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Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details
Regional Forest
Agreements Bill 1998
Date Introduced: 26 November 1998
House: House of Representatives
Portfolio: Forestry and Conservation
Commencement: On a day to be fixed by
Proclamation or on the first day after 6 months from Royal
Assent has elapsed, whichever is the earlier.
Purpose
The Bill seeks to
provide legislative support to the outcomes of Regional Forest
Agreements (RFAs) entered into between the Commonwealth and States
and Territories, as part implementation of the National Forest
Policy Statement.
Background
The Commonwealth Government is responsible for
coordinating a national approach to both environmental and
industry-development issues. It has an interest in achieving the
efficient and effective management of the nation's forest
resources.
History of the Bill
This Bill was originally introduced to the House
of Representatives on 30 June 1998. It was read a second time on 15
July 1998 and there was substantive debate. It was resolved not to
refer the Bill to the House of Representatives Standing Committee
on Primary Industries, Resources and Rural and Regional Affairs.
The Bill was read a third time.(1) It lapsed when Parliament was
dissolved for the 1998 General Election and has now been
re-introduced.
Related matters, the adequacy of the 'National
Reserve System' and 'export controls' were under review by the
Senate Environment, Recreation, Communications, and the Arts
References Committee, as part of the Commonwealth Environment
Powers inquiry, but this Inquiry has not yet been re-instated in
the 39th Parliament.
Regional Forest Agreements are included in
Chapter 2, Part 4, Division 4 of the Environment Protection and
Biodiversity Conservation Bill 1998, which is being considered by
the Senate Environment, Communications, Information Technology and
the Arts Legislation Committee, due to report in March 1999.
Subdivision A excludes forestry operations permitted by Regional
Forest Agreements from an approval process for environmental impact
assessment procedures.
The Bill, when reintroduced on 26 November 1998,
was identical to the original Bill, as was the Explanatory
Memorandum, but there were substantive additions to the Second
Reading Speech emphasising: ongoing revisions to RFAs already
concluded in Victoria and Tasmania; consistent termination and
compensation provisions to be included in all RFAs; RFAs not yet
negotiated must meet the stringent definition of RFA in Clause 3;
and the Government's strong commitment to industry
development.(2)
National Forest Policy Statement
In 1992, the Commonwealth and the States and
Territories signed the National Forest Policy Statement (NFPS). The
Statement outlined agreed objectives and policies for the future of
Australia's public and private forests. It provided national goals
in 11 areas, which indicate the breadth of the forestry issues that
need to be addressed by the Commonwealth: conservation; wood
production and industry development; integrated and coordinated
decision making and management; private native forests;
plantations; water supply and catchment management; tourism and
other economic and social opportunities; employment; workforce
education and training; public awareness, education and
involvement; research and development; and international
responsibilities.(3)
As provided for in the NFPS, a Comprehensive
Regional Assessment (CRA) is a joint assessment of all forest
values by the Commonwealth and State - environmental, heritage,
economic and social - leading to the establishment of a
comprehensive, adequate and representative reserve system,
agreements on forest management, and the signing of a Regional
Forest Agreement (RFA). Where CRAs are in place, approvals for the
export of woodchips for periods longer than one year may be
considered, and the Commonwealth will be able to meet its
legislative obligations under s. 30 of the Australian Heritage
Commission Act 1975.
A Regional Forest Agreement is an agreement
about the long-term management and use of forests in a particular
region between the Commonwealth and a State Government. Its purpose
is to reduce uncertainty, duplication and fragmentation in
government decision-making by producing a durable agreement on the
management and use of forests.(4)
On 22 December 1994, the then Prime Minister,
the Hon Paul Keating MP, intervened to expedite the Regional Forest
Agreement process and announced that a strict timetable would be
developed for each Agreement, which would be developed on the basis
of technical and scientific assessment of the values of all the
forests.
In January 1997, the Commonwealth released
details of Nationally Agreed Criteria for the Establishment of a
Comprehensive, Adequate and Representative Reserve System for
Forests in Australia (the so-called JANIS Report).(5) There are
three broad criteria for biodiversity, old growth forests and
wilderness:
-
- a benchmark of 15% of the pre-1750s distribution of each forest
community to be protected within conservation reserves;
-
- retention in reserves of at least 60% of existing old growth,
increasing up to 100% for rare forest community old growth;
and
-
- protection of 90% or more, wherever practicable, of high
quality wilderness.(6)
By the end of November 1997, the 'JANIS reserve
criteria' had been broadened to take account of social and economic
considerations'.(7)
Eleven regions were defined by the Export
Control (Hardwood Wood Chips) (1996) Regulations. There have been
subsequent name changes to the regions and the North Region of NSW
has been split into two. In the Environment Protection and
Biodiversity Conservation Bill 1998, Division 4 may require
amendment as it does not name existing Regional Forest Agreements
and names, in clause 41, only 9 of the 12 RFA regions. Presumably
this Bill is intended to apply to all RFA regions. Note that in the
case of Tasmania, the entire state is considered one region and
this has management implications, which are discussed under clause
7 below.
