Senate Rural and Regional Affairs and Transport Legislation Committee
: Dissenting report
Senator John Woodley and Senator Andrew Bartlett on behalf of the Australian Democrats
Introduction
The Australian Democrats have submitted this dissenting report to the Senate Rural and Regional Affairs
and Transport Legislation Committee on the Regional Forests Agreement Bill.
We have decided we cannot agree with the committee report because it recommends that the legislation
be passed unamended. This legislation has far reaching effects and is an unsatisfactory response to an
issue which has divided the Australian community for many years.
Indeed, the legislation as it stands risks legitimating, for an extraordinary period and with extraordinary
protection from review or challenge, the claims of one set of sectional interests to the detriment of other
sections of the industry, the government's employment and regional development objectives, Australia's
international obligations and the broader interests of the community.
Since the committee examination has been through the narrow legislative committee process, it was not
possible to make sufficient time to consider all aspects of often complex submission, take as much
evidence as was offered and properly evaluate competing issues of resource security, economically and
ecologically sustainable development, and wilderness and biodiversity protection.
We believe this is an unsatisfactory response to those many people who have actively participated in
good faith in the Senate process. The Democrats would support a full enquiry into forests in a references
committee and view Senator Murphy's terms of reference as a good starting point for negotiations on a
more appropriate committee process.
The Democrats particular concerns with the Regional Forests Agreements process and legislation can be
summarised as follows:
- The RFA process fails to resolve one of the most long running and contentious issues to
face the nation
- The RFA process fails to deliver on jobs for impoverished and vulnerable rural areas
- The RFA process unfairly discriminates against the plantation industry
- The RFA process will destroy many areas of native forests including old growth areas
and fails to protect Australia's biodiversity contrary to an international agreement
- The RFA process discriminates unfairly against other important cultural values and
social and economic benefits provided for by native forest areas
- The RFA process will be mostly controlled by State governments who have vested or
financial short term interests in the outcomes thereby leading to positions of conflict of
interest.
- The RFA process raises constitutional issues and poses potential legal and financial
difficulties on the Commonwealth and the taxpayer
The following, brief report provides some detail in these areas but due to time and space limitations it
cannot provide an exhaustive account of the abundant information that was made available to the
committee. We would like to acknowledge and thank the many people who participated genuinely in this
process and spent so much time preparing such comprehensive information. We would also like to
acknowledge that much of this report writing time and indeed many years worth of work before hand has
been given by individuals and groups freely and in the public interest and we would like to commend
those people.
1. The RFA process fails to resolve one of the most long running and contentious issues to face
the nation
The future of Australia's forests has unfortunately become a contentious and highly divisive issue.
Hundreds of thousands of people have marched in the streets, written letters or directly participated in
public interest or industry organised groups about the issue.
There have been blockades and sometimes violent confrontations in forests in several states; even a
blockade of the Federal parliament. Successive governments, both State and Federal, have tried a
variety of means to satisfy competing interests and Australia's national obligations under international
treaties.
The Regional Forest Agreement process was supposed to bring an end to the divisiveness and conflict.
The evidence before this committee patently demonstrates that this has not occurred; indeed a number of
witnesses detailed how a flawed process has added to conflict.
This Senate committee received more than 360 submissions, a very considerable number when viewed in
the context of the very short time frames allowed for submissions. It has itself become another example of
the flawed process of dealing with forest issues in this country, with inadequate time for consideration of
submissions, rushed and inadequate hearings and a report that can not do justice to the range of views
heard.
The committee has heard allegations that agreements have been reached on highly unscientific grounds in
bureaucratic secrecy without equal opportunity for all stakeholders to be represented, how lobbying has
changed reserve areas that were supposedly set in stone, and of how biodiversity and conservation needs
have been met with “loggers' scraps and slivers”. [1]
Even if only some of these allegations are true the bill will set such flawed agreements in place for a
considerable period of time and place them extraordinarily beyond challenge or amendment. It is hard to
see how this will reduce conflict over Australia's forests.
The motivation behind the bill seems to be to for the Commonwealth to abdicate its responsibilities to the
States. The bill removes hard fought for community and environmental safeguards, favour the declining
sector of the industry at the expense of the growing sector of the industry and offer selective
compensation as a means to put the schemes beyond the reach of further consideration or challenge.
The Democrats are concerned that the perception that one interest has achieved an officially sanctioned
game, set and match with this legislation will exacerbate rather than resolve community conflict. Indeed,
the implied lack of productive outlets for expressing widespread community disquiet over woodchipping
operations in old growth forests in particular may mean that protest assumes a more extreme and
confrontational aspect.
“The RFA is now exposed as nothing more than a costly handout to the old-growth
forest based timber industry and in particular the woodchip industry, and it is
generally accepted that if the WA RFA is by some miracle ultimately signed it will
simply usher in a new era of even more intense conflict and controversy over
Western Australia's forests. If that is what the Government wants to bring on then
so be it.” [2]
Indeed, the question of the RFA's is so vexed, even Australia's major political parties cannot come
anywhere near to consensus on the issue. The National, Liberal and Labor parties have all had public
stoushes between branches, state and federal bodies on the issue with the brawls sometimes becoming
major news.
