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2002
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
SENATE
REGIONAL FOREST
AGREEMENTS BILL 2002
EXPLANATORY
MEMORANDUM
(Circulated
by authority of the Minister for Forestry and Conservation, Senator the Hon Ian
Macdonald)
The Regional Forest Agreements Bill 2002 (RFA Bill) provides legislative
commitment and support for the outcomes of the Regional Forest Agreements and
for ongoing action to implement the Forest and Wood Products Action Agenda
through the Forest and Wood Products Council.
Since February 1997, ten
Regional Forest Agreements (RFAs) have been concluded between the Commonwealth
and the Victorian, Tasmanian, New South Wales and Western Australian State
Governments. As a key feature of the National Forest Policy Statement of 1992,
the RFAs have a 20-year life and have delivered:
• a comprehensive
adequate and representative reserve system of 10.4 million hectares, adding 2.9
million hectares to existing reserves;
• 20-year certainty in resource
supply;
• $100 million in Commonwealth funding under the Forest
Industry Structural Adjustment Program (FISAP) to encourage more value-adding of
native timber; and
• participation of local community and stakeholder
groups in the assessment of environmental, social and economic values and the
development of options for sustainable development of RFA regions.
Action
Agendas, comprising an integral part of the Government’s “Investing
for Growth” policy, are aimed at increasing investment, expanding market
access, increasing research and innovation, improving competitiveness, an
efficient business environment and the sustainable use of natural resources.
The Forest and Wood Products Action Agenda, announced by the Minister for
Forestry and Conservation in November 2000, was developed as a result of an
industry stakeholder workshop in 1999 and subsequent working group
deliberations.
The RFA Bill binds executive governments to certain
Commonwealth obligations under Regional Forest Agreements and to implementation
of the Forest and Wood Products Action Agenda through the Forest and Wood
Products Council.
Financial Impact Statement
There will be
no direct financial impact from passage of the RFA Bill. Costs associated with
implementation of the RFAs and the various actions in the Forest and Wood
Products Action Agenda are separately funded.
Particularly since the 1970s, governments have faced the task of balancing competing interests of environment/conservation, industry and recreation regarding the use, management and conservation of forests and forest resources. The National Forest Policy Statement of 1992 provided a framework agreed by Commonwealth and all State Governments for a long-term and lasting resolution of conservation, forest industry and community interests and expectations concerning Australian forests. The Statement required joint Commonwealth-State comprehensive regional assessments of environmental, heritage, economic and social values of forests.
These assessments formed the basis of negotiated Regional Forest Agreements (RFAs) between the Commonwealth and the States, that provide for both future forest management and the basis of an internationally competitive and ecologically sustainable forest products industry. The agreements provide for a comprehensive, adequate and representative forest reserve system and clearly identify those forest resources available for multiple use, including resources for sustainable timber harvesting.
Conflict over the use of native forests had established a climate of
uncertainty for investors and contributed to community uncertainty that
environmental values were being adequately protected. These conflicts stemmed
mainly from the perception by some that harvest rates were
unsustainable.
The Government seeks to provide a 20-year framework for continuous
improvement in forest use and management through:
• a comprehensive
regional assessment process on forest uses and values;
• a
comprehensive, adequate and representative reserve system based on nationally
agreed criteria;
• 20 years’ certainty of access to forest
resources for the timber industry;
• support for innovative,
internationally competitive forest industries;
• local community and
stakeholder participation in the assessment of forest values and the development
of options for sustainable development; and
• sustainable forest
management of the whole forest estate.
Against this background, the Resource Assessment Commission conducted a
Forest and Timber Inquiry that reported in March 1992. The Commission
considered a range of options for the use of Australian forest and timber
resources and subsequently recommended that a nationally agreed framework for
forest use and conservation be developed.
Under the National Forest
Policy Statement of 1992 (NFPS) the Commonwealth and all State Governments
(Tasmania agreed in 1995) established three broad goals for native forest
management:
• to maintain an extensive and permanent forest estate in
Australia;
• to manage that estate in an ecologically sustainable
manner; and
• to develop internationally competitive and ecologically
sustainable forest-based industries that maximise value-adding opportunities and
efficient use of resources.
