Illegal Logging Prohibition Amendment (Strengthening Measures to Prevent Illegal Timber Trade) Bill 2024 - Commentary on Ministerial Responses [2024] AUSStaCSBSD 124 (26 June 2024)

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Purpose	The bill seeks to amend the Illegal Logging Prohibition Act 2012 to better protect the Australian market from illegally harvested timber and timber products and support legal and sustainable timber trade by improving regulatory tools and action for non-compliance.
Portfolio	Agriculture, Fisheries and Forestry
Introduced	House of Representatives on 27 March 2024
Bill status	Before the Senate

Use of negligence as fault element for an offence
Significant matters in delegated legislation^[195]

2.94 Item 10 of Schedule 1 to the bill seeks to amend section 9 of the Illegal Logging Prohibition Act 2012 (the Act) by substituting a standalone fault-based offence for illegally importing logged timber in regulated timber products with a graduated compliance framework which includes a fault-based offence, a strict liability offence and a civil penalty provision. The fault-based offence in subsection 9(1) of the bill remains the same as in subsection 9(1) of the Act.

2.95 Paragraph 9(1)(b) provides one of the elements of the offence, that the thing is, is made from, or includes, illegally logged timber. Although under the Criminal Code Act 1995 (the Criminal Code), the default fault element for this aspect of the offence would ordinarily be recklessness, subsection 9(2) provides that the fault element for paragraph 9(1)(b) is negligence. The penalty for the fault-based offence in subsection 9(1) is 5 years imprisonment or 500 penalty units, or both.

2.96 Further, paragraph 9(1)(c) provides another element of the offence, that the thing is a regulated timber product. A regulated timber product is defined in proposed section 7 to mean a timber product prescribed by the rules for the purposes of this definition. The proposed amendment therefore seeks to leave the definition of a regulated timber product to delegated legislation, and seeks to move the definition from regulations to rules, providing even less oversight.

2.97 In Scrutiny Digest 6 of 2024, the committee requested the minister’s advice as to whether the Government remains of the view that negligence is an appropriate fault element for the offence in proposed subsection 9(1) of the Illegal Logging Prohibition Act 2013, in accordance with the views expressed in earlier correspondence to the committee. The committee also requested that, if this view did remain, that the minister consider tabling an addendum to the explanatory memorandum containing the key information provided by the minister in that correspondence.^[196]

2.98 The committee drew its scrutiny concerns relating to the appropriateness of leaving the definition of a regulated timber product to rules in proposed paragraph 9(1)(c) to the attention of the Senate.^[197]

Minister for Agriculture, Fisheries and Forestry’s response^[198]

2.99 The Minister for Agriculture, Fisheries and Forestry (the minister) advised that the Government remains of the view that negligence is the appropriate fault element for the offence in proposed subsection 9(1) and that an addendum to the explanatory memorandum will be prepared as soon as practicable.

2.100 The minister advised that proposed section 13A of the bill provides that a due diligence requirement for importing regulated timber products is that the person importing such products has a due diligence system. This would require a reasonable person, as an importer of a regulated timber product, to be aware of the relevant risks and circumstances that may give rise to the risk of importing illegally logged timber products. The minister advised that as such, negligence is the appropriate fault element. This aligns with the Criminal Code Act 1995, where negligence requires such a great falling short of the standard of care that a reasonable person would exercise in the circumstances together with the likelihood that the physical elements exist, or may exist, that the conduct merits criminal punishment. It also aligns with the Guide to Framing Commonwealth Offences, which states that only where it is necessary for a person to be criminally liable based in part on objective standards, rather than subjective mental state, should negligence be specified as the fault element of an offence.

2.101 In relation to the definition of a regulated timber product being left to the rules, the minister advised that this is appropriate because it would continue to enable the definition to be updated to include emerging products and respond to changing operational circumstances. This would maintain the flexibility of the legislation to support industries’ needs and the efficient and effective administration of the illegal logging framework. The minister further advised that the rules would be subject to disallowance and therefore Parliament would have the same level of oversight over rules as it has over regulations.

Committee comment

2.103 The committee welcomes the minister’s undertaking to prepare an addendum to the explanatory memorandum with the additional information provided in relation to the inclusion of negligence as the fault element for the offence in subsection 9(1).

2.104 In relation to the definition of a regulated timber product being left to the rules, the committee reiterates its view that it is more appropriate for definitions that constitute an offence, particularly one subject to significant penalties, to be included on the face of the bill rather than in delegated legislation.

2.105 Noting the minister’s undertaking to prepare an addendum to the explanatory memorandum, the committee makes no further comment in relation to this matter.

Reversal of the evidential burden of proof
Significant matters in delegated legislation^[199]

2.106 Item 12 in Schedule 1 to the bill seeks to substitute section 12 of the Act, which provides an offence for importing regulated timber products. The amendment seeks to introduce a strict liability offence and a civil penalty provision in addition to the fault-based offence that already exists in the Act. Proposed subsection 12(4) seeks to provide that the offence does not apply in any circumstances prescribed by the rules. A defendant bears an evidential burden in relation to these matters.

