Illegal Logging Prohibition Bill

Last week the House of Representatives passed the Illegal Logging Prohibition Bill.

The policy intention is to combat the international trade in illegally logged wood - by making it illegal to import into Australia timber which has been illegally logged in other countries. So far, so good – we can all agree that it is highly desirable to stop criminals chopping down virgin rainforest in Indonesia or Brazil in breach of local laws.

On the other hand, there is nothing wrong or undesirable with importing legally logged timber from other countries.  It is a good thing – giving jobs and income to workers in developing countries, and allowing Australians to enjoy affordable timber products.

The important thing, then, is to make sure that any law which regulates the conduct of Australian importers is clear and easy to understand – so that Australian citizens and businesses wishing to comply with the law are clear about what their obligations are.  Unfortunately the Illegal Logging Prohibition Bill is neither clear nor easy to understand. 

Once this Bill passes into law, you are at risk of being prosecuted and jailed for up to five years if you import timber which was logged in breach of the law in the country where the logging occurred.  Under section 8 of the Bill, it is an offence to import a “thing” which “is made from, or includes, illegally logged timber” and it is not exempted by regulations made under section 8.  The definition of “illegally logged timber” is timber which is “harvested in contravention of laws in force in the place (whether or not in Australia) where the timber was harvested.”

Now the key thing is that the regulations will not be made and implemented for some time – the government says at least six months and it will probably take considerably longer.  So throughout this period Australian citizens and businesses who import any item with any timber in it are exposed to criminal penalties.  They have no practical way of knowing what they should do to conduct themselves lawfully.

Ultimately, the idea is that there will be a list of timber products you are allowed to import, and a list of the steps you as an importer must take (“due diligence”) to comply with the law. But the problem is that these lists will be in regulations to be made by the government later – yet as soon as the Bill passes into law, the prohibition in section 8 will apply.

Government officials were quizzed about this in a parliamentary hearing late last year.  Mr Talbot of the Department of Agriculture, Forestries and Fishing had this to say: “The prohibition in clauses 8 and 15, which comes into effect on the day after royal assent if the bill is passed in its current form, relate to the importing and processing of all timber and timber products…I guess that, from our perspective, the intention is to show the government’s commitment in terms of the illegal logging bill.  This has been part of election commitments, and has been on the boil, since 2007.”

The only comfort that Mr Talbot could offer for importers was that for a prosecution under section 8 to be successful, the Commonwealth would, under the Commonwealth Criminal Code, need to show that the importer had carried out the act of importing illegally logged timber intentionally, with knowledge, or recklessly.  Unfortunately, this offers little comfort to a businessperson trying to comply with the law.

Imagine you import furniture which includes wood harvested from ten year old trees in the Indonesian province of West Kalimantan.  Without you knowing it, the law in West Kalimantan has recently changed so this particular kind of wood may not be harvested from trees which are less than fifteen years old.  Under the provisions which the Gillard Government has just passed into law, you are now exposed to being charged and convicted for a breach of the law.  Were you reckless in not seeking to inform yourself of the law in West Kalimantan before you imported the timber?  No doubt the prosecutor will argue that you were. 

When the Bill was before the Parliament last week I asked the Parliamentary Secretary for Agriculture, Fisheries and Forestry, Mr Sidebottom, about this issue.  His response offered no assistance on this issue: “Businesses may seek to implement informal measures to ensure they are not a party to supplying illegally logged timber into the Australian markets.”  In other words, until the regulations are in place, before you import any product you need to find out for yourself (a) whether it contains timber (b) what kind of timber it is (c) where and when it was harvested (d) what laws applied in the place of harvesting including local, state and national laws and (e) whether its harvesting complied with those laws.  Unless you take these cumbersome and impractical steps, you are exposed to the risk that a change in a law in another country or a province of another country could land you in jail.

This is a hopeless way to govern.  If you want people to comply with the law, you must make the law clear.  What the Gillard Government has done with the Illegal Logging Bill is the opposite of this.  Once the Bill comes into force, and during the substantial period before the regulations are in place, importers will be exposed to legal obligations which in practical terms will be near impossible to comply with.

It’s enough to make you wonder if the real intention behind the Bill is to discourage the importing of timber whether legal or illegal  – in other words, old-style protectionism.  That would certainly seem to be the objective of the timber union, CFMEU, based on the media release it put out last week:

“Thousands of timber, furniture and pulp and paper workers, whose jobs are under threat, are relying on the Illegal Logging Prohibition Bill to pass without delay...Wood products represent the second largest sector in Australia’s manufacturing industry and cheap, imported products are costing workers their jobs and killing their communities.”

We all want to stop illegal logging.  Passing badly worded and draconian law which imposes capricious risks on importers will not do much to achieve that objective.  But it will have some very nasty side effects, including discouraging lawful and economically desirable trade in legal timber, and potentially locking up business people who have fallen foul of a law which in practical terms is near impossible to comply with in the period before the regulations are made.