A vital element of the NFPS was that joint
Commonwealth/State comprehensive regional assessments of the environmental,
heritage, social and economic values of Australia’s forests would be
undertaken. These assessments would then form the basis for the negotiation of
Regional Forest Agreements (RFAs) between the Commonwealth and individual State
or Territory governments.
The RFAs subsequently negotiated were
consistent with the NFPS and the National Strategy for Ecologically Sustainable
Developments; relevant Commonwealth environmental legislation; and State
environmental, forestry, mining, planning and other land use legislation. These
RFAs covered all the major areas where native forest harvesting occurs and from
where timber is exported, constituting the major areas of conflict and
uncertainty over sustainable forest management.
RFAs have now been agreed
in 10 regions. The RFA Bill seeks to underpin the agreements
by:
• precluding the application of controls under the Export
Control Act 1982, and other Commonwealth laws which have the effect of
prohibiting or restricting exports of wood from a region where an RFA is in
force (supporting the current Export Control Regulations which have removed
export controls where RFAs are in place);
• preventing application of
Commonwealth environmental and heritage legislation as they relate to the
effect of forestry operations where an RFA, based on comprehensive regional
assessments, is in place (reflecting provisions already in the EPBC
Act);
• ensuring that the Commonwealth is bound to the termination and
compensation provisions in RFAs and cannot effectively change these provisions
in the future without legislative action; and
• binding future
executive governments to consider advice from the Forest and Wood Products
Council on the implementation of the Forest and Wood Products Action.
(a) Groups Affected
In considering the proposed option, affected
groups would include conservation and environmental interests, forest and forest
products industry operators and their workforces, recreational forest users and
the broader community. They were all consulted and had the opportunity of
participating in the RFA process.
(b) Costs and Benefits of the
Proposed Option
The proposed option provides a high degree of certainty
for conservation and environmental interests, forests and forest products
industry operators, recreational users of forests and the broader community in
that significant commitments made under RFAs will be supported by
legislation.
The environmental groups’ and broader community
perceptions about the level of protection afforded to the environment have been
addressed through a nationally agreed reserve system that includes more than
double the proportion of reserves recommended by the World Conservation Union
(IUCN) and the World Wide Fund for Nature.
For industry, the RFA process
has delivered a better understanding of the resources in RFA areas, agreed
sustainable yield, 20-year certainty of access and industry development
strategies in each RFA. This provides a stronger base for investment in
industry improvement and value adding. The legislation also ensures that
compensation would be payable as provided in the RFAs and that the Forest and
Wood Products Action Agenda will be implemented through the Forest and Wood
Products Council.
The Commonwealth invested over $328 million in the RFA
process, covering comprehensive regional assessments and structural adjustment
packages. The RFAs also have the potential for additional costs, in the event
that RFA commitments are not met and result in compensation becoming payable.
Within the framework of the RFAs, State Governments have retained their
constitutional responsibility and flexibility to manage land sustainably for a
variety of purposes.
For each RFA, a comprehensive regional assessment
was undertaken which addressed:
• sustainable yield and timber
supplies;
• areas required for reserves; and
• employment
effects.
These comprehensive regional assessments were widely promulgated in
the relevant regions and are available to the public from the Department of
Agriculture, Forestry and Fisheries.
Overall, the RFAs have resulted in
an increase in the area of forest reserves, and in some regions have resulted in
a reduction in the wood supply. However, there have been no overall reductions
in net employment as a result of the RFA process. This has been achieved
because the process has resulted in:
• some employment being created
where an increased effort in plantation establishment has been used to offset a
reduction in the native forest wood resource;
• some potential increase
in employment in reserve management;
• Governments facilitating
industry in adapting to the changed nature of the resource (for example, by
adjusting to the milling of smaller diameter logs); and
• the prospects
of increased investment in processing facilities given the greater certainty
about wood supplies.
The RFAs do not introduce any restrictions to
competition. The Commonwealth has no role in the allocation of wood resources
and there is nothing in the RFAs that instructs State Governments about how they
should allocate the available timber resources to industry.
The Regional
Forest Agreements Bill does not impact on the Government’s RFA
commitments. These commitments are being implemented; the Bill does not
interfere with implementation of these agreements. The Bill simply provides
more certainty to RFA outcomes by binding the Commonwealth Government to
commitments to State Governments as contained in the RFAs.
