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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION
AMENDMENT (REGIONAL FOREST AGREEMENTS) BILL 2020
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator the Hon. Bridget McKenzie)
ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION
AMENDMENT (REGIONAL FOREST AGREEMENTS) BILL 2020
OUTLINE
The purpose of this Bill is to clarify the intended operation of subsection 38(1) of the
Environment Protection and Biodiversity Conservation Act 1999 (the 'EPBC Act') to make it
clear that the provision exempts forestry operations covered by Regional Forest Agreements
from Part 3 of the EPBC Act.
The Bill makes a necessary amendment to subsection 38(1) of the EPBC Act and section 6(4)
of the Regional Forest Agreements Act 2002 to clarify the meaning of forestry operations
covered by Regional Forest Agreements for the purpose of those provisions. The Bill's
amendments will clarify that forestry operations covered by a Regional Forest Agreement are
exempted from Part 3 of the EPBC Act.
Regional Forest Agreements are designed to streamline and coordinate the various decision-
making processes necessary to meet governments' obligations and interests in relation to
forest use. Forestry operations covered by a Regional Forest Agreement have, since
introduction of the EPBC Act, been exempt from Part 3 of the Act through subsection 38(1).
This Bill will affirm and clarify the Commonwealth's intent regarding Regional Forest
Agreements to make it explicitly clear that forestry operations in a Regional Forest
Agreement region are exempt from Part 3 of the EPBC Act, and that compliance matters are
to be dealt with through the state regulatory framework.
This is achieved by removing the ambiguity of what it means to be "undertaken in
accordance with a Regional Forest Agreement" (subsection 38(1) of the EPBC Act), which a
recent Federal Court decision (Friends of Leadbeater's Possum Inc v VicForests (No 4)
[2020] FCA 704 has shown is not explicit with respect to the Commonwealth's intended
meaning.
This will ensure greater consistency with the definition of the term "RFA forestry operations"
in section 4 of the Regional Forest Agreements Act 2002, which defines it to mean "forestry
operations ... that are conducted in relation to land in a region covered by the RFA (being
land where those operations are not prohibited by the RFA)."
The Federal Court decision has created ambiguity with respect to subsection 38(1) of the
EPBC Act, and it must be addressed to remove the legal uncertainty surrounding Australia's
native forestry industry. Contrary to Justice Mortimer's finding, it has never been the
intention of the parties to Regional Forest Agreements (Commonwealth and state
governments) that harvesting operations would no longer be "in accordance with an RFA" for
the purposes of subsection 38(1) of the EPBC Act in the event a forestry operation breaches
state regulations, and that the EPBC Act would apply.
The rationale for subsection 38(1) of the EPBC Act was recognition 'that in each Regional
Forest Agreement region a comprehensive assessment ... has been undertaken to address the
environmental, economic and social impacts of forestry operations.' (Explanatory
Memorandum, Environment Protection and Biodiversity Conservation Bill 1999, para [113].)
The Regional Forest Agreement framework is such that the Commonwealth accredits the
State Government's regulatory framework to ensure there is independent oversight of forestry
operations and robust powers to conduct audits and impose sanctions if forestry operations
breach regulations. All Regional Forest Agreements include accreditation of systems for
achieving ecologically sustainable forest management.
A central objective of the Regional Forest Agreement framework and subsection 38(1) of the
EPBC Act is to reduce uncertainty, duplication and fragmentation in government decision-
making by producing a durable agreement on the management and use of forests. This not
only facilitates timely land use planning and development approval decisions; it also protects
environmental, heritage and cultural values and provides industry with secure access to forest
resources.
The intent of the Commonwealth and Regional Forest Agreement signatory states in relation
to subsection 38(1) has always been for it to be interpreted to mean "any forestry operation
that happens in an RFA area". However, in the recent Federal Court decision (Friends of
Leadbeater's Possum Inc v VicForests) Justice Mortimer found this provision to mean that
VicForests' forestry operations in question were not conducted (or would not be conducted in
future as some were yet to happen) "in accordance with" the Central Highlands Regional
Forest Agreement because they had, or would, breach the state Code and therefore lost the
exemption under section 38 of the EPBC Act.