Should the legislation be voted on in the Senate it will be interesting to view the careful speeches and
delicate positioning of individuals who are going to have to justify themselves before their caucus, their
state, their factions, their branches and their electorates. Of course the final vote is what counts and it is
clear some individuals would prefer the legislation to be started again and others do not agree with
particular aspects of RFA's and will be voting against their own judgement.
It has also become obvious that politicians are so confused over the massive amount of sometimes quite
emotive information coming from either side, and the passionate nature of the issue that they have taken
the easy option of believing you can't win on forests. That there is no outcome which will satisfy any party
and that the only way to deal with the `f' word is to hush it up and weld in legislation that will push the
issue aside for many years.
It was clear from the submissions that the range of people unhappy with the RFA's will not give up and
will keep making this an issue. It is astounding to believe that with 30,000 people participating in a public
process in WA, most in opposition to the anticipated outcome of increased old growth logging, that the
issue will simply go away when the RFA is signed.
Indeed the Democrats can predict that the issue will remain a bleeding sore for major parties and
individuals in those parties while ever the industry is unsustainable, people are not offered meaningful and
continuing work and native forests are logged for woodchip. The RFAs lock in those concerns and so it
is logical to assume the community will continue to be unhappy with their elected and aspiring
representatives.
The Democrats feel that the only basis for greater community consensus on this issue lies with an open
process based on more equal inputs from stakeholders, undistorted scientific and economic assessment
and community education. Compensation may well be part of a long term solution to the vexed question
of access to Australian forests. However it should be focussed on assistance to affected communities
rather than being – as the RFA's seem to imply – a handout to companies, a porkbarrel for some
electorates or a threatened big stick to ward off any community efforts to fiddle with agreements.
If the reason the Regional Forest legislation has been put before the Senate is to provide a `resolution' to
forest issues, it is clear this process has failed that test and voting for that legislation will continue such
conflict in the Australian community.
2. The RFA process fails to deliver on jobs for impoverished and vulnerable rural areas
The Committee heard evidence from a number of witnesses about the break down in the social fabric of
communities which are heavily dependent on the timber industry. In particular the Forest Protection
Society (FPS) gave evidence about this and are to provide the documentation of the research which
underpins their evidence.
In his answer to a question from Senator Woodley, Chris Althaus indicated that this research had been
conducted by the `social assessment unit that has been working as part of the Department of Agriculture,
Forestry and Fisheries”.
The Democrats are deeply concerned about the decline in employment and population in many of
Australia's rural and regional areas. The submission of the Forest Protection Society states in graphic
language the situation:
“RFA social assessments have identified many social effects our communities have
arising from insecurity and uncertainty including very high unemployment rates,
increased suicides, substance abuse, marriage breakdowns and medical problems,
as well as economic consequences of bankruptcy and debt related breakdown of
business and family units”. [3]
The Democrats recognise the loss of jobs in the timber industry which has occurred over many years
although some witnesses gave evidence of slight improvement in some areas. However the Democrats
reject the simplistic notion that job losses are primarily a result of attempts at environmental protection of
old growth forests. There are complex reasons for the loss of jobs in the timber industry, some of which
parallel the loss of jobs in many areas of rural and remote Australia generally.
Reasons unrelated to environmental activism and, it would seem, of far greater employment significance,
include increasing mechanisation, corporate consolidation and rationalisation of mill operations and
decreasing areas of easy source material. They also include the take over of pulping and woodchipping
as being the primary focus in many forest areas. This deters or deleteriously affects downstream or value
added investment.
Problems arise when plantation industry products, which are a greater employer, are undercut to such an
extent by lower employment generating pulp and woodchip products.
The Democrats believe that the only way in which long term job security can be assured is through
proper value adding to forest products and basing the industry in sustainable and existing plantations. It
was demonstrated by a number of witnesses such as Judy Clark and Francis Grey that the economics of
native forest logging are simply not sustainable.
“Of Australia's 14 largest sawmills, each processing over 100 000m/3 of logs per
annum, all are softwood plantation mills. None rely on native forest logs. [4]
The West Australian branch of the Australian Workers Union is part of the way there:
“A jobs rich manufacturing and processing capability close to production of
material in the South West will enhance the quality of life for many South West
residents…with this commitment together with that of industry and workers it
would be possible for Western Australia to become known for its furniture in the
same way Holland is known for its tulips”.
There is no doubt that should this be the only exploitative use for those forests the issue would not be as
contentious. But since the majority use becomes focussed around the voracious needs of the woodchip
industry, smaller sawmillers are disadvantaged considerably.
Senator Shayne Murphy in his evidence to the inquiry argued that North Forest Products, one of the
main woodchippers in Tasmania, are controlling the supply of logs for woodchips to the detriment of
small sawmillers and that many logs are being sent to be chipped or even burnt when they could be
processed to higher quality uses.
He pointed out that saw logs and timber for quality furniture are being lost to the industry as a result. He
showed the committee photos of a salvage operation after woodchip harvest where myrtle species
suitable for sawlog use were being taken away to be burnt.
