This instrument is the Export Control (Wood and Woodchips) Rules 2021.

1‑2 Commencement

(1) Each provision of this instrument 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
Provisions	Commencement	Date/Details
1. The whole of this instrument	At the same time as section 3 of the Export Control Act 2020 commences.	3 am (A.C.T.) 28 March 2021

Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

(2) Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

1‑3 Authority

This instrument is made under the Export Control Act 2020.

1‑4 Application of this instrument

This instrument does not limit the operation of a provision of the Export Control (Plants and Plant Products) Rules 2021 that applies in relation to goods that are prescribed goods under section 2‑1 of this instrument.

Note 1: Prescribed wood or woodchips (for example, wood in the round) may be a prescribed plant product under the Export Control (Plants and Plant Products) Rules 2021. The export of the wood would be subject to the prescribed export conditions for that product under that instrument in addition to any requirement for the exporter to hold a wood export licence to export the wood under this instrument.

Note 2: Wood or woodchips that are taken not to be prescribed wood or woodchips under section 2‑2 of this instrument may still be a prescribed plant product under the Export Control (Plants and Plant Products) Rules 2021. The export of the wood or woodchips would be subject to the prescribed export conditions for that product under that instrument.

1‑5 Simplified outline of this instrument

General

This instrument prescribes matters and makes other provision in relation to certain wood and woodchips (prescribed wood and woodchips) for the purposes of the Export Control Act 2020 (the Act).

Prescribed wood or woodchips must not be exported from Australian territory unless the conditions prescribed by this instrument (prescribed export conditions) are complied with. A person may commit an offence or be liable to a civil penalty if prescribed wood or woodchips are exported in contravention of prescribed export conditions (see Division 4 of Part 1 of Chapter 2 of the Act).

This instrument prescribes other matters and makes other provision in relation to the export of wood and woodchips, including in relation to the following:

(a) government certificates;

(b) State codes of practice;

(d) records.

Structure of this instrument and Chapter numbering

This instrument is arranged in Chapters that have the same number and name as the corresponding Chapters in the Act. For example, the provisions of this instrument that are made for the purposes of Chapter 2—Exporting goods of the Act are included in Chapter 2—Exporting goods of this instrument. This means there are gaps in the Chapter numbering because there are no provisions for the purposes of some Chapters of the Act.

Part 2—Interpretation

1‑6 Definitions

Note: A number of expressions used in this instrument are defined in the Act, including the following:

(a) Australian law;

(b) Australian territory;

(d) export licence;

(e) export operations;

(f) Regulatory Powers Act.

In this instrument:

Act means the Export Control Act 2020, and includes:

(a) legislative instruments made under the Export Control Act 2020; and

(b) the Regulatory Powers Act as it applies in relation to the Export Control Act 2020.

approved code of practice, for a State, means:

(a) a code of practice approved for that State under subsection 2‑7(1); or

(b) an amended code of practice for that State approved under subsection 2‑9(2) or 2‑10(2), or taken to be approved under subsection 2‑11(2).

biodiversity has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999.

code of practice, for a State, means the practices adopted in that State for the establishment, management and harvesting of all plantations in that State, whether or not those practices are contained in a single document.

Commonwealth Heritage place has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999.

consignment, of wood or woodchips, means a quantity of wood or woodchips assembled at the same place and intended for export at the same time to the same country.

declared Ramsar wetland has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999.

declared World Heritage property has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999.

designated place means any of the following:

(a) a place with indigenous heritage values;

(b) a declared World Heritage property;

(d) a National Heritage place;

(e) a Commonwealth Heritage place;

(f) an area where the biodiversity of a forest is protected by an Australian law.

exporter of prescribed wood or woodchips means:

(a) the applicant for a wood export licence for the wood or woodchips; or

(b) if a wood export licence has been issued for the wood or woodchips—the holder of the export licence.

indigenous heritage value of a place has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999.

management arrangement has the meaning given by section 1‑7.

National Heritage place has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999.

national plantation principles means the document titled Forest Practices Related to Wood Production in Plantations: National Principles, prepared by the Ministerial Council of Forestry, Fisheries and Aquaculture, published in March 1996, as that document exists at the commencement of this instrument.

