Protecting our Forests

20 Feb 2020

Mr MORRIS (Mornington) (12:47): I am pleased to rise to open the second-reading debate on the Forests Legislation Amendment (Compliance and Enforcement) Bill 2019.

This is not a terribly complicated piece of legislation. As I think the explanatory memorandum says, this is about making a number of changes to the regulation of timber harvesting and firewood collection, and that is a fair summary of the contents of the bill.

 

Before I start to move into the detail of the bill, I do want to first of all acknowledge the briefing and the offer of information that we received from the minister’s office. It is always helpful and, regardless of whatever position we may respectively have on a particular bill, it is very important that we have informed debate.

 

As the government holds all the information, if we are going to have that informed debate, then we are reliant on the government. I did appreciate what was provided. I also need to say that I was afforded a similar quality briefing and offer of information with regard to a bill earlier this week, the Great Ocean Road and Environs Protection Bill 2019, and I launched straight into the bill and neglected to make that observation. So I make that observation about both bills.

 

As I mentioned, this is about the regulation of timber harvesting. It is about the regulation of firewood collection. Basically it amends three acts, the Sustainable Forests (Timber) Act 2004, the Forests Act 1958 and the Conservation, Forests and Lands Act 1987.

 

Two new offences are created. One replaces an existing offence but changes the nature of it a little bit—so that is an offence of undertaking timber harvesting operations without authorisation—and that is an amendment to the Sustainable Forests (Timber) Act. The second relates to the unauthorised removal of firewood from state forests.

 

The bill allows the incorporation of documents into both the Sustainable Forests (Timber) Act and the Forests Act and the incorporation of documents by reference in any instrument created under the act, with the exception of the regulations—and I will come back to that a little bit later in this contribution.

 

The bill will make a code of practice binding on VicForests and allow the secretary to enter into enforceable undertakings regarding the codes. It will allow authorised officers to require the production of documents by VicForests itself or by a VicForests contractor, and there are some other provisions around the production of documents by other persons. The legislation will allow the secretary to seek an injunction to compel a person to comply with a relevant law or any condition of a works approval, authority or notice under the Conservation, Forests and Lands Act 1987, and it removes a range of redundant provisions, particularly from the Forests Act.

 

It has been put to me and, I am sure, to most members who have an interest in these subjects that given this bill was introduced in late 2019 and we have had, as we know, a significant event in the intervening period which has caused enormous damage to our forests, particularly in East Gippsland and the north-east, this bill should be withdrawn and basically the whole scale of the bill enlarged—the native timber industry closed down forthwith, effectively, is the sentiment that goes along with those suggestions.

 

I certainly do not share the view that the native timber industry needs to be closed down, but I make the point that this bill is about improving, in the view of the government, the regulation of the native timber industry and firewood as well. It is not about the merits of the industry.

 

In my view, and I am sure many will disagree with me but in my view, however terrible the events of late December and early January—and they were terrible; I think we are all agreed on that—however terrible that was and whatever the impact, that is not particularly relevant in terms of this particular piece of legislation.

 

With regard to most of the details of the bill, I will just run through them. In terms of the Sustainable Forests (Timber) Act there is a proposal to substitute new section 45 to double the penalty units for a person and almost triple the penalty units for a corporation for undertaking timber harvesting operations without authorisation. There is a move to make this offence a strict liability offence, so the manner in which events are interpreted changes and new section 45A will attribute certain conduct of a VicForests contractor to VicForests itself.

 

Clause 5 of the bill extends the time limit for bringing in a proceeding for an offence under new section 92A—so that is the new section. It moves that from two to three years, which seems quite reasonable.

 

Clause 6 introduces some transitional arrangements to ensure that attribution of conduct does not occur retrospectively. Again, this is quite reasonable.

 

Clause 7 is the clause that will require VicForests to comply with any relevant code of practice despite any other legislative provisions. Now, I have not been working in this space all that long—just over a year. I do not know what the history is, that VicForests are apparently not required to comply with the code of conduct, but it seems entirely reasonable to me that they should.

 

The next clause, clause 8, extends to the secretary’s power to enable enforcement of those codes, and on this side of the house we would not argue with that concept at all.

 

Clause 9 is the clause relating to the production of documents, so—

 

Mr Pearson: Come on, mate, put your back into it!

 

Mr MORRIS: Have you read this bill? I reckon I’m doing a sterling job.

