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The TFGA was to have presented a formal submission this week to the Legislative Council Select Committee that is looking at the Tasmanian Forests Agreement Bill, the legislation that would enable the agreement between the industry and some environmental groups to be implemented.

You will recall the Bill flew through the House of Assembly in December, the day after the agreement was signed. It was left to the 15 members of the Legislative Council to examine it properly and a majority found it wanting.

We’ve spent a considerable amount of time and money analysing the Bill from the point of view of our private forester members. That research led us to drafting a formal response, due to be submitted by today. However, on Tuesday the government tabled 150+ pages of amendments and additional information for consideration by the Legislative Council Select Committee.

So Committee members have to get their minds across what the government is now seeking to do. And so do stakeholders preparing submissions – including TFGA. So it is back to the drawing board.

On Wednesday we told the members of the Committee that we would come back to them with our written submission when we’ve had a chance to consider and seek advice on this new information. In the meantime, we made the following comments.

We have had long-held concerns about the process from the start. They remain:

• the lack of due process
• the excusive nature of the negotiations that led to this legislation
• the absence of any public interest input until this stage
• the political agenda being pursued by both the Australian and Tasmanian governments
• the lack of socio-economic modeling of impacts
• the lack of sovereign risk protection
• the inability of the signatories to offer durability because they cannot control all parties involved in the Tasmanian forest industry
• the risk of regulatory creep – rules and regulations introduced for public forests spilling over to private forestry activities.

When the House of Assembly passed the original Bill, we decided to brief counsel on behalf of private forest growers. We sought an opinion from a barrister on the legislation and its interplay with both the Tasmanian Forests Agreement and the Tasmanian Forests Intergovernmental Agreement.

There are four significant conclusions:

• the Bill creates a new method of reserving land for conservation purposes, a regime that could see land reserved that does not meet the statutory requirements of the Nature Conservation Act
• there are inherent uncertainties in the Bill and the associated funding packages, including whether the Commonwealth government has the constitutional power to provide the funding that it seeks to provide. The 2012 High Court decision in the Williams case says if there is no federal legislative basis for the Commonwealth to fund an agreement, it might be subject to a High Court action that it has exceeded its executive powers
• there is the risk that the Commonwealth could renege on its agreement with the Tasmanian government in the future because the TFIA does not create legally binding rights and obligations. That strikes at the heart of sovereign risk. The government recognises that this is an issue, but has chosen not to include any provisions addressing sovereign risk in the Bill.
• the lack of compensation provisions in the Bill for those who may be indirectly affected by a protection order that causes an immediate freeze on forestry operations. That includes private forest managers - our members.

We’ll do our homework on the new documentation and prepare our submission on the issues we see as inherent in the Bill. However, we stand by our fundamental opposition to the Bill and to the whole flawed process.