Note: The document could in 2021 be viewed on the Department’s website (http://www.awe.gov.au).

non‑prescribed wood or woodchips means wood or woodchips that are not prescribed goods under Division 1 of Part 1 of Chapter 2.

plantation means an intensively managed stand of trees of either Australian native or exotic species that is created by the regular placement of seedlings or seed.

prescribed wood and woodchips means wood and woodchips that are prescribed goods under Division 1 of Part 1 of Chapter 2.

prescribed wood or woodchips means wood or woodchips that are prescribed goods under Division 1 of Part 1 of Chapter 2.

State includes the Australian Capital Territory and the Northern Territory.

wood export licence means an export licence granted to a person to carry out export operations in relation to prescribed wood or woodchips.

1‑7 Meaning of management arrangement

(1) A management arrangement is:

(a) a law of a State; or

(b) a code of practice, management plan or other instrument that:

(i) is made by a State body; and

(ii) regulates forestry operations in that State;

to the extent that the law, code of practice, management plan or other instrument relates to the protection of one or more designated places or the protection of the environment.

Note: Examples of protection of the environment are protection of old growth forests, wilderness or endangered species.

(2) In this section:

forestry operations has the meaning given by subsection 40(2) of the Environment Protection and Biodiversity Conservation Act 1999.

Chapter 2—Exporting goods

Part 1—Goods

Division 1—Prescribed goods

2‑1 Wood and woodchips that are prescribed goods

(1) For the purposes of subsection 28(1) of the Act and subject to subsection (2) of this section, the following goods are prescribed for the purposes of the Act:

(a) woodchips;

(b) wood in the round;

(2) Wood or woodchips are not prescribed for the purposes of subsection 28(1) of the Act if the wood or woodchips are derived from trees sourced from a plantation in a State for which there is an approved code of practice.

Note: Processed and unprocessed wood (including woodchips) sourced from a region covered by a Regional Forest Agreement within the meaning of the Regional Forest Agreements Act 2002 (not including wood sourced from a plantation in a State unless there is an approved code of practice for that State) is non‑prescribed goods (see subsection 6(1) of the Regional Forest Agreements Act 2002, the definition of RFA wood in section 4 of that Act and the definition of non‑prescribed goods in section 12 of the Export Control Act 2020).

2‑2 Wood and woodchips that are taken not to be prescribed goods

For the purposes of subsection 28(4) of the Act, wood and woodchips covered by subsection 2‑1(1) of this instrument are taken not to be prescribed wood or woodchips if the wood or woodchips are to be exported:

(a) in a consignment of not more than 2 tonnes; or

(b) in a consignment that includes not more than 2 tonnes of wood or woodchips.

Division 2—Prohibited export and prescribed export conditions

2‑3 Purpose and application of this Division

(1) This Division is made for the purposes of section 29 of the Act.

(2) This Division applies in relation to prescribed wood and woodchips.

Note 1: See Division 1 of this Part in relation to goods that are prescribed wood and woodchips.

Note 2: Wood and woodchips are taken not to be prescribed wood or woodchips in the circumstances prescribed by section 2‑2 of this instrument (see the definition of prescribed goods in section 12 of the Act).

2‑4 Export of prescribed wood or woodchips is prohibited unless prescribed conditions are complied with

The export from Australian territory of prescribed wood or woodchips is prohibited unless:

(a) the exporter of the prescribed wood or woodchips holds a wood export licence to carry out operations to export the wood or woodchips; and

(b) the wood export licence is in force and not suspended at the time the wood or woodchips are exported.

Note 1: Other conditions will apply in addition to the conditions in this section if the prescribed wood or woodchips are a prescribed plant product under the Export Control (Plants and Plant Products) Rules 2021. The export of the wood or woodchips would also be subject to export conditions prescribed by that instrument.

Note 2: A person may commit an offence or be liable to a civil penalty if prescribed goods are exported in contravention of a prescribed export condition (see Division 4 of Part 1 of Chapter 2 of the Act).

Note 3: A person may commit an offence or be liable to a civil penalty if export operations covered by a wood export licence are carried out after the licence has been revoked (see section 215 of the Act).

