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Thursday, 16 August 2012
Page: 8915


Mr FLETCHER (Bradfield) (13:02): I am pleased to speak on the Illegal Logging Prohibition Bill 2011. The stated aim of this bill is to reduce the harmful impacts of illegal logging by restricting the importation and sale of illegally logged timber products in Australia. As ever with legislation proposed by this government, it is one thing to ask whether the objective is a desirable one; it is quite another to ask whether the method of achieving the objective has been well thought through and carefully planned. This bill has a worthy title but it is dangerously lacking in detail about key aspects of implementation of the measures in the bill and as a consequence many parties in the timber industry, including people and companies in our major trading partner countries, will be left unsure about their legal obligations and unsure what they are required to do to comply with those obligations.

In the time available to me today I would like to make three points in relation to this bill: first, that the coalition is opposed to illegal logging and supports effective measures to prevent it; second, because key aspects of the proposed regulatory regime for illegal logging are not set out in this bill but instead will be left to the regulations, this is not a bill in a form which should be supported by this parliament at this time; and, thirdly, the government's woeful mishandling of this bill continues to damage our international trade relationships.

Let me turn firstly to the proposition that the coalition certainly supports effective measures to prevent illegal logging. We join with all reasonable people in believing that illegal logging is a significant challenge to the goal of sustainably managing the world's forests and that it damages both the environment and trade by legitimate businesses in timber based markets. It is a large market internationally. The World Bank estimates that illegal logging generates revenues of some US$10 billion to US$15 billion a year.

This was why in 2010 the coalition gave a commitment that we would legislate to make it an offence to import any timber product which had not been verified as being legally harvested. So the dispute here is not one about the question of principle; it is about the implementation as reflected in two critical conditions that we attached to the commitment we made in 2010. Firstly, we said that a transition period of two years would be provided to allow industry to adapt to the new measures and that the coalition would ensure that all impacted stakeholders were consulted in the drafting of the legislation and the regulations and other related measures. In the typically chaotic and shambolic processes adopted by the Gillard government, neither of these critical requirements has been met and therefore the legislation in the form that it appears before the House today is not a form which we could support.

I want to turn to the second issue which is of acute concern: that key aspects of the regulatory regime are not yet before the House. They are not contained in this bill; instead, we are told, they will be left to the regulations. The explanatory memorandum says that the bill:

... provides a high-level legislative framework to implement the government's policy to combat illegal logging.

It goes on to say that there will be subordinate legislative instruments to realise the government's policy objective. What is left to be dealt with in the regulations is extremely broad. It includes which timber products are to be regulated. It includes what will be the due diligence requirements that citizens and companies must meet if they are to mitigate the risk of being subject to civil or criminal penalties for importing or processing illegally logged timber. In other words, absolutely fundamental aspects of the regime are not dealt with in the bill and will be solely a matter for regulation.

This is very, very troubling, particularly when you understand the legislative scheme that is laid out here, the core of which is section 8 of the bill, which establishes an offence for importing a thing which 'is made from, or includes' illegally logged timber. If you commit that offence, you will be liable for imprisonment of up to five years, so the stakes are very, very high for citizens seeking to work out what they need to do to comply with the law. The definition of illegally logged timber is timber 'harvested in contravention of laws in force in the place, whether or not in Australia, where the timber was harvested'.

What this means, on the basis of the legislation in front of the House today, if passed into law, is that everybody in Australia who is involved in the business of selling furniture, knick-knacks and souvenirs or garden implements—everybody in that category—will be at risk of finding themselves going to jail for five years because they happened not to keep up with the change in the law in Indonesia, Burma, Malaysia or any other country around the world from which they happen to have imported products. I emphasise 'products', not 'timber', because they might very well be products which are primarily made up of other materials but happen to include some timber. On the definition, on the wording of section 8, on the face of this legislation, anybody in that position is potentially at risk of going to jail for five years in circumstances where they really have very little prospect of finding out whether or not the timber which is contained in the product they have imported is in fact in breach of the law in the country where it was harvested.

We are assured that there will be regulations which will make this all much clearer, but the effect of the way the bill is drafted and the scheme that the government is proposing is that the parliament today is being asked to approve a law which will have the effect that I have just described, which will put people in the business of importing products which happen to contain any timber at risk of going to jail for five years. This is a very troubling case of the full apparatus of state coercive power being applied in a way which could very easily trap people who have made an innocent mistake.

