Illegal Logging – Progress or Regress?

A re-drafted version of an illegal logging bill has been introduced into Australia’s House of Representatives.  Even with some re-tooling, the Bill seems as problematic as earlier versions.

The re-drafted version was released in late November, almost eight months after it was introduced into the Senate.  In December, a Senate Committee conducted hearings into the revised Bill.

Many of the main concerns raised during earlier hearings on the preliminary exposure draft remain, particularly for developing countries exporting to Australia.

Among the major gaps still in the Bill is a clear definition of the legal standard applicable for importers bringing timber into Australia, and an incomplete definition of ‘illegally logged timber.’

Critics of the Bill have pointed out that this will lead to a ‘chilling effect’ and halt timber imports into Australia. This would suit the Greens Party and NGOs like WWF and Greenpeace.  Despite clear evidence the flow of illegal timber into Australia is very small and difficult to detect, the Bill is part of a global campaign to secure passage of laws which ban imports of illegal timber and damage forest product exports from developing countries.

It is not normal for one country to restrict imports unless importers can prove they were legally produced in another country.  WTO rules do not grant such a general right.

The Bill foreshadows that importers will need to meet ‘due diligence’ requirements to bring in timber, creating yet another trade barrier.

Australian agricultural officials claim the bill will be consistent with WTO rules because local producers will have to meet similar conditions to put Australian timber on the market.

They are wrong.  Analysis provided by Associate Professor Andrew Mitchell, a trade law expert at Melbourne University, points out that the bill transgresses WTO rules.

The Explanatory Memorandum for the Bill also stated that it would work ‘in conjunction’ with laws and regulations in other states and territories – it will simply overlay state laws; and that national laws, industry and private certification schemes which would verify legality might be considered. These points alone provide enough regulatory uncertainty to persuade importers as well as processors to put off investment decisions.

But the two-year window between the passing of the legislation and the introduction of the regulations – and the regulations themselves — remains.

Senator Colbeck, the shadow Minister for Forests quizzed government officials on how a Bill which made something a criminal offence could be proposed when no regulations defining the offence, a necessary accompaniment to any law, had been prepared.

The Department of Agriculture Fisheries and Forestry (DAFF) stated that the gap between the passing of the law and its implementing regulation was designed to “demonstrate commitment” from the government to take action against illegal logging.  One member of the gallery was overheard saying, ‘so it’s political.’

Even Greenpeace raised concerns about the lack of detail on the regulation within the Bill.

DAFF also came under fire from a number of representatives from overseas peak bodies and governments over the lack of consultation with trading partners.

Bob Tate of the Papua New Guinea Forest Industry Association pointed out to the committee that the Bill would immediately impact the livelihoods of approximately 10,000 smallholder Papua New Guineans who rely on exports of small amounts of harvested timber to Australia.

A delegation from Malaysia also pointed out that upwards of AUD 200 million in furniture imports from Malaysia would be impacted by the legislation.

However, both groups claimed that consultation between them and the Australian Government had been minimal since the beginning of the process.

While Green groups assert this is an environmental issue, it is essentially a legal issue that will have far-reaching impacts on trade.