An Act to combat illegal logging, and for related purposes
Part 1—Preliminary
1 Short title
This Act may be cited as the Illegal Logging Prohibition Act 2012.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information |
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | 28 November 2012 |
2. Sections 3 to 8 | The day after this Act receives the Royal Assent. | 29 November 2012 |
3. Section 9 | The day after the end of the period of 2 years after the commencement of the provision(s) covered by table item 2. | 30 November 2014 |
4. Sections 10 and 11 | The day after this Act receives the Royal Assent. | 29 November 2012 |
5. Sections 12 to 14 | The day after the end of the period of 2 years after the commencement of the provision(s) covered by table item 2. | 30 November 2014 |
6. Sections 15 and 16 | The day after this Act receives the Royal Assent. | 29 November 2012 |
7. Sections 17 and 18 | The day after the end of the period of 2 years after the commencement of the provision(s) covered by table item 2. | 30 November 2014 |
8. Sections 19 to 86 | The day after this Act receives the Royal Assent. | 29 November 2012 |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Crown to be bound
(1) This Act binds the Crown in each of its capacities.
(2) This Act does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence.
4 Act does not extend to external Territories
This Act does not extend to the external Territories.
5 Concurrent operation of State and Territory laws
This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.
6 Guide to this Act
This Act prohibits the importation of illegally logged timber and the processing of illegally logged raw logs.
This Act also requires importers of regulated timber products and processors of raw logs to conduct due diligence in order to reduce the risk that illegally logged timber is imported or processed.
Importers of regulated timber products must provide declarations, at the time of import, to the Customs Minister about the due diligence that they have undertaken.
Part 4 applies the Regulatory Powers Act to enable inspectors to exercise monitoring, investigation and enforcement powers for the purposes of this Act.
7 Definitions
In this Act:
Australia, when used in a geographical sense, does not include the external Territories.
civil penalty provision has the same meaning as in the Regulatory Powers Act.
Commonwealth authority means the following:
(a) a body corporate established for a public purpose by or under an Act;
(b) a company in which a controlling interest is held by any one of the following persons, or by 2 or more of the following persons together:
(i) the Commonwealth;
(ii) a body covered by paragraph (a).
constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.
Customs Minister means the Minister administering the Customs Act 1901.
due diligence requirements:
(a) for importing regulated timber products—has the meaning given by subsection 14(1); and
(b) for processing raw logs—has the meaning given by subsection 18(1).
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.
import means import into Australia.
inspector means a person appointed under section 19.
regulated timber product has the meaning given by subsection 9(3).
Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.
Secretary means the Secretary of the Department.
this Act includes the regulations.
timber product means a thing that is, is made from, or includes, timber.
Part 2—Importing
Division 1—Importing illegally logged timber
8 Importing illegally logged timber
A person commits an offence if:
(a) the person imports a thing; and
(b) the thing is, is made from, or includes, illegally logged timber; and
(c) the thing is not prescribed as exempt by the regulations for the purposes of this paragraph.
Penalty: 5 years imprisonment or 500 penalty units, or both.
9 Importing illegally logged timber in regulated timber products
(1) A person commits an offence if:
(a) the person imports a thing; and
(b) the thing is, is made from, or includes, illegally logged timber; and
(c) the thing is a regulated timber product; and
(d) the thing is not prescribed as exempt by the regulations for the purposes of this paragraph.
Penalty: 5 years imprisonment or 500 penalty units, or both.
(2) The fault element for paragraph (1)(b) is negligence.
(3) A regulated timber product is a timber product prescribed by the regulations.
10 Forfeiture
(1) A court may order all or any part of a thing to be forfeited to the Commonwealth if:
(a) the court convicts a person of an offence against section 8 or 9 in respect of the thing or part; and
(b) the thing or part is the property of the person.
(2) The person is entitled to be heard in relation to the order.