Regional Forest Agreements
RFAs are intended to provide the basis for both
future forest management and an internationally competitive and
ecologically sustainable forest products industry. The agreements
will provide for a comprehensive, adequate and representative (CAR)
forest reserve system and will clearly identify those forest
resources available for multiple use, including resources for
sustainable timber harvesting.(8)
To date, RFAs have been concluded for the East
Gippsland and Central Highlands regions in Victoria and the
Tasmania region.(9) The process for assessment and negotiation of
RFAs is currently underway for nine other regions. Refer to Table
1.
Table 1. List of 12 Regional Forest Agreements with progress
towards their signing,
in likely chronological order
(Information supplied by the Department of Prime Minister and
Cabinet and Environment Australia)
Region
|
Progress with Regional Forest Agreement
|
VIC - East Gippsland
|
Signed 3 February 1997. Not a legally binding document and
should be re-examined prior to enactment of this Bill. This was the
easiest RFA to develop because of the areas of old growth forest
and wilderness already protected in reserves.
|
TAS - Tasmania
|
Signed 8 November 1997. The entire State is one region. One
section was intended to be legally binding to both Tasmania and the
Commonwealth, but the RFA should be re-examined prior to enactment
of this Bill.
|
VIC - Central Highlands
|
Signed 27 March 1998. Following the concept of the Tasmanian
RFA, a part of the document was intended to be legally binding but
the RFA should be re-examined prior to enactment of this Bill.
|
NSW - Eden
|
Was due to be signed by 31 December 1998. CRA and Directions
Paper released in May 1998. The NSW Government has announced new
reserves but there is no agreement with the Commonwealth.
|
VIC - North East
|
Likely to be signed in early part of 1999. CRA Paper released in
August 1998. Directions Paper outlining options being prepared.
|
WA - South West Forest
|
Signing of an RFA is expected shortly. Consultation Paper
released in May 1998. Public consultation period ended 31 July
1998.
|
NSW - Upper North East NSW
|
Was due to be signed by 31 December 1998. CRA and Directions
Paper released on 12 November 1998. The NSW Government has
announced new reserves but there is no agreement with the
Commonwealth.
|
QLD - South East Queensland
|
The negotiated date for signing is 31 December 1998 but this is
unlikely to be met. The CRA is expected to be released before the
end of 1998 followed by the development of the Directions
paper.
|
NSW - Lower North East NSW
|
The Commonwealth's preferred position is 30 June 1999. This is
yet to be agreed to by NSW. There is no consultation paper or
Options report released yet.
|
NSW - Southern
|
Due to be signed on or after 30 June 1999. It is one of the last
of the RFAs to be signed. There is no consultation paper or Options
report released yet
|
VIC - Gippsland
|
Signing expected in mid-1999. Work on CRA began in May 1998.
There is no consultation paper or Options report released yet.
|
VIC - Western
|
Signing possible by end of 1999. There is no consultation paper
or Options report released yet.
|
Need for legislation
It would appear that this Bill was necessary for
two reasons, to:
-
- legislate to remove Commonwealth environmental assessment,
national heritage and World Heritage legislative requirements over
regions covered by RFAs; and
-
- require the Commonwealth to pay compensation if it intervenes
to protect the environment in an area covered by an RFA.
Regional forest agreements are intended to be
20-year agreements with a five year review of performance, the
outcomes of which will be made public. On 25 March 1997, Senator
Brown proposed that the Senate note that the East Gippsland
Regional Forest Agreement 'is a statement of intent only and has no
legal effect'.(10) The motion was lost.