This piece of legislation runs for 61 pages. Between pages 7 and 14 the key offences are set out, along with the statement of broad principle that the parties will be required to carry out due diligence to protect themselves against committing these offences. But of course the bill does not tell us—and, when the legislation is passed in this form and takes effect, the legislation will not tell us—what you need to do to meet those due diligence requirements. You can read the bill from cover to cover and it does not tell you what you need to do to take advantage of the due diligence defence.

But what we do get between pages 17 and 61 of this bill is provision after provision after provision establishing all of the detailed obligations, provisions and powers that the government and its apparatus of inspectors will now have. There are monitoring powers. There will be new inspectors to be appointed. These inspectors will have powers under section 22 to enter premises to determine whether there has been compliance. I point out that those powers exist without the inspector being required to form any belief or suspicion as to noncompliance. The inspector simply has the power under section 22 to enter if he or she gets a warrant or if he or she gets the permission of the occupier of the premises. The pages and pages of powers which are granted to these inspectors include the power to operate electronic equipment on the premises that they enter and the power to secure evidential material, and all of this is just in division 2, which deals with monitoring. Then we have division 3, which deals with investigation, where these powers are not merely repeated but increased.

And, of course, there is another little provision in this bill that is of the kind that this government is very fond of, and that is a strict liability provision. That is to say that under section 74 it is clear that in prosecuting for a breach of this act the government, the prosecutor, does not need to demonstrate that the person before the court had any particular state of mind. You might have made an innocent mistake. That will not help you if you are facing a strict liability provision, and that is made clear under section 74.

All of this would be troubling enough if the regulations were to come into effect on the same date as the act takes effect and, of course, if we had the regulations in front of us to know what they say and to know what the due diligence defence actually involves, but that is not the case. Extraordinarily enough, these regulations will not come into effect until at least six months after the bill has taken effect and potentially longer. That will create enormous uncertainty for Australian citizens, for Australian businesses and for international businesses in knowing what you have to do to comply with this draconian piece of Australian legislation.

This was a point well made in a submission by Mr Thorry Gunnersen, who had this to say:

The Bill creates a crime without adequately defining that crime: There is no list of products to be regulated, the definition of "illegal logging" is broad and the regulations do not yet exist.

And here is something I found quite remarkable in the joint committee inquiry report. Even Greenpeace thought these arrangements were unsatisfactory. Even Greenpeace, according to the committee report, had this to say:

… 'too much information and detail is being left to the regulations resulting in uncertainty for business (and countries).'

When Greenpeace is saying that this is a set of regulatory provisions which is putting businesses at risk, which is putting commerce at risk, which is leaving citizens unsure of how to comply with their regulatory obligations, you know there is a serious problem with this set of provisions.

All of this, of course, is predicated on the government's ludicrous claim that it can get all this sorted out and get the regulations in place in six months. Anybody who has watched this government operate would be deeply sceptical of this claim.

Let's just go through how this is going to work, and it is made very clear in the report of the Senate inquiry. First of all, the provisions in the bill establishing a criminal offence to import timber which has been illegally logged will take effect from the date of royal assent. Secondly, at that point there will be no detail as to how the due diligence defence operates; in fact, it will not exist. Therefore, as a matter of law, if it can be shown that you have 'recklessly imported illegal timber'—that is to say, if you are aware of a substantial risk that the thing is made from or includes illegally logged timber—you are up for jail time of up to five years. So if you import a chair which happens to have wooden feet and it turns out that these wooden feet come from timber which has been illegally logged then you are at risk of going to jail for five years.

The bureaucrats, when they appeared before the Senate inquiry, grandly conceded that when the regulations are finally available there may 'be a subset that may exclude those sorts of products'. Every citizen can be relieved at this gracious concession from government! The reality is that the bill before the House today is creating a regime under which anybody who is in business in Australia importing any material which contains any wood at all ought to be terrified, because if that wood happens to have been logged in breach of the law of another country—something which in practical terms they have no way of finding out—they could find a government inspector knocking at their door and dragging away the product for analysis, a few weeks later they could find themselves charged, and a few months after that they could find themselves locked up in jail for five years. These are disturbingly draconian provisions, and, without the coalition's amendment that the onset of the legislation and the regulations not occur before 1 July 2015, we cannot support them.

The third point I want to make briefly, which has been aptly and ably pointed out by many of my colleagues, is that the government has comprehensively mishandled its relationship on this legislation with major trading partners, including countries like Indonesia and Malaysia, and countries like Canada and Papua New Guinea have made the point that there might well need to be a challenge under World Trade Organization procedures to what is in substance a unilateral trade measure.

This was terrible execution, very badly thought through. The objective we can support in principle, but this is a terrible bill in the way it is implemented. (Time expired)