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Illegal Logging Prohibition Bill 2012

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7202

2010-2011-2012

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Illegal Logging Prohibition Bill 2012

 

 

(1)     Page 2 (after line 7), after clause 2, insert:

2A  Objects of this Act

                   The objects of this Act are:

                     (a)  to prevent the trade of timber products derived from illegal logging; and

                     (b)  to help reduce illegal logging in Australia’s region and globally; and

                     (c)  to encourage the sourcing of timber products produced using sustainable practices; and

                     (d)  to help Australia to become a country that trades only in sustainable timber products; and

                     (e)  to assist in the implementation of Australia’s international obligations in relation to the eradication of corruption, including under:

                              (i)  the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions done at Paris on 17 December 1997 ([1999] ATS 21); and

                             (ii)  the Convention against Corruption done at New York on 31 October 2003 ([2006] ATS 2); and

                            (iii)  the Convention against Transnational Organised Crime done at New York on 15 November 2000 ([2004] ATS 12); and

                      (f)  to assist in the implementation of Australia’s international obligations in relation to the environment, including under:

                              (i)  the Convention on International Trade in Endangered Species of Wild Fauna and Flora done at Washington on 3 March 1973 ([1976] ATS 29); and

                             (ii)  the Convention on Biological Diversity done at Rio de Janeiro on 5 June 1992 ([1993] ATS 32); and

                     (g)  contribute to the implementation of Australia’s commitment to the environment under the Montr éal Process, and the Santiago Declaration of Criteria and Indicators for the Conservation and Sustainable Management of Temperate and Boreal Forests made at Santiago on 3 February 1995.

Note:          In 2012, the text of an international agreement in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

[objects of Act]

(2)     Clause 6, page 3 (lines 10 to 14), omit all the words from and including “This Act” to and including “processed.”, substitute:

This Act prohibits the importation of illegally logged timber, the processing of illegally logged raw logs and the supply of regulated timber products.

This Act also requires importers of regulated timber products, processors of raw logs and suppliers of timber products to conduct due diligence in order to reduce the risk that illegally logged timber is imported, processed or supplied.

[guide to Act]

(3)     Clause 7, page 4 (line 24), at the end of the definition of due diligence requirements , add:

             ; and (c)  for supplying timber products—has the meaning given by section 18E.

[definition of due diligence requirements]

(4)     Clause 7, page 5 (line 5), at the end of the definition of illegally logged , add “ including, but not limited to, laws about the following matters:

                     (a)  rights to harvest timber within legally gazetted boundaries;

                     (b)  amounts payable in relation to rights to harvest and timber, including duties related to the harvest of timber;

                     (c)  harvesting timber, including environmental and forest legislation including forest management and biodiversity conservation where it is directly related to harvesting timber;

                     (d)  legal rights of third parties in relation to land use and tenure that are affected by harvesting timber;

                     (e)  customs and other tax duties in relation to the timber product sector;

                      (f)  trade in timber products. ”.

[definition of illegally logged]

(5)     Clause 7, page 6 (after line 1), after the definition of premises , insert:

processed timber product means a thing that is, is made from or includes, a raw log that has been processed.

[definition of processed timber product]

(6)     Clause 7, page 6 (after line 1), after the definition of premises , insert:

quarter has the meaning given by subsection 83(5) .

[definition of quarter]

(7)     Clause 7, page 6 (after line 5), after the definition of Secretary , insert:

supply has the meaning given by section 7A.

[definition of quarter]

(8)     Page 6 (after line 8), after clause 7, insert:

7A   Supplying timber products

             (1)  A supply of a timber product includes a supply of the product by way of sale, exchange, gift, lease, loan, hire or hire-purchase.

             (2)  For the purposes of subsection (1), it is irrelevant whether the supply is:

                     (a)  for consideration; or

                     (b)  a wholesale or retail supply.

Note:          Offences under this Act relating to supplying timber products do not apply in relation to second-hand products.

[definition of supply]

(9)     Clause 13, page 9 (line 12), before “A”, insert “(1)”.