A need to legislate for compensation may have
arisen as a result of concerns that the Tasmanian RFA did not in
fact legally bind the Commonwealth to pay compensation to the
Tasmanian Government and the forest and mineral industry, as was
intended. A legal opinion to this effect was obtained by Senator
Bob Brown.(11) Mr Gary Corr, in a 50-page opinion to the Greens,
concluded: 'The agreement is a statement of intent only and has no
legal effect'. However, the chief executive of the Forest Industry
Association of Tasmania, Mr Ian Whyte, said that 'its importance to
the industry remained intact'.(12)
In response to a Question on Notice from Senator
Brown on 2 April 1998, as to why legislation is being prepared to
give effect to RFAs if they are already legally binding, Senator
the Hon Robert Hill, Minister representing the Prime Minister,
responded that:
Only part three of the Tasmanian and Central
Highlands RFAs is expressed to be legally binding. The primary
reason for the legislation is to give effect to some key provisions
which are not expressed to be legally binding in the Tasmanian and
Central Highlands RFAs, thereby providing greater certainty about
the operation of RFAs.(13)
Compensation
In the interests of enhancing industry
confidence in RFAs, the Commonwealth proposes that all RFAs will
include positive obligations on the States to initiate compensation
action on behalf of industry where a Commonwealth breach of an RFA
results in a case for compensation. The Hon John Anderson
MP, then Minister for Primary Industries and Energy, in a Press
Statement on 30 June 1998, stated that:
The Government proposes that all RFAs should
include a positive obligation on the States to initiate
compensation action on behalf of industry where a Commonwealth
breach of an RFA results in a case for compensation.
The commencement of the RFA Act must occur
within 6 months and one day of the Bill being granted Royal Assent.
This delay is intended to permit examination of existing RFAs with
regard to compensation provisions (Clause 7) to ensure consistency
between RFAs. These further negotiations, foreshadowed in the
Minister's second reading speech, were to begin 'as soon as
possible' and the Hon Wilson Tuckey MP, Minister for Forestry and
Conservation, was able to report to the Parliament on 26 November
1998 that 'we are working with the Victorian and Tasmanian
Governments to include these provisions in existing RFAs in the
near future'. He added that '...this process does not amount to
opening renegotiation of existing RFAs'.(14) It is difficult to
understand how inserting a new clause in an agreement does not
amount to renegotiation. It might have been preferable for the
re-examination of existing RFAs to be completed prior to the
introduction of the legislation.
An earlier Bill introduced by the Hawke
Government, the Forest Conservation and Development Bill 1991,
which was defeated in the Senate, specifically excluded
compensation being payable by the States or Commonwealth.
Removal of export controls
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.
The Union covering the Forest and Forest
Products Industry, the Construction, Forestry, Mining and Energy
Union (CFMEU), has called upon the Commonwealth to maintain some of
its powers of intervention. The Union believes that:
...the Commonwealth should maintain export
control powers in specific circumstances to help encourage more
value adding and downstream processing. In particular if
unprocessed wood was being exported at the detriment of local
processors.
The Commonwealth must maintain the power to
intervene in cases where sawlogs are being exported and sawmills
are being closed for lack of log supply.(15)
The provision of export licences used to act as
a potential trigger for Environment Impact Assessment. As shown in
Tasmanian Conservation Trust Inc v Minister for Resources
(Gunns case) in 1994, the approval of a woodchip export
licence may have a significant effect on the environment.(16) The
decision to remove export controls by the Commonwealth government,
as part of the RFA legislation, reduces the Commonwealth's role in
environmental impact assessment.(17) However, the Government
considers that the CRA process meets the requirements of an
environmental assessment for the purposes of the Environment
Protection (Impact of Proposals) Act 1974.
Relation to existing and proposed environmental legislation
The Bill aims to remove Commonwealth
environmental legislative control, other than that of this Bill,
from forestry operations in every area of Australia covered by a
Regional Forest Agreement which is in force. The effect of RFA
forestry operations must be disregarded for the purposes of certain
sections of the:
-
- Australian Heritage Commission Act 1975;
-
- Environment Protection (Impact of Proposals) Act 1974;
and the
-
- World Heritage Properties Conservation Act 1983.
The Environment Protection and Biodiversity
Conservation Bill 1998 (at Chapter 2, Division 4, clauses 38-41, pp
40 - 43) refers to the Regional Forest Agreements Act
1998, and states that forestry operations do not need approval
if they are undertaken in accordance with Regional Forest
Agreements. This is consistent with the Government's stated
intention to minimise its role in forest management.
Export licences have been removed as a trigger
for environmental impact assessment under the proposed Environment
Protection and Biodiversity Conservation Bill 1998.
As the RFA Bill may provide a legislative model
for future bilateral agreements and associated legislation proposed
under the Environment Protection and Biodiversity Conservation Bill
1998, these Bills should be considered in context. The possible
proliferation of both Commonwealth and complementary State
legislation would run counter to the Government's stated criticism
of 'ad hoc' legislation by previous Governments and its
concern to 'improve government processes'.(18)
Financial Impact Statement
The Explanatory Memorandum states that:
There will be no direct financial impacts from
the passage of the RFA Bill. Any costs/savings will be the result
of the establishment, implementation and operation of the RFAs
themselves.