Requiring native forestry operations to seek EPBC Act approval would create operationally
unviable delays in planned harvesting operations that have already been subjected to
significant environmental planning and approvals and create congestion in the approvals
pipeline.
While rare, minor breaches of timber harvesting regulations occur occasionally, it would be
impractical to have those forestry operations cease to be covered by the exemption from Part
3 of the EPBC Act and be required to seek approval under the EPBC Act - where approvals
can take years - simply because of minor breaches.
Furthermore, the operation of subsection 38(1) is just one of several legal questions
considered by Justice Mortimer's judgment and subsequent appeal. There is no guarantee that
the appeal will deal with the substantive question about the operation of subsection 38(1).
The Independent review of the EPBC Act Interim Report (Samuel 2020) recommended
addressing this uncertainty:
"During the course of this Review, the Federal Court found that an operator had
breached the terms of an RFA and should therefore be subject to the ordinary
controlling provisions of the EPBC Act. Legal ambiguities in the relationship between
EPBC Act and the RFA Act should be clarified, so that the Commonwealth's interests
in protecting the environment interact with the RFA framework in a streamlined
way." (page 10), and
"The EPBC Act recognises the RFA Act, and additional assessment and approvals
are not required for forestry activities conducted in accordance with an RFA (except
where forestry operations are in a World Heritage property or a Ramsar wetland).
These settings are colloquially referred to as the 'RFA exemption', which is somewhat
of a misnomer." (page 60).
The Interim Report also made it clear that under a regional model of empowering the states,
the oversight functions would be the responsibility of the states through accredited
frameworks (as occurs with Regional Forest Agreements):
"For projects approved under accredited arrangements, the accredited regulator
would be responsible for ensuring that projects comply with requirements, across the
whole project cycle including transparent post-approval monitoring, compliance and
enforcement. The Commonwealth should retain the ability to intervene in project-
level compliance and enforcement where egregious breaches are not being effectively
enforced by the accredited party." (page 55).
The Commonwealth must act urgently to resolve this uncertainty to ensure that the tens of
thousands of jobs that depend on Australia's native forestry operations are not exposed to the
sort of crisis now facing Victoria's native hardwood sector. This amendment Bill will achieve
this outcome.
NOTES ON CLAUSES
Clause 1: Short Title
1. This clause is a formal provision and specifies that the short title of the Act may be
cited as the Environment Protection and Biodiversity Conservation Amendment
(Regional Forest Agreements) Act 2020.
Clause 2: Commencement
2. This clause provides for the commencement of the whole Act to be the day after this
Act receives the Royal Assent.
Clause 3: Schedules
3. This clause states that legislation specified in the Schedule to this Act is amended or
repealed as is set out in the applicable items in the Schedule. Any other item in the
Schedule has effect according to its terms.
Schedule 1--Regional Forest Agreements
Part 1 - Amendments
Environment Protection and Biodiversity Conservation Act 1999
Item 1
4. Item 1 omits "that is undertaken in accordance with an RFA" from subsection 38(1)
of the Act.
Regional Forest Agreements Act 2002
Item 2
5. Item 2 omits "that is undertaken in accordance with an RFA" from subsection 6(4) of the
Regional Forest Agreements Act 2002.
Part 2 - Application provisions
Item 3
6. This item provides that the amendments made by items 1 and 2 apply in relation to an
RFA forestry operation undertaken before the commencement of the amendments as well
as after that commencement.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
ENVIRONMENT PROTECTION AND BIODIVERSITY CONSERVATION
AMENDMENT (REGIONAL FOREST AGREEMENTS) BILL 2020
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The purpose of this Bill is to clarify the intended operation of subsection 38(1) of the
Environment Protection and Biodiversity Conservation Act 1999 to make it clear that the
provision exempts forestry operations covered by Regional Forest Agreements from Part 3 of
the Act. A related amendment is made to the Regional Forest Agreements Act 2002.
Human rights implications
This Bill does not engage any of the applicable rights or freedoms.
Conclusion
This Bill is compatible with human rights as it does not raise any human rights issues.
Senator the Hon. Bridget McKenzie