Year

2003

Degree Name

Doctor of Philosophy

Department

Centre for Natural Resources Law and Policy - Faculty of Law

Abstract

This thesis examines the regulation of private native forestry in two Australian jurisdictions: NSW and Tasmania. Private forests have long been the forgotten forests - a neglected aspect of forest policy in Australia. Appropriate supervision of private native forestry (PNF) is important because private forests are home to much threatened biodiversity, and as they make up a significant proportion of the total area of native forests in NSW. PNF also makes a substantial contribution to total timber production in NSW. Research was conducted into the administration of environmental laws applying to PNF in NSW between 1997-2002 in order to assess the regulatory framework and to discern patterns of administrative behaviour. The thesis asked “Were NSW environmental laws applying to PNF effectively implemented and enforced?” The hypothesis that much PNF in NSW is “under-regulated” in practice was explored. To examine these questions, a thorough review of all relevant legislative provisions and case law was conducted. The Native Vegetation Conservation Act 1997 and the Threatened Species Conservation Act 1995 and their implementation in relation to PNF were examined in particular. Defects in the legislative framework applying during the study period were revealed. The applicable law was found to be complex, and highly fragmented, with responsibility spread across many agencies. Over 100 interviews with agency staff at head office and regional offices were undertaken. Other information was obtained from internal documents and through requests under the Freedom of Information Act. The broader context was addressed by reviewing theoretical literature in environmental law, with an emphasis on the regulatory theory literature. Some regulatory failures stemmed from inadequate implementation of the legislation. It was found that PNF was infrequently regulated under the Native Vegetation Conservation Act, primarily due to a problematic exemption for specified types of PNF. In the North Coast and Hunter regions the exemption was claimed by 100% of PNF operations (on land tenures where it was available). PNF was found to be infrequently regulated by local government under Local Environment Plans (64.5% of 107 local governments did not regulate PNF in the main rural zone). The safety net mechanism of licensing under the Threatened Species Conservation Act was infrequently applied with only five licences granted for PNF. Regarding law enforcement, a low level of prosecution activity was found to have taken place. The findings support the proposition that in practice NSW law was inadequate to ensure ecologically sustainable forest management, due to the poorly designed and integrated statutory framework. They also provide some evidence to support the proposition that the applicable laws were generally implemented with a light touch, generally expressing a laissez faire approach to PNF in most regions (with some exceptions). These findings suggest there is a pressing need for reform of the regulatory framework in NSW, if standards of ESFM are to be achieved. Thus any future exemptions must be of narrow application. Further, a more pro-active approach to ensuring compliance with legislative requirements is necessary. While the results suggest regulatory failure, they do not constitute grounds for wholesale replacement of regulation with other mechanisms such as self-regulation and incentives payments. Issues of compliance and enforcement as well as adequacy of funding are crucial to choices of policy instrument for biodiversity conservation on private land.

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