This statement is open to challenge. The Bill
introduces possible substantial compensation payments by the
Commonwealth which are 'payable out of money appropriated by the
Parliament' (Clause 7. Subsection 3(b)). The Bill also imposes
additional financial impacts including the cost of negotiations to
revise existing RFAs and any additional complementary State
legislation for RFAs.
Main
Provisions
Clause 3 defines certain terms
contained in the Bill. An RFA is defined:
RFA or Regional Forest
Agreement means an agreement that is in force between
the Commonwealth and a State in respect of a region or regions,
being an agreement that satisfies all the following conditions:
(a) the agreement was entered into having regard to assessments
of the following matters that are relevant to the region or
regions:
(i) environmental values, including old growth, wilderness,
endangered species, national estate values and world heritage
values;
(ii) indigenous heritage values;
(iii) economic values of forested areas and forest
industries;
(iv) social values (including community needs);
(v) principles of ecologically sustainable
management;
(b) the agreement provides for a comprehensive, adequate and
representative reserve system;
(c) the agreement provides for the ecologically sustainable
management and use of forested areas in the region or regions;
(d) the agreement is expressed to be for the purpose of
providing long-term stability of forests and forest industries;
(e) the agreement is expressed to be a Regional Forest
Agreement.
With regard to the definition of a
'comprehensive, adequate and representative reserve system' it
should be noted that 'RFAs currently in force will be examined and,
if necessary, revised to ensure consistency with the Act'.(19)
Clause 4 binds the Crown in
right of the Commonwealth.
Clause 5 precludes any controls
under the Export Control Act 1982 being applied to RFA
wood sourced from an RFA region, as discussed above. The Export
Control (Hardwood Wood Chips) (1996) Regulations in September 1996
were followed in May 1997, by the Export Control (Regional Forest
Agreements) Regulations, under the Export Control Act
1982, which meant that a Commonwealth export licence was not
needed to export hardwood woodchips and other unprocessed wood from
an RFA region. This Clause provides legislative backing, which may
be considered unnecessary since Regulations are already in
place.
Clause 5 of the Bill also states that the effect
of RFA forestry operations must be disregarded for the purposes of
certain sections of the Australian Heritage Commission Act
1975, Environment Protection (Impact of Proposals) Act 1974
and the World Heritage Properties Conservation Act
1983.
The Environment Protection and Biodiversity
Conservation Bill 1998, currently before the Parliament, will
replace the Environment Protection (Impact of Proposals) Act
1974 and the World Heritage Properties Conservation Act
1983 but not the Australian Heritage Commission Act
1975. The RFA Bill may then require consequential
amendment.
The RFA 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. In the case of the Tasmanian RFA, the protection of
'World Heritage values' is specified in the RFA itself.(20) In the
case of the West Gippsland and Central Highlands RFAs, any future
World Heritage nomination will be achieved from within the CAR
Reserve System.
The entire State of Tasmania is classified as
one region within the Tasmanian RFA, with the result that the
Tasmanian Wilderness World Heritage Area is covered by this
legislation. It could be argued that, when this Bill is enacted,
the World Heritage Properties Conservation Act 1982 would
not apply to forestry and forestry transport operations in the
Tasmanian WHA. However, once the EP&BC Bill is enacted,
approval for forestry operations in a World Heritage area, even if
covered by an RFA, would be needed.(21)
Clause 6 provides that the
termination of an RFA by the Commonwealth has no effect unless it
is done in accordance with the termination provisions of the RFA in
force at the time the Act commences or at the time the RFA
commences, whichever is later. This is to provide a safeguard that
the Commonwealth cannot agree to subsequently change termination
provisions in any RFA without amendment of the Act by the
Parliament. In RFAs already negotiated, termination can only occur
3 months after an intention is notified. As outlined in the Second
Reading Speech:
The Commonwealth now proposes that all existing
and future RFAs be strengthened by providing that termination by
mutual consent of the parties can only occur 12 months after an
intention to terminate the Agreement is notified; thus allowing a
full review of the operation of the RFA to be carried out.
An important modification such as this could
have been included in the Bill, to permit enactment of the
legislation prior to the re-visiting of existing agreements.
Clause 7 is the critical part
of the Bill that ensures that the Commonwealth is liable to pay
compensation to a State for a breach of an RFA by the Commonwealth.
It states that:
-
- the Commonwealth is liable to pay compensation to a State in
accordance with provisions of the relevant RFA (subclause 1);
and
-
- the liability incurred when an RFA is in force continues even
after the RFA has been terminated or expired (subclause 2).
