Illegal Logging Laws slam small business people
ICA has been approached by small business people in the timber and timber products importing sector. There are 15,000 such small business people in the sector. New ‘illegal logging’ laws are starting in November 2014.
Update December 2014: ICA is pleased to report that the Abbott government has responded to the problems identified in the Act and has committed itself to fixing the issue. See here for the commitment from Assistant Treasurer Josh Frydenberg.The laws:
- are impossible to comply with;
- create criminality for breaches;
- will force small business people out of the sector.
- Require the government department to be responsible for quality information.
- Enable compliance to be tied to the government information.
- Ken Phillips’ first explanatory article in The Australian, 28 August 2014.
- Reply from the Minister, 16 September 2014.
- The ‘Illegal Logging Act’, full text.
- The Illegal Logging Prohibition Amendment Regulation.
- Summary of the key sections of the ‘Illegal logging Act’ (immediately below)
Summary: What the ‘Illegal Logging Prohibition Act 2012’ saysIn defending his Act the Minister made statements that we believe are factually incorrect and/or illogical.
Below are relevant sections from the Act and the Regulation that show its clear intent and purpose.
- Section 9 of the Act is the key. After 30 November 2014, importers can be prosecuted for ‘negligence’. This means that importers can be prosecuted if they did not know (but a reasonable person would have known) that their timber was illegally logged.
- Section 12 of the Act requires importers to conduct ‘due diligence’. This combines with Section 10 of the Regulation to set out the criminal offence.
- Section 10 of the Regulation subsection (1) requires an importer to establish whether the foreign company (from whom they are buying) met all legal requirements for harvesting. This demonstrates that Senator Colbeck was wrong in his claim in a letter to The Australian that “there is no requirement for importers to trace timber back to its source or ascertain if a law has been broken in a foreign country.”
- The Act applies a Department of Agriculture certification process. However, even if imported timber has been ‘certified’, Section 11 of the Regulation still requires the importer to assess “information and evidence gathered by use of the framework to ensure it is accurate and reliable”. In other words, even if timber is certified as legally logged by the Department, importers are required to double-check and not rely on the Department’s certification process.
- Section 14 of the Regulation requires that an importer must assess if there is a ‘not low’ risk (whatever that means!) that a product contains illegally logged timber. For example, a furniture importer has to assess and verify the logged status of the wooden frame in furniture they import.
- In a notice to the industry of 19 August 2014 from the Department, ‘wood’ includes sawn timber, veneer, mouldings, wood panels, plywood, pulp (and get this) paper and furniture. Importers must answer a ‘community protection question’. Yes, when you buy paper for your printer from your local newsagency, if the newsagency owner has purchased the paper on-line from overseas, the newsagency owner must verify whether the wood content in the paper was legally logged.
“illegally logged in relation to timber, means harvested in contravention of laws in force in the place (whether or not in Australia) where the timber was harvested.”
Note: This means that an importer must know, understand and ensure compliance with the logging laws of every country from which timber or timber products could possibly have come.Section 12 says “A person commits an offence if (c) the person does not comply with the due diligence and requirements for importing the product…”
Note: This creates the criminal aspect of the laws.Section 13 of the Act says “A person commits an offence if (c) the person does not make a declaration to the Customs Minister …”
Note: A criminal offence occurs by not filling in a form.Section 14 of the Act says in defining ‘due diligence’ that the importer must
“3(a) gather information for the purposes of assessing that risk includingAnd
(i) the kind, origin and details of harvest timber
(ii) the name and business addresses of …suppliers of timber
(iii) evidence of compliance with the laws of the country in which timber was harvested
(iv) the completeness, accuracy or reliability of information gathered.”
The importer must assess [under 5(a)] “laws or processes under laws in force in a State or Territory or another country.”
Note: This is the section that imposes an obligation to know the type and origin of all timber imported, who logged and processed the timber at every stage, the details of each logging law in every country and to be totally accurate in all this information. Note also the bureaucratic department responsible for policing this law and prosecuting does not seem to be able to gather the information required.