[customs declaration — consequential]

(10)   Clause 13, page 9 (after line 21), at the end of the clause, add:

             (2)  The form of declaration prescribed by the regulations must require the person to include the following information:

                     (a)  the name of the person importing the timber product;

                     (b)  the name of the person who supplied the product to the person importing the product;

                     (c)  the botanical name and the common name for the timber used in the product;

                     (d)  the cost of the product to the person importing the product, in Australian dollars;

                     (e)  the country or countries of origin of the product;

                      (f)  the region or forest coupe, or any other information that identifies the site, where the timber for the product was logged;

                     (g)  details of the logging permit, logging approval or harvest concession in relation to the timber for the product, issued by the country or countries of origin;

                     (h)  the name and voyage number of the vessel on which the product is being imported;

                      (i)  the number of the shipping container in which the product is being imported;

                      (j)  any consignment identifier, bill of lading number or invoice number in relation to the product;

                     (k)  a description of the product;

                      (l)  the type of product being imported and the trade name, if any, of the product;

                    (m)  if the product is comprised of more than one kind of timber or is comprised of timber and one or more other materials—the kinds of timber and other materials that the product is comprised of;

                     (n)  the customs tariff classification to which the product belongs;

                     (o)  the quantity of product covered by the declaration;

                     (p)  the due diligence system, and any components of the system, in the country of origin used to verify that the timber for the product has not been illegally logged;

                     (q)  an assessment of the level of risk that the timber for the product has been illegally logged, as either a low, medium or high risk;

                      (r)  any other information prescribed by the regulations.

             (3)  A declaration made by a person in accordance with this section must be published on the internet within 7 days of the Customs Minister receiving it.

[customs declaration]

(11)   Clause 14, page 9 (lines 29 and 30), omit “may include requirements in relation to one or more of the following”, substitute “must include requirements in relation to the following”.

[due diligence requirements — imports]

(12)   Clause 14, page 10 (lines 1 to 9), omit paragraph (3)(a), substitute:

                     (a)  gathering information for the purposes of assessing that risk;

[due diligence requirements — imports]

(13)   Clause 14, page 10 (line 18), at the end of paragraph (3)(i), add “, including statements of compliance”.

[statements of compliance — publication]

(14)   Clause 14, page 10 (lines 20 to 29), omit subclauses (5) and (6), substitute:

             (5)  The regulations must provide that evidence of compliance with the laws, rules or processes under laws, including certification schemes, in force in a State or Territory or another country may be taken into account as part of the evidence demonstrating compliance with due diligence requirements for importing regulated timber products.

[evidence demonstrating due diligence requirements — imports]

(15)   Clause 18, page 14 (lines 3 and 4), omit “may include requirements in relation to one or more of the following”, substitute “must include requirements in relation to the following”.

[due diligence requirements — processing]

(16)   Clause 18, page 14 (lines 5 to 13), omit paragraph (3)(a), substitute:

                     (a)  gathering information for the purposes of assessing that risk;

[due diligence requirements — processing]

(17)   Clause 18, page 14 (line 20), at the end of paragraph (3)(h), add “, including statements of compliance”.

[statements of compliance — publication]

(18)   Clause 18, page 14 (lines 22 to 29), omit subclauses (5) and (6), substitute:

             (5)  The regulations must provide that evidence of compliance with the laws, rules or processes under laws, including certification schemes, in force in a State or Territory may be taken into account as part of the evidence demonstrating compliance with due diligence requirements for processing raw logs.

[evidence demonstrating due diligence requirements — processing]

(19)   Page 14 (after line 29), after Part 3, insert:

Part 3A—Supplying

Division 1—Supplying illegally logged timber

18A  Supplying illegally logged timber

             (1)  A person commits an offence if:

                     (a)  the person supplies a thing; and

                     (b)  the person is a constitutional corporation, or the person supplies the thing:

                              (i)  in the course of, or for the purposes of, trade and commerce with other countries, or among the States or between a State and a Territory; or

                             (ii)  in a Territory; or

                            (iii)  on behalf of a constitutional corporation; or

                            (iv)  to a constitutional corporation; or

                             (v)  on behalf of the Commonwealth or a Commonwealth authority; or

                            (vi)  to the Commonwealth or a Commonwealth authority; and

                     (c)  the thing is, is made from, or includes, illegally logged timber; and

                     (d)  the thing is not prescribed by the regulations for the purposes of this paragraph.

Penalty:  5 years imprisonment or 500 penalty units, or both.

             (2)  Subsection (1) does not apply if the timber product is a second-hand product at the time of the supply.

18B  Supplying illegally logged timber in regulated timber products

             (1)  A person commits an offence if:

                     (a)  the person supplies a thing; and

                     (b)  the person is a constitutional corporation, or the person supplies the thing:

                              (i)  in the course of, or for the purposes of, trade and commerce with other countries, or among the States or between a State and a Territory; or

                             (ii)  in a Territory; or

                            (iii)  on behalf of a constitutional corporation; or

                            (iv)  to a constitutional corporation; or

                             (v)  on behalf of the Commonwealth or a Commonwealth authority; or

                            (vi)  to the Commonwealth or a Commonwealth authority; and

                     (c)  the thing is, is made from, or includes, illegally logged timber; and

                     (d)  the thing is a regulated timber product; and

                     (e)  the thing is not prescribed by the regulations for the purposes of this paragraph.

Penalty:  5 years imprisonment or 500 penalty units, or both.

             (2)  The fault element for paragraph (1)(c) is negligence.

             (3)  Subsection (1) does not apply if the timber product is a second-hand product at the time of the supply.

18C  Forfeiture

             (1)  A court may order all or any part of a thing to be forfeited to the Commonwealth if:

                     (a)  the court convicts a person of an offence against section 18A or 18B in respect of the thing or part; and

                     (b)  the thing or part is the property of the person.

             (2)  The person is entitled to be heard in relation to the order.

             (3)  The thing or part may be dealt with or disposed of in any manner that the Secretary thinks appropriate, but only after:

                     (a)  if the periods provided for lodging appeals against the order and the conviction have ended without such an appeal having been lodged—the end of those periods; or

                     (b)  if one or more such appeals have been lodged—the appeals lapse or are finally determined.

Division 2—Suppliers’ due diligence

18D  Supplying a timber product

                   A person commits an offence if:

                     (a)  the person supplies a thing; and

                     (b)  the person is a constitutional corporation, or the person supplies the thing:

                              (i)  in the course of, or for the purposes of, trade and commerce with other countries, or among the States or between a State and a Territory; or

                             (ii)  in a Territory; or

                            (iii)  on behalf of a constitutional corporation; or

                            (iv)  to a constitutional corporation; or

                             (v)  on behalf of the Commonwealth or a Commonwealth authority; or

                            (vi)  to the Commonwealth or a Commonwealth authority; and

                     (c)  the thing is a timber product; and

                     (d)  the person does not comply with the due diligence requirements for supplying the product.

Penalty:  300 penalty units.

18E  Due diligence requirements for supplying timber products

                   The due diligence requirements for the supply of a timber product by a person (the supplier ) to another person are:

                     (a)  for an imported regulated timber product—the supplier must provide the other person with:

                              (i)  a copy of the declaration made to the Customs Minister under section 13 in relation to the product; and

                             (ii)  evidence of compliance with the due diligence requirements for importing regulated timber products; and

                     (b)  for a processed timber product—the supplier must provide the other person with evidence of compliance with the due diligence requirements for processing raw logs.

[supply]

(20)   Page 59 (after line 28), after Part 4, insert:

Part 4A Review of administrative decisions

 

82A   Extended standing for judicial review

             (1)  This section extends (and does not limit) the meaning of the term person aggrieved in the Administrative Decisions (Judicial Review) Act 1977 for the purposes of the application of that Act in relation to:

                     (a)  a decision made under this Act or the regulations; or

                     (b)  a failure to make a decision under this Act or the regulations; or

                     (c)  conduct engaged in for the purpose of making a decision under this Act or the regulations.