Unlike Clause 5 which applies in relation to
'RFA wood or RFA forestry operations' (a broad definition including
land clearing, land preparation and burning and transport
operations as in Clause 3), Clause 7 is not similarly restricted
and applies also to mining.
Note that while the East Gippsland RFA contains
no compensation provision, the Central Highlands RFA and the
Tasmanian RFA include compensation for mining products (95.1 (j))
as well as forestry products and road building (Attachment 1, pp
26-28).(22)
If the Tasmanian Government approved forestry
operations, such as burning, adjacent to the WHA, which compromised
WH values, and the Commonwealth intervened to stop such forestry
operations, then the Commonwealth might be liable to pay
compensation to the State. Alternatively, the cost of compensation
payable by the Commonwealth might be used as a justification for
not intervening to stop the forestry operations.
Clause 8 requires the Minister
to publish information about RFAs.
Concluding Comments
This Bill attempts to provide legislative
certainty to the part implementation of the National Forest Policy
Statement through the process of Regional Forest Agreements
negotiated between the Commonwealth and the States and Territories.
However, the Bill includes a number of policy changes: it
introduces the concept of compensation payable by the Commonwealth
and requires that existing RFAs be re-visited; legislates to remove
export controls from RFA forest operations and generally minimises
the Commonwealth's role in forest management. It might have been
appropriate to complete the revisions to existing RFAs before the
legislation was introduced.
Endnotes
-
- House Hansard, 15 July 1998, pp. 6091-6121.
- Regional Forest Agreements Bill 1998, Second Reading Speech,
op. cit., pp. 611-613.
- National Forest Policy Statement. A new focus for
Australia's forests, 1992, Commonwealth of Australia, 52
pp
- Nationally Agreed Criteria for the Establishment of a
Comprehensive, Adequate and Representative Reserve System for
Forests in Australia. A report by the Joint ANZECC/MCFFA National
Forest Policy Statement Implementation Sub-committee (The JANIS
Report), January 1997, Glossary. Also at http://www.rfa.gov.au/documents/janis/contents.html
- Ibid.
- Ibid.
- Tasmanian Regional Forest Agreement between the
Commonwealth of Australia and the State of Tasmania, 8 November
1997 also at http://www.rfa.gov.au/rfa/tas/contents.html
- Regional Forest Agreements Bill 1998, Explanatory Memorandum,
p. 2.
- East Gippsland Regional Forest Agreement signed
between the Commonwealth
and Victorian Governments, 3 February 1997 also at http://www.rfa.gov.au/cra/vic/eastgipp/rfa_kits/rfa_sign.html;
Tasmanian Regional Forest Agreement between the
Commonwealth of Australia and the State of Tasmania, 8 November
1997 also at http://www.rfa.gov.au/rfa/tas/contents.html;
Central Highlands Regional Forest Agreement between the
Commonwealth of Australia and the State of Victoria, 27 March 1998
also at http://www.rfa.gov.au/rfa/vic/cnhirfa.doc.
- East Gippsland Forests, Weekly Senate Hansard, 25
March 1997, p. 2385. See also Jane Tribe, 'The Law of the Jungles:
Regional Forest Agreements', Environmental and Planning Law
Journal, Vol 15 No 2, April 1998, p. 141.
- Andrew Darby, 'Forest agreements not legally binding: report'.
The Age, 30 March 1998, p. A6.
- Ibid.
- Questions on Notice. East Gippsland, Tasmania and Central
Highlands Regional Forest Agreements, Weekly Senate
Hansard, 28 May 1998, p. 3437.
- Regional Forest Agreements Bill 1998, Second Reading Speech, Mr
Tuckey, House of Representatives, 26 November 1998, p. 612.
- 'Timber workers call for Senate amendments', Press
release, Construction, Forestry, Mining, and Energy Union, 23
August 1998.
- Juliet Forsyth, 'Anarchy in the Forests: a Plethora of Rules,
an Absence of Enforceability', Environmental and Planning Law
Journal, Vol 15 No 5, October 1998, p. 340.
- Ibid., p. 341.
- Environment Protection and Biodiversity Conservation Bill 1998,
Explanatory Memorandum, p. 6.
- Regional Forest Agreements Bill 1998, Explanatory Memorandum,
p. 5.
- Tasmanian RFA, op. cit., p. 16.
- (Chapter 2, Division 4, Subdivision C, clause 42)
- Tasmanian RFA, op. cit.
Dr Frances B Michaelis
1 December 1998
Bills Digest Service
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