2.107 Similarly, subsections 17(1), 18B(1) and 18C(1) provide, respectively, for offences relating to processing raw logs without complying with due diligence requirements, not providing a notice of regulated timber products to be unloaded in Australia, and not providing a notice of the processing of a raw log into something other than a raw log. Subsections 17(5), 18B(6) and 18C(5) all provide that rules may prescribe exceptions to these offences. Again, a defendant bears an evidential burden in relation to these matters.

2.108 In Scrutiny Digest 6 of 2024 the committee requested the minister’s advice as to why it is proposed to use offence-specific defences in subsections 12(4), 17(5), 18B(6) and 18C(5) of the Illegal Logging Prohibition Act 2013, and why it is appropriate for an offence-specific defence to include circumstances prescribed by the rules.^[200]

Minister for Agriculture, Fisheries and Forestry’s response^[201]

2.109 The minister’s response provided further detail as to what it is envisaged may be the circumstances prescribed by the rules as exceptions to the offences in subsections 12(4), 17(5), 18B(6) and 18C(5). For example, the minister stated that the circumstances envisaged for the purposes of subsection 12(4) would include the importation of consignments of regulated timber products that do not exceed $1,000 and the import of certain regulated timber products that are made from recycled materials. The minister stated that maintaining these exceptions in a disallowable legislative instrument would continue to enable adjustments in response to changing policy settings and industry needs. Similar reasoning was provided for including exceptions to the offences in rules in relation to the other provisions.

2.110 The minister further advised that the reversal of the evidential burden for these provisions is appropriate because, consistent with the Guide to Framing Commonwealth Offences, the circumstances relevant to the defence would be peculiarly within the knowledge of the defendant and it would be significantly more time consuming and costly for the prosecution to disprove than for the defendant to establish the matters.

Committee comment

2.112 The committee welcomes the additional guidance on what may be included in the rules as exceptions to these offences, however it considers the information insufficient to justify why it is appropriate for an offence-specific defence to include circumstances prescribed by the rules. While the minister may have an anticipated view of what may be included as an exception, this is not a legislated exception and can readily change. It is therefore not possible for the committee to conclude whether the exceptions are appropriately included as offence-specific defences as it is not possible for the committee to know whether they are or will be peculiarly within the knowledge of the defendant or significantly more difficult and costly for the proposed to disprove than for the defendant to establish the matter.

2.113 The committee draws its scrutiny concerns to the attention of the senators and leaves to the Senate as a whole the appropriateness of reversing the evidential burden of proof in relation to the offences in subsections 12(4), 17(5), 18B(6) and 18C(5), in circumstances where rules can provide for exceptions to the offences and therefore it is not possible to know whether the reversal is consistent with the test in the Guide to Framing Commonwealth Offences.

Abrogation of privilege against self-incrimination^[202]

2.114 Item 52 in Schedule 1 to the bill seeks to substitute section 82 of the Act.

2.115 Proposed subsection 82(1) provides that an individual is not excused from making a declaration under section 13 (a customs declaration); giving a notice under section 18B or 18C (respectively, a notice of regulated timber products to be unloaded in Australia, and a notice of the processing of a raw log into something other than a raw log); giving information or producing a document under section 18E, 18F or 31 (respectively, a requirement for importers to give information or documents to the Secretary, a requirement for processors to give information or documents to the Secretary, and a requirement to give information or produce documents to an auditor conducting an audit); or answering a question under section 31, on the ground that making the declaration, giving the notice or information, producing the document or answering the question might tend to incrimination the individual in relation to an offence.

2.116 Proposed subsection 82(2) provides for a limited use immunity, providing that the declaration, notice, information or document produced under subsection 82(1) is not admissible in evidence against the individual in criminal proceedings, other than proceedings for an offence against the sections referred to in subsection 82(1) or proceedings for an offence against section 137.1 or 137.2 of the Criminal Code.^[203]

2.117 The committee considers that any justification for abrogating the privilege against self-incrimination will be more likely to be considered appropriate if accompanied by both a ‘use immunity’ and a ‘derivative use immunity’. In Scrutiny Digest 6 of 2024 the committee requested the minister’s advice as to:

Minister for Agriculture, Fisheries and Forestry’s response^[205]

2.118 The minister advised that consideration was given to including derivative use immunity in the bill to ensure information or evidence indirectly obtained from a person could not be used in evidence against them, and that paragraph 82(2)(c) of the bill, when read with paragraph 82(2)(d) and (e) provides for this. The minister advised that:

any information, document or thing obtained as a direct or indirect consequence of making of the declaration under section 13, the giving of the notice under section 18B or 18C, giving information or producing a document under section 18E, 18F or 31 or answering a question under section 31 are not admissible in evidence against the individual in criminal proceedings, other than proceedings for an offence against section 13, 18B, 18C, 18E, 18F or 31, or proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to the Act or the rules.

2.119 The minister further advised that less coercive avenues to obtain the information are likely to be ineffective in light of the overall lack of responsiveness to requests from the Department for information and documents relevant to compliance with the current illegal logging prohibition legislation.