“When you look at these photographs, you will see, and you do not have to be a
rocket scientist to work it out – that these are sawlogs. The Forestry Corporation
of Tasmania indicated to me, indeed in writing, that these coupes contain no
sawlogs.” [5]
Although some witnesses said the absence of completed RFAs was holding back investment, the actual
evidence linking RFAs to employment outcomes was much less tangible. Some basic figures were not
available to the committee, including the exact number of jobs in the plantation sectors and the
number of jobs in the native forest sectors overall.
Senators certainly pursued a common line of inquiry in search of evidence that resource security will
actually generate investment and jobs. There was no substantial evidence presented that it would. Even
with RFAs substantially in place the industry have not made the commitment it will invest in the
downstream processing that is the only possible source of major new employment in the native forest
products sector.
Indeed evidence was given that the Burnie pulp mill closed with the imminent signing of an RFA with the
loss of many jobs. The reality is that jobs in the native forest industry will continue to decline because the
native forest industry is relying more and more heavily on woodchip, despite the fact that the woodchip
industry needs considerable propping up from the public purse and is unsustainable.
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If the Government was serious about long term jobs and security then it should focus on the most
commercially viable part of the industry, the plantation sector (see above chart) [6]. Within that sector
investment must be encouraged in processing and plantation wood, particularly at this time as we have
larger and larger areas of plantation coming on stream.
The big employment generators are in further processing of plantation sawn timber and wood panels into
products like furniture, joinery , roof trusses. This way the plantation industry further processes most of
the timber it harvests creating more jobs. The native forest industry does not even get into the first hurdle
of processing as they export most of their products overseas as chips. It does not provide the raw
product for further processing and so it is nonsensical to put money, legislative backing and time into the
native forest industry while failing to capture and increase jobs in the plantation sector.
The irony of course is that most of those jobs are in regional Australia so it would match the
Government's rhetoric perfectly should they chose to deliver in this area.
Evidence was given that about 60% of wood logged from native forest is chipped and exported [7] and
that is increasing and will continue to do so under the RFAs. Evidence was also given that this process is
heavily subsidised and the community receives a grossly inadequate return on the use of its resource.
The majority of Australia's processed wood needs are in fact being met by the plantation sector and this
process will continue despite the continuing heavy subsidy of the native forests sector. [8]
The overall effect of the evidence, particularly that of economic consultants, was that jobs would continue
to be lost in the native forests sector covered by the RFAs and generated in the plantation sector, which
has been ignored by the RFAs.
With indirect jobs, the position only gets worse. With the increasing dominance of woodchipping in native
forest logging, indirect employment in this area will continue to decline. It is apparent that government
subsidies to increase downstream processing have had an insignificant effect.
By contrast, in the plantation sector, not only is the employment multiplier greater, it will continue to
improve regardless of the relative lack of government assistance.
If the government was to match its regional employment and development rhetoric with positive action it
would be addressing a number of issues holding the plantation sector back – not continuing to prop up a
native forest sector ever more in thrall to woodchipping interests which appear, from the evidence to
have the lowest levels of employment and the most minimal multipliers.
It is unfortunate but true that the plantation industry is at a crossroads where there will be losses of
potential downstream jobs as a result of the RFA's. Prices of native forest logs are now so low that there
are starting to be stockpiles of sawlogs and export of unprocessed plantation sawlogs.
The Burnie pulp mill closed despite the imminent signing of the Tasmanian RFA meaning hundreds of jobs
disappeared in an area that could ill afford to lose them. If the RFA were truly about guaranteeing jobs
this would not have happened. It would also not have happened if the industry in the area were
sustainable. If the industry were based in plantations they may have stood a chance as there is little doubt
a Japanese decision to source all chips from plantation areas within a decade had asignificant impact on
the decision.
This bill which potentially exposes the Commonwealth to huge compensation pay outs has no guarantee
about investment or jobs. If it is before the Senate in order to help increase employment in rural and
regional areas it will have the effect of suppressing employment in a growing sector and presiding over its
dwindling in a declining sector.
3. The RFA process unfairly discriminates against the plantation industry
The National Forest Policy Statement (NFPS) [9] is claimed to be the impetus for the Regional Forest
Agreement legislation. In the explanatory memorandum for the Bill it states that the bill gives legislative
support to the RFA process `as part of the implementation of the National Forest Policy Statement' [10].
The NFPS is fundamentally based on the transition from old growth forests to regrowth and plantation
timber forests. However the regional forests agreement process and legislation not only appears to ignore
the plantation sector, provides no information from that sector and also significantly disadvantages it.
With the information that has been made available to this committee it is difficult to believe that that the
Commonwealth and states have accidentally overlooked both the trends in the timber industry, the goals
of the NFPS and the considerable propping up given to the native forest sector at the expense of the
plantation industry.
The forests issue has long been portrayed in Parliament and in the media largely as a stoush between
loggers and environmentalists. This is a storyline which might have better pictures attached to it and one
which suits the emotive requirements of lobby groups, but the truth is rather more complex.
In her submission and evidence, Judy Clark compellingly established that the Australian forest industry is
now more a plantation than a native forest industry (see below chart) [11] and that this will become more
and more so as time goes on. However, as she also compellingly pointed out, an observer would not
learn this from listening to those who profess to represent the forest sector or forest communities or glean
such an understanding from consideration of the RFAs or the RFA legislation.
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Possibly nothing so much emphasises the flawed nature of the RFA process and legislation as its failure to
consider the largest forest resource, the only increasing forest resource, the largest sector of the industry
and the generator of the most employment and the best prospective employment outcomes.
Evidence to the committee from a number of witnesses certainly gives rise to the suspicion that the native
forest tail may be continuing to wag the forest industry dog because many of the major companies
involved have interests in both sectors. Their political imperative has been to protect a highly subsidised
and privileged access to a public resource – the native forests – ahead of using relatively unsubsidised or
more directly or appropriately costed plantation resources.
The Democrats understand that it is natural for interests with extensive subsidies in possession to resist
any measures which threaten to reduce them. But on this issue the Democrats would prefer to see
applied the level playing field rhetoric so often heard from the government. This alone would do much to
preserve native forests, protect biodiversity and reduce social conflict – and it is likely to do so while
boosting employment, contributing to gross national product and fostering regional development.
Instead, the Australian community is being treated to a prime example of doublespeak. The stated goal of
the process is to develop internationally competitive forest based industries and the explanatory
memorandum of the legislation says it is intended to implement a national forest policy statement which
has as its stated goal a transition from native forest exploitation to plantation harvesting.
However, the only options considered in the RFAs are disposal of the native forest resource, ignoring the
fact that fully 75 percent of Australia's sawn timber, woodpanels and paper needs come from plantations
and recycling.
The reality of the process is to perpetuate for as long as possible the most uneconomically unproductive
sector of the industry and to frustrate for as long as possible the promised move to plantations. This is at
best illogical and at worst an indefensible position for a responsible Senate to enshrine.
The process of subsidy deserves examination in greater detail. In every single piece of information on the
pricing of native forest logs and public plantation logs the native forest logs of similar grade are always
priced less – often much less - than plantation logs even though the two parts of the industry compete in
the same final market.
Since one suspects that the accountants have done a better job of incorporating costs and returns into the
price of the public plantation log, the clear implication is that the equally public resource of the native
forest log is virtually being given away. That is a direct subsidy to the native forest industry, and indeed –
in 60 percent of cases – a direct subsidy to the lowest productivity use of the log, a direct subsidy to the
woodchipping company and presumably, if the woodchipper takes only a normal rate of profit, a direct
subsidy to the usually foreign consumer of chipboard, cardboard and paper.
Australian governments have been prone to get very testy with other governments slipping subsidies to
their primary product exporters but the point here is that it is Australia's plantation industry and Australian
employment that suffers as a result. There is an argument that should be mounted that the desirable
change should be helped to make sure pricing policy is consistent with industry policy direction.
Another subsidy is the hundreds of millions of dollars in compensation to the states for the RFA outcome
which in some places defies logic. For example, Tasmania is slated to receive $70 million in
compensation directly related to RFAs even though the area available for native forest logging has
significantly increased! [12] Tasmania will also reap additional funds from the Natural Heritage Trust
fund.
Another example is at Eden where the RFA the NSW government are presently negotiating will pay $6
million to build a new sawmill at Eden. The company who are the beneficiary will close two existing mills
in Bombala and Cooma and put only $2million of its own money into the new mill. The plantation sector
does not enjoy this sort of largesse but is in the same market.
The taxpayer also faces an opportunity cost in putting good money after bad propping up an industry
sector which is in decline in any case. Every dollar to prop up the native forest industry is undermining the
more competitive plantation sector. Another less economically tangible opportunity cost is the
monopolisation of bureaucratic and legislative time and resources by the least productive sector.
The response to this evidence of discrimination from some other Senators was a suggestion that yet
another committee examine the plantation sector. The Democrats do not support this – if the RFA bill is
passed, the dubious privileges of the native forest sector will have been locked in and all the Senate will
have to offer the plantation industry will be an empty gesture or intellectual exercise. It could only be of
assistance if there was a possibility the RFA's could be changed as a result.
In conclusion, it is clear that the plantation industry is significantly disadvantaged by the Regional Forest
Agreement process and that it will become more so in the near future. The RFA bill is fundamentally
flawed and cannot come anywhere near meeting its stated objectives of fostering internationally
competitive forest based industries and assisting in the move to a plantation based industry. It is ludicrous
to for the Senate to perpetuate such a patent untruth.
4. The RFA process will destroy many areas of native forests including old growth areas and
fails to protect Australia's biodiversity contrary to an international agreement
It is extremely worrying that a fundamental part of the RFA's seems to have gone so awry. Indeed there
was strong evidence that basic scientific criteria agreed upon had been corrupted by industry and
bureaucrats involved in the process to the detriment of natural areas and the gain of the chipping industry.
