Challenge to Tasmania's Regional Forest Agreement heard in Federal Court

Earlier this year the Bob Brown Foundation decided to challenge the validity of the Tasmania's Regional Forest Agreement, claiming it was not entirely legally enforceable as it should be.

The second claim against its legitimacy related to a 2017 amendment to the act which meant the Tasmanian Government could change policies and practices under its RFA without approval from the federal government.

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Ron Merkel, appearing for the Bob Brown Foundation, said this meant the state's RFA was inconsistent with the fundamental aspects of the act dealing with the Australian environment, the country's reputation for exported wood products, and effect forest and ecological management systems.

Mr Merkel quoted a second reading speech from Senator Paul Calvert on the 2002 act in which he said both governments were to be held accountable over each of Australia's 10 RFAs.

"There are clear state government processes that the Commonwealth has accredited in the RFAs for ecologically sustainable forest management-including legislation, policies, codes and practices," Senator Calvert said at the time.

Mr Merkel said these words were significant.

"That accreditation was replaced by unilateral discretion on the part of Tasmania to deal with those matters from time to time as part of a suite of policies," he said.

"That's one of the reasons that we say it is a fundamentally different RFA from 2017 onwards."

Mr Merkel argued management of reserve systems and ecological management of forests were not legally binding under Tasmania's RFA.

Tasmanian Solicitor-General Michael O'Farrell said clauses within the Tasmanian RFA showed there had to be a commitment to continuous improvement of the system.

"The underlying premise in my learned friend's that everything that occurs to the detriment of the system is simply not correct," he said.

Mr O'Farrell said as with other intergovernmental agreements, the RFA included both legally enforceable and non-legally enforceable obligations.

Shaun McElwaine, who appeared for Sustainable Timber Tasmania, said Mr Merkel had cherrypicked from the act's explanatory memorandum and second reading speech to mount an argument over the lack of legal enforceability of the RFA.