The provision
in the Bill that Part 3 of the Environment Protection and Biodiversity
Conservation Act 1999 (EPBC Act) does not apply to an RFA forestry operation
has no new implications for industry or the environment, since it reflects
Section 38 of the EPBC Act.
The Commonwealth released a policy paper outlining the proposed legislation
in December 1997. The paper, Commonwealth Legislation to Complement Regional
Forest Agreements, was circulated to all States and Territories as well as
to a large number of stakeholders, including industry participants, industry
associations and conservation groups. The paper set out the basis of the
proposed legislation to support RFAs and called for submissions by 31 January
1998. In addition, Commonwealth officials discussed the proposal with industry
and conservation groups in Sydney, Melbourne and Canberra. Submissions and views
expressed in the consultations were considered in finalising the Bill.
As indicated above a series of options, attempted in the 15-20 years to 1992
to resolve the various conflicts over native forest management and use, were
only partially successful. Following on the Resource Assessment Report and the
NFPS, the RFA process has delivered a permanent native forest estate that is
sustainably managed and a comprehensive, adequate and representative reserve
system that far exceeds international standards.
The RFAs cover the East
Gippsland, Central Highlands, Gippsland, North-East and Western regions in
Victoria; the North-East, Southern and Eden regions of New South Wales; the
South-West region of Western Australia; and Tasmania.
The benefits of
the RFAs flow from stability in forest management, access and use over 20 years.
The RFA Bill reinforces those benefits by ensuring that Commonwealth governments
will not materially alter the conditions negotiated in RFAs. It is open to
State Governments to introduce similar legislation into their Parliaments. To
date, only the Tasmanian Parliament has passed similar legislation.
The ten RFAs that have been signed to date will remain in force for 20 years
and will be reviewed every five years. This process of reviews of progress with
the performance and implementation of RFAs will provide an opportunity to
examine the operation of the legislation.
The Act will be called the Regional Forest Agreements Act
2002.
This clause provides for the substantive provisions of the Act (sections
3–11) to commence on a day to be fixed by proclamation, or failing that,
on the first day following six months after Royal Assent.
This clause declares that the purposes of the Act is to provide
legislative support for the commitments entered into by the Commonwealth in
RFAs, the Action Agenda and National Forest Policy Statement and to provide for
the continued operation of the Forest and Wood Products Council.
Clause 4 lists definitions for several terms in the Bill.
This clause ensures that the Crown in right of the Commonwealth is bound
by the Act.
This clause provides that forestry operations in regions subject to RFAs
are excluded from certain Commonwealth legislation. This is because the
environmental and heritage values of these regions have been comprehensively
assessed under relevant legislation during the RFA process and the RFAs
themselves contain an agreed framework on ecologically sustainable development
of these forest regions over the next 20 years.
Subsection (1) precludes
any controls under the Export Control Act 1982 being applied to RFA wood
sourced from a region while an RFA is in force for the region.
Subsection
(2) prevents any other export control law being applied to RFA wood, unless that
export control law expressly refers to RFA wood. Export control law is defined
as a provision of a law of the Commonwealth that prohibits or restricts exports
or which has the effect of prohibiting or restricting exports.
Subsection
(3) provides that the effect of RFA forestry operations must be disregarded for
the purposes of section 30 of the Australian Heritage Commission Act
1975. Section 30 of the Australian Heritage Commission Act 1975
requires that where a Commonwealth action will adversely affect a national
estate place, the person responsible for the action must be satisfied that there
is no feasible and prudent alternative to the taking of that action and that all
measures that can reasonably be taken to minimise the adverse effect will be
taken.
Subsection (4) provides that Part 3 of the Environment
Protection and Biodiversity Conservation Act 1999 (EPBC Act) does not apply
to RFA forestry operations. Part 3 of that Act prohibits persons from taking
action that has, will have or is likely to have a significant impact on matters
of national environmental significance except as provided in the Act. Matters
of national environmental significance are defined in the EPBC Act. This
subsection reflects a similar provision in the EPBC Act (Section 38).
This clause ensures that the Commonwealth cannot terminate an RFA in a
manner inconsistent with termination provisions of the RFA in force at the time,
except by amendment of the Act by the Parliament. It also ensures that
following commencement of the Act, the Commonwealth cannot agree to subsequently
change termination provisions in any RFA without amendment of the Act by
Parliament.