Part 2—Government certificates

2‑5 Government certificate may be issued in relation to wood or woodchips

For the purposes of subsections 62(1) and (2) of the Act, a government certificate may be issued in relation to wood or woodchips that are to be, or that have been, exported.

Note 1: Grounds for the issuing body to refuse to issue a government certificate in relation to wood or woodchips are provided by paragraphs 67(3)(a) to (f) of the Act.

Note 2: An exporter who applies for a government certificate in relation to wood or woodchips must retain certain records for at least 5 years (see section 11‑4 of this instrument).

Part 3—State codes of practice

2‑6 State may request approval of code of practice

A State may request the Minister, in writing, to approve a code of practice for the State.

2‑7 Approval of code of practice

(1) If the Minister receives a request from a State under section 2‑6, the Minister may, by notifiable instrument, approve the code of practice to which the request relates.

(2) The Minister may approve a code of practice for a State under subsection (1) only if subsection (3) or (4) applies.

(3) This subsection applies if the Minister is satisfied that the code of practice for the State would satisfactorily protect environmental and heritage values in the State.

(4) This subsection applies if:

(a) the Minister is satisfied that the code of practice for the State would substantially protect environmental and heritage values in the State; and

(b) the State enters into a written agreement with the Commonwealth to:

(i) by a date specified in the agreement, amend the code of practice to ensure that it would satisfactorily protect those values; and

(ii) advise the Commonwealth, in writing, when the amendments have been made.

(5) For the purposes of subsection (3) or (4), in considering whether a code of practice for a State would satisfactorily or substantially protect environmental and heritage values in the State, the Minister must have regard to the findings of a scientific assessment of the code of practice prepared under the direction of the Secretary and based on the national plantation principles.

Note: In exercising a power under this Part, preference must not be given to one State, or part of a State, over another State or part of another State (see section 99 of the Constitution).

2‑8 Approval must state date of effect

The instrument of approval of a code of practice for a State under subsection 2‑7(1) must state the date of commencement of the approval.

2‑9 Approval of amendments (other than minor amendments) of approved code of practice

(1) If a State wishes to amend an approved code of practice for the State (other than by making minor amendments covered by section 2‑11), the State must request the Minister, in writing, to approve the code of practice as amended.

(2) The Minister may, by notifiable instrument, approve the code of practice for the State as amended only if subsection 2‑7(3) or (4) applies to the code of practice as amended.

2‑10 Minister may require amendment of code of practice

(1) The Minister may, by written notice, require a State to amend an approved code of practice for the State.

(2) If the Minister is satisfied that the State has amended the code of practice as required under subsection (1), the Minister must, by notifiable instrument, approve the code of practice as amended.

2‑11 State may make minor amendment of approved code of practice

(1) A State may make a minor amendment of an approved code of practice for the State.

(2) If a State makes a minor amendment of an approved code of practice for the State:

(a) the State must give a copy of the code of practice as amended to the Secretary; and

(b) the code of practice as amended is taken to be approved by the Minister.

(3) For the purposes of this section, a minor amendment of an approved code of practice for a State is an amendment that does not change the substance of the code of practice.

Examples: Minor corrections to improve technical effectiveness, omission of redundant provisions, corrections of typographical errors, amendments to update references to a law.

2‑12 Minister may revoke approval of code of practice

(1) The Minister may, by notifiable instrument, revoke the approval of a code of practice for a State if the Minister reasonably believes that the code of practice does not, or will not, satisfactorily protect environmental and heritage values in the State.

(2) For the purposes of subsection (1), in considering whether a code of practice for a State does not, or will not, satisfactorily protect environmental and heritage values in the State, the Minister must have regard to the findings of a scientific assessment of the code of practice prepared under the direction of the Secretary and based on the national plantation principles.

(3) The Minister must not revoke the approval of a code of practice for a State under subsection (1) unless the Minister has given a written notice to the State in accordance with subsection (4).

(4) A notice under subsection (3) must state that the Minister may revoke the approval of the code of practice on a specified date (which must be within a reasonable period after the notice is given), unless the State, by that date, amends the code of practice to ensure that it satisfactorily protects environmental and heritage values in the State.