(3) The thing or part may be dealt with or disposed of in any manner that the Secretary thinks appropriate, but only after:
(a) if the periods provided for lodging appeals against the order and the conviction have ended without such an appeal having been lodged—the end of those periods; or
(b) if one or more such appeals have been lodged—the appeals lapse or are finally determined.
11 Application of the Customs Act 1901
If:
(a) the importation of goods is an offence under section 8 or 9; and
(b) the Secretary notifies the Comptroller‑General of Customs (within the meaning of the Customs Act 1901) in writing that the Secretary wishes the Customs Act 1901 to apply to that importation;
the Customs Act 1901 has effect as if the goods included in that importation were goods described as forfeited to the Crown under section 229 of that Act because they were prohibited imports within the meaning of that Act.
Division 2—Importers’ due diligence
12 Importing regulated timber products
A person commits an offence if:
(a) the person imports a thing; and
(b) the thing is a regulated timber product; and
(c) the person does not comply with the due diligence requirements for importing the product; and
(d) the thing is not prescribed as exempt by the regulations for the purposes of this paragraph.
Penalty: 300 penalty units.
13 Customs declaration
A person commits an offence if:
(a) the person imports a thing; and
(b) the thing is a regulated timber product; and
(c) the person does not make a declaration to the Customs Minister, in the manner and form prescribed by the regulations, about the person’s compliance with the due diligence requirements for importing the product; and
(d) the thing is not prescribed as exempt by the regulations for the purposes of this paragraph.
Penalty: 100 penalty units.
14 Due diligence requirements for importing regulated timber products
(1) The regulations must prescribe due diligence requirements for importing regulated timber products.
(2) The requirements must be prescribed only for the purposes of reducing the risk that imported regulated timber products are, are made from, or include, illegally logged timber.
(3) The requirements may include requirements in relation to one or more of the following:
(a) gathering information for the purposes of assessing that risk, including in relation to the following:
(i) the kind, origin and details of harvest of timber;
(ii) the name and business addresses of, and other details about, suppliers of timber or timber products;
(iii) evidence of compliance with the laws of the country in which timber was harvested;
(iv) the completeness, accuracy or reliability of information gathered;
(b) assessing and identifying that risk;
(c) depending on the level of risk, measures to mitigate that risk;
(d) making declarations to the Customs Minister under section 13;
(e) providing statements of compliance;
(f) auditing;
(g) taking remedial action in prescribed circumstances;
(h) providing reports and other information to the Minister;
(i) publishing information.
(4) Subsection (3) does not limit subsection (2).
(5) The regulations may provide for due diligence requirements for importing regulated timber products to be satisfied, wholly or partly, by compliance with specified laws, rules or processes, including the following:
(a) laws, or processes under laws, in force in a State or Territory or another country;
(b) rules or processes established or accredited by an industry or certifying body;
(c) established operational processes.
(6) Paragraphs (5)(a) to (c) do not limit subsection (5).
Part 3—Processing
Division 1—Processing illegally logged raw logs
15 Processing illegally logged raw logs
(1) A person commits an offence if:
(a) the person processes a raw log into something other than a raw log; and
(b) the person is a constitutional corporation, or the person processes the raw log:
(i) in the course of, or for the purposes of, trade and commerce with other countries, or among the States or between a State and a Territory; or
(ii) in a Territory; or
(iii) on behalf of a constitutional corporation; or
(iv) for the purposes of supplying timber products to a constitutional corporation; or
(v) on behalf of the Commonwealth or a Commonwealth authority; or
(vi) for the purposes of supplying timber products to the Commonwealth or a Commonwealth authority; and
(c) the raw log is illegally logged; and
(d) the person is not included in a class of persons prescribed as exempt by the regulations for the purposes of this paragraph; and
(e) the process is not prescribed as exempt by the regulations for the purposes of this paragraph; and
(f) the raw log is not of a kind prescribed as exempt by the regulations for the purposes of this paragraph.