Subsection (1) ensures that the Commonwealth is liable for any
compensation it is required to pay to a State under compensation provisions
contained in an RFA in force at the time the Act commences or at the time the
RFA commences, whichever is later. This ensures that, without prior legislative
action, the Commonwealth remains liable for any breach of an RFA, as determined
by the compensation provisions contained in that RFA. It also ensures that
following the commencement of the Act, the Commonwealth cannot agree to
subsequently change compensation provisions in any RFA without amendment of the
Act by the Parliament.
Subsection (2) ensures any Commonwealth liability
under subsection (1) incurred when an RFA is in force remains, even though the
RFA may subsequently be terminated or expire.
Subsection (3) ensures that
compensation payments liable to be paid by the Commonwealth to a State under
subsection (1) may be recovered as a debt and are payable from funds
appropriated by Parliament.
This clause requires the Minister to publish a notice in the Gazette,
giving details concerning the region covered and the relevant dates, as soon as
practicable after an RFA has been entered into (subsection (1)) or subsequently
ceases to be in force (subsection (2)). These subsections, while not affecting
the commencement or cessation of an RFA, ensure that public notice is given of
such a commencement or cessation.
Subsections (1) and (2) provide that a copy of an RFA must be tabled in
each House of the Parliament with 15 sitting days after the commencement of the
section or the RFA is entered into, whichever is the later, except where the RFA
has been tabled in that House previously.
Subsection (3) provides that a
copy of an amendment to an RFA must be tabled in each House of the Parliament
with 15 sitting days after the commencement of the section or the amendment is
entered into, whichever is the later.
Subsections (4) and (5) provide
that a copy of an RFA annual report must be tabled in each House of the
Parliament with 15 sitting days after the commencement of the section or the
report is provided to the Minister, whichever is the later, except where the RFA
annual report has been tabled in that House previously.
Subsection (6)
provides that a copy of an RFA review report must be tabled in each House of the
Parliament with 15 sitting days after the commencement of the section or the
report is provided to the Minister, whichever is the later.
Subsection
(7) defines the RFA annual report and the RFA review report.
The Forest and Wood Products Council was established under the executive
power of the Commonwealth in November 2000. The effect of this clause is to
ensure that industry consultative arrangements established to build on the RFAs,
the Action Agenda and the National Forest Policy Statement continue at least
until 2004.
Subsections (2), (3) and (4) set out the objects and
functions of the Council.
Subsections (5) and (6) require the Minister
to hold meetings of the Council on request by a majority of the Council and at
least twice each calendar year.
Subsections (7) to (9) provide for a
review of whether the Forest and Wood Products Council should continue to exist
and, if so, its functions and procedures. This review is to be conducted in the
latter half of 2004 by the Council, in consultation with stakeholders in the
forest and wood products industry. The Council must report to the Minister, who
is to table the findings of the review in the Parliament within 15 sitting days
after receipt.
This clause gives effect to Schedule 1.
This item repeals section 38 of the EPBC Act and provides that Part 3 of
the Act does not apply to an RFA forestry operation that is undertaken in
accordance with an RFA. It also provides that RFA, regional
forest agreement and RFA forestry operations have the same
meanings as in the Regional Forest Agreements Act 2002. It has the
effect of correcting an anomaly in the existing section 38 whereby it refers to
a non-existent Regional Forest Agreements Act 1999.
A note
specifies that the RFA operations described in section 42 remain subject to Part
3 of the EPBC Act.
This item repeals the current definition of forest operations based on
the non-existent Act and replaces it with a definition consistent with those
concluded in RFAs. The definition does not relate to any existing RFA, but
applies to regions subject to a process of negotiating a RFA. There are no such
negotiations current.
These items provide that sections 38 and 40 of the EPBC Act and
subsection 6(4) of the Regional Forest Agreements Act 2002 do not apply to RFA
forestry operations, or to forestry operations, that are in World Heritage
properties, that are in Ramsar wetlands or that are incidental to another action
whose primary purpose does not relate to forestry.
These items remove certain definitions in the EPBC Act that no longer
apply as a consequence of items 1-4.