Peter Robinson of the WA Forest Alliance told the committee that:
“There is a complete lack of scientific credibility to the RFA, and I have here
before me and I will submit to the committee, a two page summary of some of the
statements made by the most pre-eminent scientific organisations in Western
Australia, including the Royal Society of WA, the Ecological Society of Australia,
WA Branch, the Kings Park and Botanic Garden, the WA Museum and also
independent academic scientists, all pointing out that the WA RFA is absolutely not
based on science” [13]
Well respected forest biologist, Professor Harry Recher starts his submission to the inquiry with the
strong statement “The Regional Forest Agreement process is a political exercise with the primary
intent of guaranteeing resource security to the timber industry. The establishment of a
comprehensive, adequate and representative system of forest reserves, the protection of old
growth forest and wilderness and the conservation of Australia's rich forest biodiversity are
secondary considerations. Despite this, science has been used to validate the process and create a
public image of balance and conservation”. [14]
The Blue Mountains Conservation Society in their submission claims that the RFA's in NSW will cause
the regional extinction of over 25 fauna species and 100 plants due to inadequate reserves and their
vulnerability to logging. They also point out that there are `major problems with reserve design and the
lack of wildlife corridors both north-south and east-west. The Janis criteria and targets for
ecosystem and species survival have been ignored' [15]
It is claimed that scientists involved in the original establishment of the JANIS and indeed the
comprehensive, adequate and representative criteria believe it is defective. Indeed Professor Harry
Recher said: “The group of scientists appointed by the Keating Government to develop criteria on
which to base a CAR system were no doubt well intentioned. However, they failed to follow
fundamental scientific protocols and were exploited by the political system to validate the
granting of resource security to the timber industry after the Keating government had failed to
pass the resource security legislation in Parliament”. [16]
A perusal of the evidence submitted demonstrates it is at best open to interpretation whether the criteria
have been followed in a professional way by the bureaucrats and at worst deliberately made to be
defective.
The international convention on biodiversity is also at risk with many rare and endangered species and
ecosystems endangered from the RFA's. This seem to be little understood by the Federal government
who appear surprisingly unconcerned. It is also astonishing that in a separate piece of legislation under
consideration by the Senate the Environment Protection and Biodiversity Conservation Bill, all areas
included in an RFA are excluded.
Since the RFA's will deleteriously affect biodiversity, breach our international agreements and are based
on incorrect information, it is gravely concerning that another piece of commonwealth legislation, allegedly
the prime one to protect Australia's biodiversity, would lock out our forest areas.
Ironically this means the industry is not based on its stated goal of ecological sustainability which will
eventually be to the detriment of the industry and the workers in it. However it is not responsible to
simply wait until the total collapse of the forest industry to prove the point. There are enough indicators so
far to trigger a precautionary approach to forest management, but this other international goal seems to
be anathema to State and federal officials and some industry representatives.
“The worst thing about the decision is that yet again good science has been
compromised by backroom political deals” [17]
Senators are now being asked, in the face of much independent evidence to the contrary, to take it on
good faith that the promise of JANIS criteria and comprehensive, representative and adequate reserve
systems will be met with the RFA process.
While the rhetoric is of a world class reserve system and ecologically sustainable forest management
practices developed and faithfully implemented “There are sufficient scientific data and other objective
data to demonstrate that this assumption is false for all of the regions in which the RFA process has been
completed” [18]
Even if the overwhelming evidence to the contrary were wrong, even if you take in good faith the
promises the states make over the science of the RFA, there are significant indicators that something is
amiss when you look at the milestones that have been glibly promised to be met in the scientific area.
Taking Tasmania as a case study, we are told that a number of important milestones have been bypassed
in the short term and may, in the nature of many such promises, never, ever happen in the long term.
Promised world heritage assessment has still not been done under the signed Tasmanian RFA.
The submission from the Tasmanian Conservation Trust also lists the following concerns:
- “The strategic plan for implementing the CAR reserve system on private land was to be
developed no later than three months from commencement of the RFA (March 1998). The
plan was not finalised until, and is dated, September 1998.
- The State was to publish a description of the methods of sustainable yield on Public Land
including for special species sawlogs by 31 October 1998. This did not happen.
- The State was to publish and make publicly available compliance audits of the Forest
Practices Act and Code and the code of reserve management annually commencing in
1998. This did not happen.
- The state was to introduce in respect of private land, mechanisms to encourage native
vegetation retention and management by the year 1999. This did not happen.
- The State was to develop and implement a Threatened Species Protection Strategy by 31
December 1998. This did not happen.
- The State was to complete and publish silvicultural guidelines for the management of
commercial forest types by December 1998. This did not happen”. [19]
Perhaps the states with their vested interests could be excused for failing to meet promised standards and
deadlines if there were a strong regulatory back up, however the Commonwealth has shown little if any
inclination to force the states to meet the deadlines.
Environmental issues may also be compromised where there is fear of compensation. Professor Norton
points out that where new information comes to light, that for example there maybe a previously unknown
population of a rare and endangered species or a management practice may undermine key
environmental goals, a decision to reallocate land use may be avoided for fear of compensation penalties.