Penalty: 5 years imprisonment or 500 penalty units, or both.
Exception—imported raw logs
(2) Subsection (1) does not apply if the raw log was imported into Australia.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
16 Forfeiture
(1) A court may order all or any part of a thing to be forfeited to the Commonwealth if:
(a) the court convicts a person of an offence against section 15 in respect of the thing or part; and
(b) the thing or part is the property of the person.
(2) The person is entitled to be heard in relation to the order.
(3) The thing or part may be dealt with or disposed of in any manner that the Secretary thinks appropriate, but only after:
(a) if the periods provided for lodging appeals against the order and the conviction have ended without such an appeal having been lodged—the end of those periods; or
(b) if one or more such appeals have been lodged—the appeals lapse or are finally determined.
Division 2—Processors’ due diligence
17 Processing raw logs
(1) A person commits an offence if:
(a) the person processes a raw log into something other than a raw log; and
(b) the person is a constitutional corporation, or the person processes the raw log:
(i) in the course of, or for the purposes of, trade and commerce with other countries, or among the States or between a State and a Territory; or
(ii) in a Territory; or
(iii) on behalf of a constitutional corporation; or
(iv) for the purposes of supplying timber products to a constitutional corporation; or
(v) on behalf of the Commonwealth or a Commonwealth authority; or
(vi) for the purposes of supplying timber products to the Commonwealth or a Commonwealth authority; and
(c) the person does not comply with the due diligence requirements for processing the raw logs; and
(d) the raw log is not of a kind prescribed as exempt by the regulations for the purposes of this paragraph.
Penalty: 300 penalty units.
Exception—imported raw logs
(2) Subsection (1) does not apply if the raw log was imported into Australia.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
18 Due diligence requirements for processing raw logs
(1) The regulations must prescribe due diligence requirements for processing raw logs.
(2) The requirements must be prescribed only for the purposes of reducing the risk that illegally logged raw logs are processed.
(3) The requirements may include requirements in relation to one or more of the following:
(a) gathering information for the purposes of assessing that risk, including in relation to the following:
(i) the kind, origin and details of harvest of raw logs;
(ii) the name and business addresses of, and other details about, suppliers of raw logs;
(iii) evidence of compliance with the laws of the State or Territory in which raw logs were harvested;
(iv) the completeness, accuracy or reliability of information gathered;
(b) assessing and identifying that risk;
(c) depending on the level of risk, measures to mitigate that risk;
(d) providing statements of compliance;
(e) auditing;
(f) taking remedial action in prescribed circumstances;
(g) providing reports and other information to the Minister;
(h) publishing information.
(4) Subsection (3) does not limit subsection (2).
(5) The regulations may provide for due diligence requirements for processing raw logs to be satisfied, wholly or partly, by compliance with specified laws, rules or processes, including the following:
(a) laws, or processes under laws, in force in a State or Territory;
(b) rules or processes established or accredited by an industry or certifying body;
(c) established operational processes.
(6) Paragraphs (5)(a) to (c) do not limit subsection (5).
Part 4—Monitoring, investigation and enforcement
Division 1—Inspectors
19 Appointment of inspectors
(1) The Secretary may, in writing, appoint a person as an inspector for the purposes of this Act.
(2) The Secretary must not appoint a person as an inspector unless the Secretary is satisfied that the person has suitable training or experience to properly exercise the powers of an inspector.
(3) An inspector holds office for the period specified in the instrument of appointment. The period must not exceed 2 years.
(4) An inspector must, in exercising powers as such, comply with any directions of the Secretary.
(5) If a direction is given under subsection (4) in writing, the direction is not a legislative instrument.
Division 2—Monitoring
21 Monitoring powers
Provisions subject to monitoring
(1) A provision is subject to monitoring under Part 2 of the Regulatory Powers Act if it is:
(a) a provision of this Act; or
(b) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act.
Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether this Act has been complied with. It includes powers of entry and inspection.