2‑13 Publication of approved code of practice

The Secretary must ensure that an up‑to‑date copy of an approved code of practice for a State is published on the Department’s website.

Chapter 6—Wood export licences

Part 1—Requirements for grant of wood export licence

6‑1 Other requirements for grant of wood export licence

(1) For the purposes of paragraph 191(2)(d) of the Act, this section prescribes other requirements that must be met for the grant of a wood export licence.

Note: The requirements provided by paragraphs 191(2)(b) and (c) of the Act must also be met.

Applicant must make declaration

(2) The applicant must make a declaration:

(a) stating that the applicant has complied, and will continue to comply, with the applicable requirements of the following in relation to the export operations and prescribed wood or woodchips to be covered by the licence:

(i) the Environment Protection and Biodiversity Conservation Act 1999;

(ii) each management arrangement (if any) that applies to the export operations and prescribed wood or woodchips to be covered by the licence; and

(b) identifying the designated places (if any):

(i) where export operations to be covered by the licence are to be carried out; or

(ii) that would be adversely affected by those operations; and

(c) if a designated place referred to in paragraph (b) is identified—setting out the measures (if any) that the applicant undertakes to take to protect the designated place.

Form of declaration etc.

(3) A declaration under subsection (2):

(a) must be in a form approved by the Secretary; and

(b) must be based on the knowledge of the applicant after making reasonable inquiries into the matters declared; and

(d) must be signed and dated by the applicant.

Note: A person may commit an offence or be liable to a civil penalty if the person provides false or misleading information or documents (see sections 137.1 and 137.2 of the Criminal Code and sections 368 and 369 of the Act).

Protection of designated places

(4) The requirements of the Environment Protection and Biodiversity Conservation Act 1999 that apply to the export operations and prescribed wood or woodchips to be covered by the licence, together with:

(a) each management arrangement (if any) that applies to the export operations and prescribed wood or woodchips to be covered by the licence; and

(b) if the declaration made by the applicant under subsection (2) includes an undertaking to take measures to protect a designated place where export operations to be covered by the licence are to be carried out or that would be adversely affected by those operations—those measures;

must satisfactorily protect the designated place.

(5) In considering whether the requirement referred to in subsection (4) is met, the Secretary must have regard to:

(a) the declaration made by the applicant under subsection (2); and

(b) any information reasonably available to the Secretary in relation to the following:

(i) the applicant’s history of compliance with the requirements of the Environment Protection and Biodiversity Conservation Act 1999;

(ii) the applicant’s history of compliance with any management arrangement that applies to the export operations and prescribed wood or woodchips to be covered by the licence;

(iii) each designated place (if any) where export operations to be covered by the licence are to be carried out or that would be adversely affected by those export operations;

(iv) the economic benefits arising from the export operations to be covered by the licence;

(v) the impacts, including future impacts, of the export operations to be covered by the licence on local communities.

Part 2—Conditions of wood export licence

6‑2 Conditions of wood export licence

(1) For the purposes of paragraph 192(1)(b) of the Act, this section prescribes a condition of a wood export licence if the declaration required under subsection 6‑1(2) of this instrument in relation to the application for the licence included an undertaking to take measures to protect the designated places where export operations covered by the licence are to be carried out or that would be adversely affected by those operations.

(2) The holder of the wood export licence must comply with the undertaking.

Note 1: The wood export licence is also subject to:

(a) the conditions (if any) specified in the licence under paragraph 192(1)(c) of the Act; and

(b) the condition that the holder of the licence must comply with any directions given from time to time to the holder under section 222 of the Act (see subsection 222(4) of the Act).

Note 2: The holder of the wood export licence may commit an offence or be liable to a civil penalty if a condition of the licence is contravened (see section 217 of the Act).

Part 3—Matters relating to applications

6‑3 Application of this Part

This Part applies in relation to the following applications:

(a) an application under section 190 of the Act for a wood export licence;

(b) an application under section 199 of the Act to vary:

(i) a wood export licence; or

(ii) the conditions of a wood export licence.

6‑4 Initial consideration period

For the purposes of subsection 379(3) of the Act, the initial consideration period for an application is 30 days.