In conclusion the RFA's have failed dismally to protect high quality conservation areas, are unsustainable
and based on rejected science. It exposes the commonwealth to potential uncapped compensation and
we will lose many areas of ecosystem biodiversity and many irreplaceable native forest areas. At least
one state has not met basic conservation requirements under the RFA.
The RFA legislation cannot be passed with any exemptions from commonwealth legislation to protect the
environment as it is clear the assumption the environment is protected by the RFA's is totally incorrect.
The Democrats recommend that should the bill be debated all exemptions from environmental legislation
be omitted. We further recommend that the Senate in its consideration of the Environment Protection and
Biodiversity bill omit the recommendation that the RFA's be excluded from the provisions of that bill.
5. The RFA process discriminates unfairly against other important cultural values and social
and economic benefits provided for by native forest areas
The Deloraine Aboriginal Cultural Association has concerns arising from their experience of trying to
protect historical and cultural sites near to where logging has taken place. Indeed they have major
concerns about the whole RFA process.
“The Tasmanian Aboriginal community are fully aware that we have been
excluded from the social, economic, environmental and heritage assessments and
issues and all effective management systems and processes. The Aboriginal
community would like to stress that we have values across all areas of the
assessment process and, due to the definition of these assessments, they have been
severely overlooked and disadvantaged….(we) feel fairly ripped off in relation to
our participation in the process.” [20]
Their complaints about lack of consultation have been echoed by the Aboriginal Legal Service of
Western Australia who were also concerned with the section of the RFA bill that removes
Commonwealth Heritage Protection under the Australian Heritage Commission Act and Environment
Protection laws from RFA areas. [21]
The removal of laws designed to protect heritage and the environment, to the detriment of the
environment and cultural and natural heritage remains one of the major sticking points in the bill. [22]
It was strongly argued by a number of groups that the commonwealth laws relating to environment and
heritage protection remain in force in the RFA areas and the Democrats agree with this recommendation.
There are other uses for forest areas that will be affected by this legislation. Sunrise industries in Australia
include tourism growth in natural areas. Forest areas account for an increasing amount of tourist dollars
and as new market areas are developed more areas open up and more value adding to tourism
experiences is developed.
Not only is the tourism industry a significant growth industry in native forest areas, it has better multiplier
effects than the woodchip industry and its services are delivered on site, in the landscape, rather than
exported as a basic product.
It is hard to imagine an Australia without some of our most significant natural areas, so inculcated have
they been into our psyche after they have been protected. You would no more log Fraser Island now
than the Wet Tropics and these places now account for hundreds of millions of tourist dollars. Yet the
RFA's have the potential to destroy infant and prospective tourist areas for a short term (and
disgracefully underpriced) return. Particularly in terms of opportunity costs, the Democrats predict that
the tourism industry will be one of the biggest losers in the RFA process.
There was evidence that in Western Australia “the tourism industry has been ignored by the WA RFA
process as well and their concerns about the RFA are well catalogued” [23] while another witness
suggested, not unreasonably, that the tourism industry could equally argue for compensation under the
RFA's for the opportunity cost of areas that would be logged and mined. [24]
Briefly in terms of other forest uses, the Wombat Forest Society presented evidence that beekeepers
would be significantly disadvantaged. They also pointed out that a large number of people rely on high
quality water through that forest region which will be detrimentally affected by logging and that irrigators
downstream will be negatively affected.
It is not clear that compensation has been ruled out to those groups and again perhaps there is the
potential for future compensation claims on the commonwealth as a result of the RFA process.
The question is whether it responsible for the Senate to vote on legislation that will certainly destroy areas
of huge income potential which have the ability to create sustainable jobs in local areas, maintain water
quality and generate wealth in return for one off destruction and export of a primary product? The
Democrats do not believe so.
6. The RFA process will be mostly controlled by State governments who have vested or
financial short term interests in the outcomes thereby leading to positions of conflict of interest.
The RFA agreements have been controlled, negotiated and will be managed by sections of state
governments. However serious questions have been raised about their ability to provide objective
assessment and regulation. One lot of evidence pointed to the WA EPA Bulletin 912 which had
produced a landmark report stating that there was a significant conflict of interest in the Department of
Conservation and Land Management and `as long as that is the case the public will have no confidence in
the department or forest management in the RFA” [25]
In fact the conflict of interest is such that CALM is applying its forest management practices in such a
way that it is breaching ministerial conditions that are set under the environment protection legislation of
that state. Peter Robertson pointed out that recent court cases in WA had declared CALM was found to
have breached its own laws.
In Tasmania, there is a serious competition problem as the state owned logging agency is also the
provider of `independent' advice to the ministers making decisions in that area. There is no way that
advice could be regarded as consistent with ecological sustainability and no way that the public could
ever regard the advice as independent.
In other states royalties provide short term boosts (albeit very cheaply priced ones) to state coffers and
there is a reluctance to unfavourably match those tangible amounts with less tangible ones such as the
value of clean water from a forested catchment.
