In Parliament

Bill Debate - Conservation, Forests and Lands Amendment Bill 2022



Wednesday, 9 March 2022.

Mr NEWBURY (Brighton) (11:49):

It is a pleasure to rise on my first bill as Shadow Minister for Environment and Climate Change on the Conservation, Forests and Lands Amendment Bill 2022, but I rise on this particular Bill with a heavy heart — with a very heavy heart — because I look around the Chamber and I see colleagues who have spoken to me about the impacts of this Government’s decisions in this industry, the policy decisions this Government has taken and the impacts those decisions are having on industry, on businesses, on flow-on businesses and on their families, and it breaks your heart. It breaks your heart to know what the Government promised, how they broke their promises and the impacts that is having on some of the townships and families around Victoria — the real impacts.

In my mind the Minister for Energy, Environment and Climate Change is killing the harvesting industry by stealth.

The Premier stood up and set out a policy agenda with a 2030 date attached to it and committed to the community that current levels of harvesting would be maintained to 2024. That is not what is happening, that is not what the Minister is doing and that is not what this Bill will allow the Minister to do and what industry knows the Minister will do with those powers, because today industry is 50 per cent down—50 per cent down. We are at the start of 2022, and it is 50 per cent down. By the end of the year, it will be 75 per cent down. So, while the Premier stood up and gave a commitment for 2024, we know today in fact industry is 50 per cent down and by the end of the year will be 75 per cent down. There will not be an industry next year, in 2023. That is the result of this Minister’s actions by stealth. Her behaviour has been cruel to industry towns and their families.

When this Bill was first introduced the one word that stuck out and the one word that the government has repeated—and we will hear it all day from government speakers—was certainty: ‘The purpose of this bill has been to provide certainty’. I am sure it is in the top line of every government speaker’s talking points. Well, we heard that word last year, didn’t we, when there was an overhaul of the timber code. What did the Government say? What did the Government say was the reason behind that? Certainty. What is the reason for this Bill? Certainty. What is
the reasoning behind the review of the code currently underway? I will let you guess. Does anyone want to have a guess? Certainty. So three times in 12 months the Government has said to the community, ‘We are doing things in this space to provide certainty’. Well, at the absolute least this Minister is incompetent—at the absolute least. How can you possibly take action three times in the same space in 12 months and come back again and again to provide certainty? There is no certainty. You do not have to go very far and you do not have to talk to much of the community or industry in this sector before you will hear the word ‘uncertainty’. We know that we cannot trust the Government to provide certainty, because they have not, over and over and over again.

So, we know that there is currently a 50 per cent reduction. We also know that supply is 50 per cent down. We also know that the remaining supply is partly propped up by other states. Other states are propping up our supply. We know that roughly 75 per cent of the approved coupes on the timber release plan are subject to court injunction. Can you imagine that, 75 per cent? Can you imagine if any industry had three-quarters of their activity shut down effectively by injunction?

We know that that is the Government behaving by stealth because they have not fixed it—they have not done anything about it. We also know that there are 10 contractors currently out of work as a result of a court injunction, affecting up to 80 jobs. These are families — each one of those jobs is part of a family — so an effect on 80 people is an effect on hundreds. There are two sawmills that are currently standing down employees or reducing staff, and by May there will be three more. Australian Paper has 1000 employees. How will they be by August — those 1000 employees — when they have no supply? By August, will they be able to operate? All of these numbers, all of these facts, should all go back to reminding us that we are talking about people, we are talking about jobs, we are talking about businesses, and all of these people were promised a continuance to 2024 with a 2030 end date. Well, the facts say otherwise.

I will turn to this Bill specifically. The Government will tell you that the purpose of the Bill is to expand their head of power to make certain guidance around the code, and the expanded head of power will enable the incorporation of documents:

… to confer a discretionary authority on the Minister … and leave any matter or thing to be from time to time, approved, determined, dispensed with or regulated by the Minister or the Secretary.

I will get to what that actually means a little later.

There is no doubt that we all care about the 7.8 million hectares of public native forests. I am sure every person in this place does. I know I do. 95.5 per cent of it is locked up, and another 5 per cent is on an 80-year rotation for harvesting. What has happened over time is that environmentalists have used a grey area of law to shut down the industry, to shut down harvesting. It is not a claim that I make on my own; it is a statement that the government has recognised. Numerous Ministers have acknowledged that that is what is happening—a grey area of the law is being used as an environmental tactic. Those are not my words; those are the Government’s words.