 

You’ve got to have something to be excited about, and there are one or two things in it that I will get excited about, I can assure you. But it will not necessarily keep you awake until lunchtime.

 

So, an authorised officer—always exciting–will be able to require the production of documents specified in a notice from VicForests or a contractor without a court order. As I mentioned earlier there are other circumstances where someone other than VicForests or a contractor may be required to produce documents, and that option will be available to the authorised officer through an application to the Magistrates Court.

 

As with all these things, the VicForests contractor and VicForests seems entirely reasonable. Whether it is reasonable with regard to others we will have to see how it plays out, but there is a safeguard in there of inserting the requirement to deal with the Magistrates Court, so we are not uncomfortable with that. There is a penalty included in there for false or misleading material—20 penalty units for an individual and 100 penalty units for a corporation.

 

Clause 10 provides the incorporation of documents by reference to be inserted in any instrument created under the act, with the exception of the regulations.

 

Now, this sounds about as exciting as the authorised officers, I agree, but in fact it is an issue that I think as a Parliament we need to be aware of for two reasons. Firstly, we are essentially delegating the powers of the Parliament to the authors of the incorporated documents. I am not suggesting we should not be doing this, but it is effectively delegation. By doing this we are allowing the law to be changed through the simple change to be made in a document, and we need to be wary of that and we need to make sure we know what documents are being incorporated.

 

We also need, I think, to recognise that for those who are not lawyers, and that is obviously the vast majority of the population, it is not necessarily logical to say, ‘All right, well, there’s an act and there are regulations and then there is this whole raft of other stuff that effectively has the force of the legislation or the subordinate legislation, but it’s not in the same place and it’s not controlled by the Parliament’, which means that for those who are familiar with the system it is fine—it is a bit like incorporated documents in planning schemes; if you are used to working with them and you know where they are and you know where to find them, then you can put the picture together—but for the average person on the street it is a far more difficult thing.

 

So while I am not objecting to clause 10, I do think we need to be careful in this bill, or any other bill that we might consider, how essentially this delegation of the Parliament is used.

 

Clauses 11 and 12: 12 is a statute law revision; 11 is a savings provision—pretty straightforward.

 

Changes to the Forests Act: clause 13 is a similar provision to clause 4. In this case it creates a new offence of cutting, splitting or otherwise removing timber from a state forest, unless authorised, with 50 penalty units or a year in prison. Again, it is a strict liability offence, and the intention, as I understand it, is to ensure that there is similar treatment for that conduct, regardless of the circumstances or public land categories, because there is a range of measures under various acts that pick up similar issues.

 

Clause 14, incorporation of documents for the Forests Act—we covered that under the earlier bill.

 

Repeals: there is a series of spent provisions in clause 15, clause 16 repeals the power to establish a forestry education facility at Creswick and clause 17 provides for the repeal of regulation-making powers regarding that board. It is rather sad that we do not have a forestry education facility anymore, but given the fact that we do not, clearly we do not need a reference to that in the Forests Act and we do not need a reference to a board for a non-existent organisation.

 

Clause 18 repeals provisions for the continuation of licences and leases in relation to the Otways. The remaining clauses that affect that act repeal redundant provisions.

 

The ACTING SPEAKER (Ms Spence): Order! Loath as I am to interrupt you, member for Mornington, now is the time to break for lunch.

 

Sitting suspended 1.00 pm until 2.02 pm.

 

Mr MORRIS: I am delighted to be back after the luncheon break. Before the break I was talking about the detail of what is in the bill in terms of the clauses. I had worked my way through until I got to the changes to the Conservation, Forests and Lands Act 1987. They are pretty straightforward.

 

Clause 23 removes the exception clause that applies to VicForests with regard to codes of conduct, which is consistent with the earlier changes that have been made.

 

Clause 24 provides capacity for the secretary to seek injunctions compelling a person to comply with a particular law, conditional works approval, authority or notice, which is an opportunity missing in the current legislation and again is pretty straightforward.

 

Clause 25 makes statute law amendments, and clause 26 repeals the act.

 

As I mentioned at the start of this contribution, there is a view that the events of December and January now make these changes redundant. I certainly, as I have explained in the house, do not support that view.

 

But I do not think we can consider this legislation without keeping in mind the background and the other events that are affecting the timber industry because, as every member of the house is well aware, on 7 November the Andrews government announced it was going to rip the heart out of the timber industry. It was going to effectively sacrifice the timber communities for what in my view is simply an ideological position related to the inner city.