It is difficult to see why there is such secrecy around negotiated amounts for royalties and why there are
claims it has to be `commercial in confidence'. The forests are on public land and are a common resource
and there is a powerful argument that such secrecy encourages deal making behind closed doors to the
detriment of the environment and the economy.
In conclusion, the RFA negotiations have been conducted by State departments with significant conflicts
of interest and will be voted on by some Senators who it could be argued, have potential conflict of
interests. It is difficult to see how a fair and objective process could have happened in such a climate and
reasonable to assume that the RFA's can have little public confidence as a result.
7. The RFA process raises constitutional issues and poses potential legal and financial
difficulties on the Commonwealth and the taxpayer
Although the final arbiter on the legality of legislation is, quite properly, the courts, it is also a proper
function of the Senate to at least draw attention to potentially legally flawed legislation.
Legally, this legislation sets some interesting precedents. It says that some other Commonwealth
legislation, normally assumed to be all encompassing and for the protection of values like heritage and the
environment, shall not apply inside forests subject to RFAs. It also says that the community can know
that an agreement has been reached but not what the specific terms of the agreement are, and that the
normal powers of the community's representatives – we politicians – are going to be circumscribed in
relation to these agreements.
Mr Corr certainly believed that the RFA legislation could face a valid challenge:
“It was said in one case by that well known radical, Chief Justice Barwick, . . . that
to bind the citizen by a law, the terms of which he has no means of knowing, would
be the mark of tyranny and that, I think, is a situation which is possible here. I
think there is some doubt, which I have alluded to in my opinion, that because of
this the act itself may be invalid.” [26]
Mr Corr also thought that the difficulties being encountered in some states in reaching RFAs might mean
the act was open to challenge on the basis that some states were receiving a preference in trade or
commerce.
The committee sought an opinion from the Attorney-General's Department, the effect of which was that it
was not believed that Mr Corr's fears were grounded. However, the final arbiter is the courts, an
expensive option for the taxpayer.
The Democrats are of the view that the bill, which does enter some uncharted legal waters, deals with an
area where legal challenges are likely. Such challenges may arise on even a quite narrow grounding,
because the dispute has been a long and contentious one in the Australian community and recourse to the
law in such situations can be a tactical move as much as a serious bid for remedy.
The Senate should bear this possibility in mind and consider whether it is appropriate for the bill to be put
before the Senate with such uncertainty.
The legislation also potentially exposes the commonwealth to compensation where the compensation is
linked to an RFA. It has been argued and referred to earlier in the report that if the RFA has been agreed
upon but is fundamentally flawed the Commonwealth may be vulnerable to compensation or persuaded
to avoid protecting some areas because of the threat of compensation.
It is hard to imagine how the States will avoid the opportunity presented for exploiting compensation from
the commonwealth in as many forms as possible. The question must also be asked:- is it responsible for
the Senate to pass this legislation with effectively a blank signed cheque from taxpayers to a declining
industry to give compensation in a process that is not scientifically sound?
Can the government quantify the maximum amount that taxpayers are risking on this legislation? It is
already claimed that the Government will be paying $70 million to the industry in Tasmania when they
actually got an increase in the area available for logging and an increase in the quality of the areas
available! [27]
Another legal conundrum could be predictable arguments from both the Labor and Coalition parties that
even if the RFA process is flawed it will be dealt with independently of the bill. They will no doubt use
this as an argument that the bill can pass and the RFA's themselves can be fixed up later. Just as
environment and planning courts refuse to argue future possibilities, we would argue that it would be
dangerous for the Parliament to rely on that assumption.
The RFA process must be put right and be acceptable to all groups before RFA legislation is put and
passed by Parliament. Only then will the industry, Governments and the community [28] know they have
certainty on the future uses of Australian native forests.
The RFA's have been touted by Governments as `the last word' on forests. It has been claimed that once
the agreements are signed they are iron clad guarantees about what will happen in forest areas for many
years. However this appears to be incorrect. Consultant Alistair Graham stated that after the Tasmanian
RFA had been `signed by some of the highest ministers in the land, the officials are still blithely going on,
chucking out thousands and thousands of hectares by changing the boundaries of the maps that were
behind the documents, which the minister signed…'
He has commented that the boundaries changed so areas available to logging increased and areas for
reserves decreased. Worryingly he also pointed out that the only reason it was known was that the
Tasmanian Conservation Trust had a limited period of time that data to assess this was available to them
and that `when those data licences expire no-one will have them and no-one will know what is going on'.
[29]
It is unclear to the Democrats why such information about use of a public resource remains confidential to
the state and industry groups and we would recommend that this data be made public in all areas where
logging agreements are being considered and remain public after such agreements have been made. It is
difficult to understand why the community would be refused access to such fundamental information on a
permanent basis.
In Western Australia it is claimed that it is highly likely changes will occur. It is also claimed that those
changes will result in increased claims for compensation from the commonwealth as the high log volumes
allowed for by the RFA are simply not sustainable. [30]
How can the Commonwealth be confident that the RFA's will actually be implemented in a way that is
consistent with the original document that was signed when states are already fiddling about with the
agreements or making promises that they will?