Knowing that we face a grey area of law that is being used in a particular way, instead of doing something about it, instead of providing industry and communities with certainty to live up to the commitment they made, the Government has done nothing, and now they introduce a bill and powers that nobody trusts them with — enormous powers. In a private briefing late last year — limited because this bill has had limited consultation or industry debate — the government described these new powers as enabling the:

… development of Compliance Standards that specifically set out how the timber industry can meet its obligations …

and the establishment of:

… a legal presumption that operations complying with the guidance outlined in a Compliance Standard will have met the requirements of the Precautionary Principle.

And I will define that a little bit later.

So, in short the standards will give, in the Government’s interpretation, industry guidance on what measures can be taken that will comply with the precautionary principle, that is:

The timber harvester can either comply with the standard, or it can apply alternative measures to meet the requirements of the precautionary principle, as is currently the case. If the timber harvester acts in accordance with the compliance standard, it will be deemed to be compliant with the precautionary principle requirements of the Code. If the timber harvester does not act in accordance with the compliance standard, the question of whether the timber harvester has acted in accordance with the precautionary principle requirements of the Code can be investigated …

For background, and I touched on it earlier, the precautionary principle is a grey area of law. It makes a contribution to sustainable use of natural resources by requiring their use to be, amongst other things, prudent, and that was the underlying definition in Telstra v. Hornsby. As the Department has set out, the precautionary principle is a rule of environmental prudence that concerns the management of environmental risks where there is uncertainty in order that human actions are calculated or designed to prevent or avoid actual degradation to the environment associated with such risks. Precaution requires decisions, actions or conduct that may have adverse environmental consequences to be properly informed and subsequent responses to be properly calibrated to risk and what is and is not known. It is a grey area of law—a grey area of law that is being used tactically. I mentioned earlier Telstra v. Hornsby, and in application I will note a further judgement describing that the principle as a need to take precautionary measures is triggered by the satisfaction of two conditions, precedents or thresholds: a threat of serious or irreversible environmental damage and scientific uncertainty as to the environmental damage.

The reason I have set out the concept, apart from to give background to the grey, is to also make clear the balance between protection—which I am sure everybody in this place cares about, I am sure that industry cares about and I am sure that communities care about and the broader community cares about—and workability. Mark Poynter, who was an architect of the code, made clear what he meant when writing a code to take into account that balance, and if I can quote from him:

The code is designed to enable practical and economically workable timber production in a way that minimises its environmental impacts. The code is a workable compromise between the needs of conservation and the practicalities of cost-effectively producing timber.

He uses the word ‘compromise’, but I think we can say ‘balance’ is equally appropriate in that context. His view, if I can go further, is that now the code is being seen by some, including at a political level:

… as a potential vehicle for ending timber production rather than enabling it.

Well, that is what is happening; industry will not be operating next year. It is clear that the potential vehicle for ending timber production rather than enabling it is the case. It is what is happening. It is what is happening on the ground.

So what are the problems with the Bill in general terms? Well, it is a short Bill, because what it does is it gives the Minister endless power. It is a very short Bill that says, ‘The Minister can have lots of power’. As environmental groups have described it, it is a God power. That was quite a neat little description—a God power. In short, there is no scope around the power, no scope at all. There is no scope around how the power is used. There is no scope around the power at all. That is concerning. That should concern every Member in this place—that a Minister has asked the Parliament for power with no scope—and we know that what the Minister is asking for in receiving that power is that they can, as they have asked for, have the power to provide guidance to industry.

Well, what would you do if you were asking for power at that level, of that broadness, in that way? You would provide some certainty around how you will consult with the community, how you will consult with industry. Well, the Minister has refused to do that. There is no guarantee and there is no assurance that consultation will take place, that engagement will occur. In fact effectively
the Minister has simply said, ‘Trust me’. Well, I do not think anyone does. I do not and, sadly, neither does industry. In fact industry has gone to the Minister and said, ‘We need certainty, and we are willing to consider what you are asking for on the basis that you give us some assurance that when you are asking for this much power we will be included in future discussions, included in consultation, and that we will be part of a process’—things that Labor spent a lot of time pontificating on but in this case not delivering. And what has the Minister said to industry: ‘I’m not going to do it. I’m not going to provide that to you. We’re putting a bill to this Parliament that is going to give me a lot of power, and you just have to trust us to provide that keyword we talked about earlier, certainty’— another measure seeking to provide certainty.