Information subject to monitoring
(2) Information given in compliance or purported compliance with a provision of this Act is subject to monitoring under Part 2 of the Regulatory Powers Act.
Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.
Related provisions
(3) For the purposes of Part 2 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2), there are no related provisions.
Authorised applicant and authorised person
(4) For the purposes of Part 2 of the Regulatory Powers Act, an inspector is both an authorised applicant and an authorised person in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2).
Issuing officer
(5) For the purposes of Part 2 of the Regulatory Powers Act, each of the following persons is an issuing officer in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2):
(a) a magistrate;
(b) a Judge of a court of a State or Territory;
(c) if a Judge of the Federal Circuit and Family Court of Australia (Division 2) or a Judge of the Federal Court of Australia has consented to act as an issuing officer for the purposes of this Act and that consent is in force—the Judge.
Relevant chief executive
(6) For the purposes of Part 2 of the Regulatory Powers Act, the Secretary is the relevant chief executive in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2).
(7) The Secretary may, in writing, delegate to an SES employee, or acting SES employee, in the Department the Secretary’s powers under Part 2 of the Regulatory Powers Act in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2).
(8) A person exercising powers or functions under a delegation under subsection (6) must comply with any directions of the Secretary.
Relevant court
(9) For the purposes of Part 2 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2):
(a) the Federal Court of Australia;
(b) the Federal Circuit and Family Court of Australia (Division 2).
Additional monitoring powers
(10) For the purposes of determining:
(a) whether a provision mentioned in subsection (1) has been, or is being, complied with; or
(b) the correctness of information mentioned in subsection (2);
the additional power mentioned in subsection (11) is taken to be included in the monitoring powers under Part 2 of the Regulatory Powers Act.
(11) The additional monitoring power is the power to sample any thing at any premises entered under section 18 of the Regulatory Powers Act, as that section applies in relation to the provisions mentioned in subsection (1) or the information mentioned in subsection (2).
Person assisting
(12) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2).
Does not extend to external Territories
(13) Part 2 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2), does not extend to the external Territories.
Division 3—Investigation
22 Investigation powers
Provisions subject to investigation
(1) A provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is:
(a) an offence against this Act; or
(b) a civil penalty provision of this Act; or
(c) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act.
Note: Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.
Related provisions
(2) For the purposes of Part 3 of the Regulatory Powers Act, as that Part applies in relation to evidential material that relates to a provision mentioned in subsection (1), there are no related provisions.
Authorised applicant and authorised person
(3) For the purposes of Part 3 of the Regulatory Powers Act, an inspector is both an authorised applicant and an authorised person in relation to evidential material that relates to a provision mentioned in subsection (1).
Issuing officer
(4) For the purposes of Part 3 of the Regulatory Powers Act, each of the following persons is an issuing officer in relation to evidential material that relates to a provision mentioned in subsection (1):
(a) a magistrate;
(b) a Judge of a court of a State or Territory;
(c) if a Judge of the Federal Circuit and Family Court of Australia (Division 2) or a Judge of the Federal Court of Australia has consented to act as an issuing officer for the purposes of this Act and that consent is in force—the Judge.
Relevant chief executive
(5) For the purposes of Part 3 of the Regulatory Powers Act, the Secretary is the relevant chief executive in relation to evidential material that relates to a provision mentioned in subsection (1).
(6) The Secretary may, in writing, delegate to an SES employee, or acting SES employee, in the Department the Secretary’s powers and functions under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (1).
(7) A person exercising powers or functions under a delegation under subsection (6) must comply with any directions of the Secretary.
Relevant court
(8) For the purposes of Part 3 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to evidential material that relates to a provision mentioned in subsection (1):
(a) the Federal Court of Australia;
(b) the Federal Circuit and Family Court of Australia (Division 2).
Additional investigation power
(9) The additional power mentioned in subsection (10) is taken to be included in the investigation powers under Part 3 of the Regulatory Powers Act as that Part applies in relation to evidential material that relates to a provision mentioned in subsection (1).