 

It is ironic that we are now debating a bill that for the large part seems to be further regulating the industry. The industry is going to be closed down, but we are debating further regulation of the industry. The fact is that the decision to close down the native timber industry will gut regional communities and it will destroy the livelihoods of thousands of families—it is just crazy.

 

One of the things that really irritates me about this debate is that facts do not seem to matter. Facts just do not apply in this case. There is no science in this. It is all about what makes you feel good. Because the fact is—as everyone in this house is aware—that 94 per cent of Victoria’s forest area is either unsuitable or unavailable for timber harvesting.

 

A lot of it should not be available. A lot of it is in national parks. A lot of is reserved, for perfectly valid environmental reasons, and that is what a balanced approach is all about. Ninety-four per cent of it is not available.

 

Of the area that is available the annual utilisation rate is 0.04 per cent—less than half of 0.1 of 1 per cent. It is a tiny fraction of the resource. If you can claim that that makes the industry unsustainable, it is just absolutely crazy.

I think we need a better standard of debate than the misinformation—and I am not putting this on the government—in the broader debate.

 

The misinformation, the myths and frankly the lies that have been told in this debate out in the community—again, I am not putting this on the government, I want to make that clear—are basically one misleading statement after another, and it is not reflecting well on our democracy as a whole.

 

The fact is that this Victorian timber industry provides a renewable resource. It should not be sacrificed on the altar of ideological outcomes. We are still going to need timber. If we cannot get it from our own forests and we cannot get it from plantations—and I will come back to that in a second—then it is going to come from overseas. It is going to come from sources that are a whole lot less sustainable, sources that are unsustainable, particularly compared with our own.

 

Frankly, the way this war has been waged and the way that it has been waged for decades is not a good reflection on our society, but I think people are tired of these sorts of divisive debates. There is an opportunity here to take a sustainable industry, to work with it and make it an asset for metropolitan Victoria and for regional Victoria for decades and generations to come, but the decision was made on 7 November to close it down.

 

So I say it is not a decision that in my view is about the environment, it is a decision about politics.

 

The fascinating thing about this bill is it suggests there was little, if any, input from the Victorian public service with regard to this policy, because if this had been on the books as part of an essential evolution, the bill we are debating would not have been brought in. Having served in government, I know what goes into bringing a bill into the house, and you would not put the resources into the sort of work that has gone into bringing this bill into the house if you had an intention to close down an industry.

 

I mentioned that I would come back to plantations. We do not know, and clearly the Premier does not know, where we are going to get our timber from when the industry is closed down.

 

Back in November, a week or so after the announcement, we asked the Premier how much high-quality appearance-grade plantation timber would be ready to harvest in 2030. He did not answer.

 

Why didn’t he answer? Well, he knows damn well that there is not a single hardwood plantation tree going to be ready by 2030, and yesterday in a briefing—I will not go into detail—it was confirmed that the overwhelming majority of whatever we grow in plantations between now and 2030 is going to be softwood.

 

It is not going to be the sort of timber that is appropriate for structural uses. It is certainly not going to be the sort of timber that is appropriate as appearance-grade timber. It is certainly not going to be the sort of timber that is available for furniture.

 

Michael O’Connor of the CFMEU has said very, very rightly that the plan put forward by this government does not provide workers, in his words:

 

with a fighting chance to transition or leave the industry with dignity.

 

It is just an appalling policy approach for this industry. Interestingly Mr O’Connor—and this is from 12 December last year—was quoted as saying the plan to move to plantation supply was vulnerable to natural disaster. I am quoting again:

 

The rigidness of the plan leaves the workers’ jobs it is meant to secure vulnerable to factors outside of the government’s control …

For example, if there is a major bushfire which damages the resource …

 

We had the major bushfire. It did not damage the plantation resource, but it gave us a pretty clear indication of what could happen. There are factors outside the government’s control, and the government has proved it cannot manage native forest. It cannot protect native forests. It cannot take the steps necessary to protect native forests. Why should we expect the government to do any better, frankly, managing plantations?

 

Now, I mentioned on my review of the bill that there were a couple of things that were of concern in the opposition’s appraisal of the bill.

 

Clause 4 increases significantly the penalties for unauthorised timber harvesting. It replaces the existing provision, the existing section 45, but it turns it into a strict liability offence. So you do not have to prove intention; if the damage has occurred, then the liability is there.

 

Now, the penalties have increased significantly. They have doubled and tripled respectively, individual and corporate. I question the need for strict liability.

 

If people are negligent—if they set out to harvest outside a coupe or if they set out to damage a forest—then an appropriate prosecution should occur and we should throw the book at them. I do not argue that. But the existing clause does not contain a requirement for strict liability, and I question the need for it. Of course it will depend on how closely this is enforced and the manner in which it is enforced.

 

I know that there is some concern in the industry that this clause will be used to drive the larger agenda and try and push the industry out earlier. I give the government more credit than that, but it is a risk. I know the industry is concerned about it. I am certainly concerned about it. My colleagues on this side of the house are concerned about it, and we will be watching the implementation of the new section 45A very, very closely.

 

I think it is also interesting that we do not see any amendments to create a similar offence for those who attempt to physically disrupt lawful harvesting. There is no comparable offence in this bill. There is no $19 800 fine for individuals. There is no $100 000 fine for organisations.

 

I think it is important that people stand up for their rights and have the opportunity to have their say and express their view even if, as happened yesterday in this place, it is counterproductive. Frankly I think what happened yesterday was counterproductive, but how is it fair that people going about their business lawfully, harvesting timber in accord with permits and in accordance with law, can have their livelihoods disrupted, their incomes disrupted, by people who are effectively subject to a slap on the wrist?

 

That is simply not fair. If we are going to have a regime strictly enforcing one set of activities, we should have a similar control strictly enforcing people who seek to disrupt them, because this is a double standard. It is a double standard that is inherent in this bill, and unfortunately it is often a double standard in the way this government approaches country Victoria.

 

Clause 13 relates to the cutting and removal of timber in state forests. It is a new offence. The fine is in excess of $8000 and a year in prison.

What we do not know about this bill is whether it is possible for someone to find themselves prosecuted under the changes made by clause 4 and under the changes made by clause 13.

 

I think it is an indication of the government’s view that a prison term is proposed in this case and not in clause 4, but we need to have an explanation of whether someone who is charged under one provision can also be charged under another, because they might find themselves as an individual subject to $28 500 in personal fines and a year’s imprisonment. I do not think that is the intention of the act, but it would be useful to have that point clarified.

 

The second thing is that with this particular offence it is a matter of degree. I understand and I support the intent of clause 13. I understand that there have been issues, and I understand that there is a loophole there that certain individuals have exploited.

 

So I have no problem with the solution, and I accept that this is a genuine problem. But again, this is a strict liability offence. As I mentioned earlier, yes, damage does occur regardless of intention, and we need to guard against that. But it comes down to the manner in which this particular change will be enforced. The strict liability offence is created, and then a series of exemptions are included in both the Sustainable Forests (Timber) Act and the Forests Act.

 

This is hardly a plain English rendering of the policy intent of the government. I am not being critical of the drafting; I think perhaps it is necessary in the context of the existing act. But certainly what I would like to see is clearer material both for the members of the public who need to comply with these controls and for those who are enforcing these proposed controls—to make it clear that particularly the existing exemptions on domestic firewood collection remain in place. I know members will have different views on whether we should continue to burn firewood for heat and for energy. But it is a critical fuel, it is a critical heat source in country Victoria, and it is essential that access to that resource is not compromised for those people who absolutely depend on it to cook their food and keep their houses warm throughout our winters.

 

While the bulk of the bill is somewhere between fine and innocuous—we have no problems with most of it—with regard to clause 4, our concern is very much about how that clause is to be interpreted and enforced. I know, as I have said, the industry are nervous about it. The opposition are nervous about it. Given that it does not change the regime around timber harvesting, we are not proposing any changes to that particular section, but we do believe the government needs to be very, very careful about the manner in which it is enforced.

 

With regard to clause 13, the firewood, again it is about enforcement. If you are bringing trucks in and loading up firewood illegally, you should be prosecuted. You should have the book thrown at you. But if you are putting enough in your car boot to keep yourself warm for the weekend and you are doing it within the rules, then clearly that is a different situation—and these things are not always enforced in the way that the Parliament intended. So we raise those issues.

 

So at this point the opposition will not be opposing the bill in the Legislative Assembly, but we are reserving our position and we are happy to have that conversation between the houses about putting some parameters about the way these things are enforced.