And further, not only has industry gone to the government seeking some guarantee of engagement, I think one other thing that strikes most people when looking at this Bill is the lack of any check or balance. There is no check and balance. There are no in-built mechanisms for reviewing how the Minister uses what the environmental groups describe as the God power. It is a short Bill that gives the Minister extraordinary power, guarantees no consultation in its use and application and has no check or balance after the use of that power. And throughout the last week, when the Government briefed me as the incoming shadow on this bill, I said to their office, ‘In good faith, these are the three issues that I immediately see. Would you mind raising those with the Minister? These are the issues that are being raised with me’. It is not unreasonable to provide some certainty to an industry and a sector that is in so much pain—something; provide a couple of sentences. I put the offer to read those responses into Hansard for the Minister. Now, that does not happen too often. I offered the opportunity to read those responses on those three issues into Hansard, and I would have read them word for word. Guess what? Nothing.

Those three issues have not been addressed. Those three issues that are being raised by industry with government privately are also not being addressed privately. Is there any wonder that the sector looks on and says, ‘I don’t trust. I don’t trust’. If in private conversations the Government is not willing to provide any scope around the use of power or any certainty around engagement while so many businesses are on their knees, is there any wonder that they have a lack of trust? It is only fair and reasonable that there is a lack of trust. And again I say on record: my offer to the Government was genuine, and I would have provided those responses. I would have read them into Hansard in full. Disappointingly that offer was rebuffed.

I referred earlier to Mark Poynter, who was one of the designers or architects of the original code. If I can read in his concerns:

The obvious problem with the bill is that it would give the minister discretionary power to make changes to the code potentially on a whim, perhaps politically motivated to appease forestry critics. This is a problem because the code’s provisions have been carefully determined based on a mix of science and decades of overseas and Australian field observations, the operational practicalities for workable timber production and a recognition that forestry operations are restricted to a minor portion of the forest estate that is designed for that purpose and is therefore not meant to harbour pristine environmental values.

I think when you hear those words from Mr Poynter it is difficult not to go back to the point that I raised earlier—that of balance. The Minister is asking for power that can be misused—it can be misused—at a time when industry is almost shut down. Seventy-five per cent of approved coupes on the release plan are subject to court injunction—75 per cent. Is it any wonder that industry is looking at what the government is proposing and saying, ‘Well, do we really want a Minister to have power to so disproportionately affect that balance?’.

In this place we will not oppose the Bill on the basis that industry does need constraint on litigation. They are desperate for a constraint on litigation. They are desperate for certainty.

On that basis the coalition will not oppose this Bill in this place, but I can assure you it is not because there is overwhelming trust in the Minister and the Minister’s use of this short Bill with lots of power. In fact it is because when you weigh up the uncertainty, when you weigh up the effect on industry, when you weigh up what people are going through—what families, local townships and people are going through—you need to weigh that up against the hope that something will go right for them, that the Government will do the right thing. It is sad to say that when you talk to people in this sector what they say over and over again is, ‘I don’t think I have any hope left’. I have been struck by how many people have said that to me: ‘I don’t have hope’. They are hoping that the Minister will do the right thing and not use this power in an ideological way. As I said, in this place we will not oppose the Bill.

So I say to the Minister, in summary, the three issues that have been raised over and over again are on scope of power, on use of power and on the unbridled, as environmental groups refer to, God power. They are a real concern, and it is only reasonable that the Minister publicly address those concerns. Providing a talking point I had not even raised when I raised my concerns about the three issues, the Minister’s advice was that one of the Government backbenchers would respond to those issues. That is not worth anything, frankly. That is worth nothing. That is worth absolutely nothing. So I say to the Government: the least the Government could do is provide people with certainty. That is the least the Government could do. They could take those little talking points that they are circulating to the backbench and put them on the record in the Minister’s own name to give a community and an industry and people who are doing it so tough the certainty they deserve. That is not too much to ask of this Government.