Committee comment

2.121 In light of the information provided the committee makes no further comment in relation to this matter.

Immunity from civil liability^[206]

2.122 Item 54 of Schedule 1 to the bill seeks to insert proposed section 85D, which relates to protection from civil proceedings. Proposed subsection 85D(1) provides that no civil proceeding lies against the Commonwealth or a protected person in relation to anything done, or omitted to be done, in good faith by a protected person in the performance or purported performance of a function, or the exercise or purported exercise of a power, conferred by the Act or the rules. Proposed subsection 85D(2) defines protected person to mean a person who is, or was, the Minister, the Secretary, an APS employee in the Department, an inspector or an auditor.

2.123 In Scrutiny Digest 6 of 2024 the committee requested the minister’s advice as to why it is necessary and appropriate to confer immunity from civil proceedings on a potentially broad range of persons, such that affected persons have their right to bring an action to enforce their legal rights limited to situations where a lack of good faith is shown. The committee also noted that its consideration of the issue would be assisted if the minister’s advice addresses what, if any, alternative protections are afforded to an affected individual given that the normal rules of civil liability have been limited by the bill.^[207]

Minister for Agriculture, Fisheries and Forestry’s response^[208]

2.124 The minister advised that the immunity provision is necessary to protect certain officials from the legal risk arising in the course of conducting their duties in good faith and is consistent with other portfolio legislation, such as section 644 of the Biosecurity Act 2015.

[p]owers and functions under the Act as proposed are generally exercised, or are to be exercised, by the Secretary personally or by appropriately qualified persons whom the Secretary has appointed as inspectors and auditors under the Act. In practice the immunity will only apply to a small number of persons given that few officers are appointed inspectors under the Act and this is likely to continue in the event that the Bill is passed.

2.126 The minister further advised that the immunity does not protect the conduct of officers acting in good faith in the course of their duties from oversight by the Ombudsman or similar scrutiny bodies, nor affect access by individuals to the Commonwealth Scheme for Compensation for Detriment caused by Defective Administration.

Committee comment

2.128 The committee notes the minister’s advice that the apparent breadth of the range of persons upon whom immunity is conferred may in practice be more limited.

2.129 While acknowledging the explanation for the necessity of the immunity where individuals are acting in good faith, the committee is nevertheless concerned with what recourse affected persons may have to bring an action to enforce their legal rights. The committee notes the advice the individuals can still access the Commonwealth Scheme for Compensation for Detriment caused by Defective Administration however it is unclear to the committee whether this scheme provides recourse for individuals where detriment is caused by lawful and valid action.

2.130 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of providing protected persons with civil immunity so that affected persons have their right to bring an action to enforce their legal rights limited to situations where a lack of good faith is shown.

Incorporation of external materials as existing from time to time^[209]

2.131 Item 55 of Schedule 1 to the bill seeks to replace existing section 86 of the Act, which provides for a regulation-making power, with a revised section 86, which instead provides for a rule-making power. Proposed subsection 86(2) seeks to provide that, despite subsection 14(2) of the Legislation Act 2003, the rules may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time.

2.132 In Scrutiny Digest 6 of 2024, the committee requested the minister’s advice as to whether documents incorporated by reference under proposed subsection 86(2) of the Illegal Logging Prohibition Act 2013 will be made freely available to all persons interested in the law.^[210]

Minister for Agriculture, Fisheries and Forestry’s response^[211]

2.133 The minister advised that where the rules incorporate such documents, the explanatory statement would, in accordance with paragraph 15J(2)(c) of the Legislation Act 2003, contain a description of the relevant incorporated material and indicate how it may be obtained.

2.134 Further, the minister confirmed that material incorporated from time to time would be made freely available to all persons interested in the law, with the explanatory statements including website details on where documents could be obtained, which Australian public libraries would contain the material or include relevant extracts, in full, from the incorporated documents as appropriate.

Committee comment

2.136 In light of the information provided the committee makes no further comment in relation to this matter.

^[194] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Illegal Logging Prohibition Amendment (Strengthening Measures to Prevent Illegal Timber Trade) Bill 2024, Scrutiny Digest 7 of 2024; [2024] AUSStaCSBSD 124.

^[195] Schedule 1, item 10, proposed subsections 9(1) and (2). The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i) and (iv).

^[198] The minister responded to the committee’s comments in a letter dated 29 May 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 7 of 2024).

^[199] Schedule 1, item 12, proposed subsections 12(4), 17(5), 18B(6) and 18C(5). The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(i).

^[201] The minister responded to the committee’s comments in a letter dated 29 May 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 7 of 2024).

^[202] Schedule 1, item 52, proposed section 82. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).

^[203] Section 137.1 of the Criminal Code creates an offence for providing false or misleading information. Section 137.2 creates an offence for providing false or misleading documents.

^[205] The minister responded to the committee’s comments in a letter dated 29 May 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 7 of 2024).

^[206] Schedule 1, item 53, proposed section 85D. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).

^[208] The minister responded to the committee’s comments in a letter dated 29 May 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 7 of 2024).

^[209] Schedule 1, item 55, proposed subsection 86(2). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(v).

^[211] The minister responded to the committee’s comments in a letter dated 29 May 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 7 of 2024).

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests