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Regional Forest Agreements Bill 2002
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Regional Forest Agreements Bill 2002
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THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
REGIONAL FOREST AGREEMENTS BILL 2002
(Circulated by authority of the Minister for Forestry and Conservation, Senator the Hon Ian Macdonald)
REGIONAL FOREST AGREEMENTS BILL 2002
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.
REGULATION IMPACT STATEMENT
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.
1. The Problem
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.
2. Objectives of Government Action
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.
A series of options were attempted to address conflicts over native forest use and community and investor uncertainty. These options included environmental impact assessments of individual forests, banning harvesting of certain forests and Commonwealth/State bilateral agreements on forest management. The options were only partially successful and new conflicts emerged subsequently.
4. The Proposed Option
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.
5. Impact Assessment
(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.
6. Consultation Statement
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 consideredin 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.
8. Implementation and Review Strategy
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.
NOTES ON CLAUSES
Clause 1: Short Title
The Act will be called the Regional Forest Agreements Act 2002 .
Clause 2: Commencement
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.
Clause 3: Objects
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: Definitions
Clause 4 lists definitions for several terms in the Bill.
Clause 5: Act that binds the Crown
This clause ensures that the Crown in right of the Commonwealth is bound by the Act.
Clause 6: Certain Commonwealth Acts not to apply in relation to RFA wood or RFA forestry operations
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).
Clause 7: Termination of RFA by Commonwealth
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.
Clause 8: Compensation for breach of RFA by Commonwealth
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.
Clause 9: Publication of information about RFAs
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.
Clause 10: Tabling of RFAs etc
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.
Clause 11: Forest and Wood Products Council
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.
Clause 12: Schedule(s)
This clause gives effect to Schedule 1.
Schedule 1: Amendment of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act)
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.
Items 3 and 4
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.