Significant problems lie with the auditing of RFA's. One solution considered by the Democrats is that the
RFA's be laid before both houses of parliament and be subjected to disallowance procedures. However
this supposes the legislation be passed in its current or close to its current form. As the whole process is
significantly problematic it might wise to consider this option in light of a bill that has addressed the
significant concerns raised in the public process and in this report.
A further legal question has been raised with the Democrats with regard to the requirement by regulation
to cease exports of woodchips from an area over which an RFA has not been signed by June 30, 1999.
The question raised regards the constitutionality of this arrangement if the states are seen to be treated
unequally. In other words if the Commonwealth allow Tasmania to export chips, but not NSW or WA is
that discrimination between states and is it unconstitutional?
The Democrats do not claim to have the answer to this, however if it is an arguable case. Perhaps this is
another legal context to examine the bill in.
If it is possible that the RFA legislation could be found to be unconstitutional, that there are a number of
legal uncertainties and the commonwealth is exposed to unnecessary and potentially unlimited
compensation, the Democrats argue the legislation needs to be withdrawn and examined to some
resolution of these issues before the Senate can responsibly decide on the legislation to its satisfaction.
Conclusion
It has unfortunately become clear that the Government has focussed on propping up a declining industry
while inhibiting a growing plantation industry. The RFA legislation will:-
- Fail to prevent job losses in the favoured sector
- Inhibit jobs growth in other sectors
- Destroy areas of ecological importance
- Discriminate unfairly against other industries and values
- Limit a developing industry sector
- Provide complex legal uncertainty
- Entrench RFA agreements that are flawed
- Expose the commonwealth to potentially unlimited and in some cases unjustified compensation
- Fail miserably in its stated goal of implementing the NFPS
- Fail miserably in resolving community, political and industry conflict over Australia's native forests.
- Fail miserably in embracing the aspirations of Indigenous people from areas under an RFA
- Misdirect government subsidies to prop up a flawed process
Recommendations
That for all of the reasons listed the Democrats believe the RFA legislation is not ready for parliament at
this stage. The legislation should be set aside until a genuine RFA process has been negotiated and until
legal inconsistencies are evaluated and resolved.
The Democrats cannot support this legislation at this time with so much uncertainty attached to it , with its
destructive job effects, its destructive effects on valuable native forest areas, its drain on the public purse
and the potential for open ended compensation claims, and the unusual protection of decision making
from review or scrutiny for extraordinary periods.
We further recommend that in any new deliberations on RFA's Governments note the positive
contribution made by the WA Forest Alliance who submitted an alternative way the RFA process should
operate [31]. Governments would be well advised to examine this closely as we believe it is a genuine,
positive, and comprehensive contribution that would avoid many of the serious problems about the bill
raised in the committee and public process.
The Democrats would support a full references committee inquiry into the Australia's forests and view
favourably Senator Shayne Murphy's terms of reference as an appropriate starting point for committee
negotiations.
Should RFA legislation ever be passed by the Senate the Democrats believe each RFA be laid before
both Houses of Parliament and made a disallowable instrument.
We further recommend that when the process is re-examined and when RFA legislation is put before
Parliament that this bill not be subject to any exemptions from any commonwealth environment legislation
under any circumstances.
Signed
Senator John Woodley
Member
Senator Andrew Bartlett
Participating Member
24 February, 1999
Footnotes
[1] Tasmanian Conservationist, July 1997
[2] Peter Robertson, West Australian Forest Alliance evidence pp174
[3] Forest Protection Society submission 6 pp3, evidence from p 193
[4] Judy Clark hand out supplied to inquiry hearing 2 February 1999
[5] Senator Shayne Murphy evidence pp 76
[6] Judy Clark handout provided to inquiry
[7] Judy Clark handout supplied to inquiry dated 2 February 1999
[8] Judy Clark ibid
[9] Commonwealth of Australia 1992 National Forests Policy Statement
[10] Explanatory memorandum Regional Forests Agreement Legislation
[11] Judy Clark 1999 handout presented to inquiry as evidence
[12] Alistair Graham evidence pp 103
[13] Peter Robertson evidence pp 175
[14] Professor Harry Recher submission no 258 p1
[15] Blue Mountains Conservation Society submission 232 pp 1
[16] Professor Harry Recher submission no 258 p3
[17] Blue Mountains Conservation Society submission 232 p 1
[18] Professor Tony Norton submission 338 p 1
[19] TCT submission 30
[20] Darlene Mansell evidence pp 143
[21] Aboriginal Legal Service WA Submission no 68
[22] Professor Tony Norton submission 338 p 1
[23] Peter Robertson evidence pp 175
[24] Peter Sims evidence pp 106
[25] Peter Robertson evidence pp 175
[26] Gary Corr evidence p206
[27] Alistair Graham evidence 103
[28] Alistair Graham evidence pp111
[29] ibid
[30] Peter Robertson evidence 175
[31] WA Forest Alliance 1998 `The WAFA Proposal for a comprehensive, adequate and representative
forest conservation reserve system and sustainable timber production in WA, evidence supplied to
committee hearing.