(10) The additional investigation power is the power to sample any thing on premises entered under section 48 of the Regulatory Powers Act as that section applies in relation to evidential material that relates to a provision mentioned in subsection (1).
Use of force in executing a warrant
(11) In executing an investigation warrant under Part 3 of the Regulatory Powers Act, as that Part applies in relation to evidential material that relates to a provision mentioned in subsection (1):
(a) an authorised person may use such force against things as is necessary and reasonable in the circumstances; and
(b) a person assisting the authorised person may use such force against things as is necessary and reasonable in the circumstances.
Person assisting
(12) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (1).
Does not extend to external Territories
(13) Part 3 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1), does not extend to the external Territories.
Division 4—Civil penalties
23 Civil penalty provisions
Enforceable civil penalty provisions
(1) Each civil penalty provision of this Act is enforceable under Part 4 of the Regulatory Powers Act.
Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.
Authorised applicant
(2) For the purposes of Part 4 of the Regulatory Powers Act, the Secretary is an authorised applicant in relation to the civil penalty provisions of this Act.
Relevant court
(3) For the purposes of Part 4 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the civil penalty provisions of this Act:
(a) the Federal Court of Australia;
(b) the Federal Circuit and Family Court of Australia (Division 2).
Does not extend to external Territories
(4) Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act, does not extend to the external Territories.
Division 5—Infringement notices
24 Infringement notices
Provisions subject to an infringement notice
(1) The following provisions are subject to an infringement notice under Part 5 of the Regulatory Powers Act:
(a) a strict liability offence against this Act;
(b) a civil penalty provision of this Act;
(c) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act.
Infringement officer
(2) For the purposes of Part 5 of the Regulatory Powers Act, an inspector is an infringement officer in relation the provisions mentioned in subsection (1).
Relevant chief executive
(3) For the purposes of Part 5 of the Regulatory Powers Act, the Secretary is the relevant chief executive in relation to the provisions mentioned in subsection (1).
(4) The Secretary may, in writing, delegate to an SES employee, or acting SES employee, in the Department the Secretary’s powers and functions as the relevant chief executive in relation to the provisions mentioned in subsection (1).
(5) A person exercising powers or functions under a delegation under subsection (4) must comply with any directions of the Secretary.
Does not extend to external Territories
(6) Part 5 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1), does not extend to the external Territories.
Part 5—Miscellaneous
83 Publishing reports
(1) The Secretary may publish reports about the operation of this Act.
(2) Subsection (1) does not require or authorise the disclosure of information for the purposes of the Privacy Act 1988.
84 Review of operation of Act
(1) The Minister must cause a review to be undertaken of the first 5 years of the operation of this Act.
(2) The persons undertaking the review must give the Minister a written report of the review within 12 months after the end of the 5 year period.
(3) The Minister must cause a copy of the report of the review to be laid before each House of the Parliament within 15 sitting days of that House after its receipt by the Minister.
85 Delegation by Secretary
(1) The Secretary may, in writing, delegate the Secretary’s powers and functions under this Act to an SES employee, or acting SES employee, in the Department.
(2) A person exercising powers or functions under a delegation under subsection (1) must comply with any directions of the Secretary.
86 Regulations
(1) The Governor‑General may make regulations prescribing matters:
(a) required or permitted to be prescribed by this Act; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) Without limiting subsection (1), the regulations may:
(a) prescribe fees in respect of any matter under this Act; and
(b) prescribe penalties not exceeding 50 penalty units in respect of offences against the regulations; and
(c) declare that specified provisions of the regulations are civil penalty provisions, and prescribe penalties for contraventions of such provisions that do not exceed:
(i) for a body corporate—100 penalty units; or
(ii) in any other case—100 penalty units; and
(d) provide for review by the Administrative Review Tribunal of decisions made under this Act.