             (2)  An individual is taken to be a person aggrieved by the decision, failure or conduct if:

                     (a)  the individual is an Australian citizen or ordinarily resident in Australia or an external Territory; and

                     (b)  at any time in the 2 years immediately before the decision, failure or conduct, the individual has engaged in a series of activities in Australia or an external Territory for protection or conservation of, or research into, the environment, or relating to logging, illegally logged timber, or a related matter.

             (3)  An organisation or association (whether incorporated or not) is taken to be a person aggrieved by the decision, failure or conduct if:

                     (a)  the organisation or association is incorporated, or was otherwise established, in Australia or an external Territory; and

                     (b)  at any time in the 2 years immediately before the decision, failure or conduct, the organisation or association has engaged in a series of activities in Australia or an external Territory for protection or conservation of, or research into, the environment, or relating to logging, illegally logged timber, or a related matter.

             (4)  A term (except person aggrieved ) used in this section and in the Administrative Decisions (Judicial Review) Act 1977 has the same meaning in this section as it has in that Act.

82B   Applications on behalf of unincorporated organisations

             (1)  A person acting on behalf of an unincorporated organisation that is a person aggrieved (for the purposes of the Administrative Decisions (Judicial Review) Act 1977 ) by:

                     (a)  a decision made under this Act or the regulations; or

                     (b)  a failure to make a decision under this Act or the regulations; or

                     (c)  conduct engaged in for the purpose of making a decision under this Act or the regulations;

may apply under that Act for a review of the decision, failure or conduct.

             (2)  The Administrative Decisions (Judicial Review) Act 1977 applies in relation to the person as if he or she were a person aggrieved.

[review of administrative decisions]

(21)   Clause 83, page 60 (line 4), omit subclause (1), substitute:

             (1)  The Secretary must publish the following information about the operation of this Act:

                     (a)  an annual compliance audit for each financial year in relation to imported regulated timber products;

                     (b)  aggregate data reports for each quarter in relation to imported regulated timber products;

                     (c)  any other report or information prescribed by the regulations for the purposes of this paragraph.

          (1A)  The secretary may publish any other information about the operation of this Act that the Secretary considers relevant.

[reports about operation of Act]

(22)   Clause 83, page 60 (line 5), omit “Subsection (1) does not”, substitute “Subsections (1) and (1A) do not”.

[reports about operation of Act — consequential]

(23)   Clause 83, page 60 (after line 6), at the end of the clause, add:

             (3)  An annual compliance audit in relation to imported regulated timber products must include, but is not limited to, information about the following:

                     (a)  the importers that have been audited;

                     (b)  the imported regulated timber products that have been audited, including a breakdown by timber species;

                     (c)  how many importations of such products have been audited, including a breakdown by country of origin;

                     (d)  the level of risk associated with the products that have been audited;

                     (e)  the level of accurate information provided on declarations made to the Customs Minister under section 13 relating to the products that have been audited;

                      (f)  the level of accurate and comprehensive compliance with due diligence requirements for importing regulated timber products for the products that have been audited;

                     (g)  non-identifying information about any investigations that have been undertaken during the financial year in relation to such products;

                     (h)  non-identifying information about the outcome of any investigations completed during the financial year in relation to such products;

                      (i)  non-identifying information about the current status of any investigations that have not been completed by the end of the financial year.

             (4)  An aggregate data report for a quarter in relation to imported regulated timber products must include, but is not limited to, information about the following:

                     (a)  the volume of the products imported in the quarter;

                     (b)  a breakdown of the products imported in the quarter by:

                              (i)  product type;

                             (ii)  timber species;

                            (iii)  country of origin;

                            (iv)  country of processing.

             (5)  In this section:

quarter means a period of 3 months ending on 30 September, 31 December, 31 March or 30 June .

[reports about operation of Act]

(24)   Page 60 (after line 15), after clause 84, insert:

84A   Review of operation of regulations

             (1)  The Minister must cause a review to be undertaken of the first 2 years of the operation of the regulations made under this Act.

             (2)  The persons undertaking the review must give the Minister a written report of the review within 6 months after the end of 2 years after the commencement of the regulations.

             (3)  The Minister must cause a copy of the report of the review to be laid before each House of the Parliament within 15 sitting days of that House after its receipt by the Minister.

[review of operation of regulations]