One of the great cons of the decision made by the Australian government to strike a deal with the Greens — leaving foresters and farmers in the cold — was the claim by the Greens that native forestry was exempt from the provisions of the previous Environment Protection and Biodiversity Conservation (EPBC) Act.
That is Wrong.
Under Section 34 of the current EPBC Act, where a Regional Forest Agreement (RFA) is in place and named, a forestry operation does not seek approval under Part 9 of the Act. But this does not mean the operation is exempt from the EPBC Act in respect to threatened species.
The Federal Court has held that an RFA provides an alternative mechanism for achieving the objects of the EPBC Act, through an intergovernmental agreement that allocates responsibility to the States for regulating matters of national environmental significance within an agreed framework.
Statements by Green Senators suggest they have not read the Federal Court decision. The record is clear—and publicly available on the Federal Court’s judgments database.
The move to abolish RFAs represents a major step backwards in environmental control of Australia’s forests.
No longer will the terms and criteria contained in the Regional Forest Agreement Act 2002 operate through the intergovernmental agreement recognised by the Court. Those criteria were derived from the Montreal Process, to which Australia is a voluntary member, though not a signatory.
The constitutional reality is that land control is a State issue. Forests — whether on State land, private land, public reserves or plantations — were regulated through RFAs. With their abolition, that framework is gone.
So what is really going on here?
The Federal Government’s advice appears poor. More plausibly, the Government has played politics simply to push through the Reform Bill. The EPBC Act already contains a structure for approval through bilateral agreements.
The RFA phase-out period is 12 months. That is sufficient time to put in place a bilateral agreement with NSW, Tasmania, and Queensland. Essentially, an intergovernmental agreement, just like the RFA, but probably with more than forestry in it.
The practical issue is capacity.
Despite the growth in the Australian Public Service, the Commonwealth does not have the national structure of field officers required to inspect all operations approved under the EPBC Act.
If National Environment Standards are to be effective, inspections will fall to State equivalents of environmental protection authorities. This raises concerns, particularly if the NSW EPA’s operational procedures are any guide. Yet it also offers the Commonwealth a pragmatic way forward.
Any new intergovernmental agreement will need to account for State compliance across mining, forestry and agriculture. There is speculation here, but calmly considered, these are real options.
The Greens, however, have once again played with misinformation. On land use — particularly forestry — they appear not to have analysed where these issues might lead.
The certainty is that the Greens have empowered their support groups to gear up for lawfare. Public interest environmental groups, as a matter of policy, do not face costs orders for unsuccessful litigation. This creates a powerful incentive to disrupt business operations until companies walk away. The objective is clear: shut down successful industries. Forestry, agriculture and mining — particularly gas — have all been targeted.
