill 2023.

1.35The Australian Greens recommend that the Illegal Logging Prohibition Amendment (Strengthening Measures to Prevent Illegal Timber Trade) Bill 2024 be passed by the Senate with amendments in line with recommendations 1–4 of these Australian Greens additional comments.

Senator Nick McKim

Substitute Member

Greens Senator for lutruwita/Tasmania

Footnotes

[1]Jubilee Australia Research Centre, Uniting Church in Australia Synod of Victoria and Tasmania, Center for International Environmental Law, and Environmental Investigation Agency (Jubilee, Uniting, CIEL and EIA), Submission 16.

[2]Jubilee, Uniting, CIEL and EIA, Submission 16, p. 1.

[3]Jubilee, Uniting, CIEL and EIA, Submission 16, p. 2.

[4]Jubilee, Uniting, CIEL and EIA, Submission 16, p. 3.

[5]Jubilee, Uniting, CIEL and EIA, Submission 16, p. 4.

[6]Jubilee, Uniting, CIEL and EIA, Submission 16, p. 4.

[7]Jubilee, Uniting, CIEL and EIA, Submission 16, p. 5.

[8]Jubilee, Uniting, CIEL and EIA, Submission 16, pp. 6–7.

[9]Jubilee, Uniting, CIEL and EIA, Submission 16, p. 7. Italics denote proposed additional text.

[10]Dr Hannah Harris, Submission 33, pp. 3–4.

[11]Jubilee, Uniting, CIEL and EIA, Submission 16, p. 7.

[12]Professor Graeme Samuel AC,'Independent review of the EPBC Act', October 2020.

[13]The Wilderness Society, Submission 36, pp. [1–2].

[14]Ms Margaret Blakers OAM, Submission 35, p. 2.

[15]The Wilderness Society, Submission 36, p. [2].

[16]Ms Margaret Blakers OAM, Submission 35, p. 2.

[17]Ms Margaret Blakers OAM, Submission 35, p. 1.

[18]Ms Margaret Blakers OAM, Submission 35, p. 5.

[19]Ms Margaret Blakers OAM, Submission 35, p. 5.

[20]Ms Margaret Blakers OAM, Submission 35, p. 6.

[21]Bob Brown Foundation, Submission 4, p. [1].