Note: The consideration period for an application starts on the day after the day the Secretary receives the application (see subsection 379(4) of the Act).

6‑5 Period within which request relating to application must be complied with

For the purposes of paragraph 379(10)(b) of the Act, the period of 6 months is prescribed.

Chapter 10—Compliance and enforcement

10‑1 Samples taken in exercising monitoring or investigation powers

If a sample is taken as permitted by paragraph 327(2)(a) of the Act (additional monitoring power) or subsection 330(2) of the Act (additional investigation power), the sample must be:

(a) identified with a mark or a tag; and

(b) kept in the custody or control of an authorised officer until whichever of the following first occurs:

(i) the sample is destroyed during testing or analysis in accordance with section 412 of the Act;

(ii) the sample is given to an analyst appointed under section 413 of the Act;

(iii) the sample is otherwise disposed of.

10‑2 Dealing with things seized in exercising investigation powers

(1) This section applies if:

(a) premises where export operations are being, or have been, carried out in relation to prescribed wood or woodchips have been entered under an investigation warrant; and

(b) a thing was seized under the warrant.

(2) The thing must be:

(a) identified with a mark or a tag; and

(b) kept in the custody or control of an authorised officer until whichever of the following first occurs:

(i) the thing is destroyed or otherwise disposed of in accordance with section 418 of the Act;

(ii) the thing is returned in accordance with subsection 66(4) of the Regulatory Powers Act;

(iii) the thing is disposed of in accordance with section 68 of that Act.

Chapter 11—Miscellaneous

Part 1—Records

11‑1 Purpose of this Part

For the purposes of subsections 408(1) and (2) of the Act, this Part makes provision for and in relation to the retention of records in relation to prescribed wood or woodchips.

Note: A person may commit an offence of strict liability if the person is required to retain a record in accordance with a provision of this Part and the person fails to comply with the requirement (see subsection 408(3) of the Act).

11‑2 General requirements for records

(1) A record that is required to be retained under this Part in relation to wood or woodchips must be:

(a) in English; and

(b) if the record was required to be in another language to meet importing country requirements—in that other language; and

(d) accurate, legible and able to be audited.

(2) If a person is required to retain a document under this Part, the person is taken to have complied with the requirement if:

(a) the person is required, under a law of the Commonwealth or a State or in accordance with ordinary commercial practice, to give the document to another person; and

(b) the person gives the document to the other person as required; and

11‑3 Government certificates must be retained in secure place

(1) A person to whom a government certificate in relation to wood or woodchips is issued under the Act must retain the certificate in a secure place when it is not being used.

(2) Subsection (1) does not apply in relation to a government certificate that was issued by electronic means.

11‑4 Records to be retained by exporter

(1) An exporter of prescribed wood or woodchips must retain the following records:

(a) each application by the exporter for a government certificate in relation to prescribed wood or woodchips;

(b) each other document:

(i) that is made by the exporter or that comes into the exporter’s possession; and

(ii) that is relevant to showing whether the exporter has complied, or is complying, with the applicable requirements of the Act in relation to the export of prescribed wood or woodchips.

(2) An exporter to whom a government certificate in relation to non‑prescribed wood or woodchips is issued under the Act must retain the following records:

(a) the application by the exporter for the government certificate;

(b) each other document:

(i) that is made by the exporter or that comes into the exporter’s possession; and

(ii) that is relevant to showing whether the person has complied, or is complying, with the applicable requirements of the Act in relation to the non‑prescribed wood or woodchips in relation to which the government certificate was issued.

(3) An exporter must retain each record referred to in subsection (1) or (2) for at least 5 years starting on the day the record is made by the exporter or comes into the exporter’s possession (as the case may be).

11‑5 Records must not be altered or defaced during retention period

(1) A record that is retained as required under this Part must not be altered or defaced during the period (the retention period) in which it is required to be retained.

(2) However, subsection (1) does not prevent notations or markings being made on the record in accordance with ordinary practice.

(3) If the record (the original record) is altered or defaced during the retention period, the person who is required to retain the original record must also retain, during the retention period, each document:

(a) that the person creates or that comes into the person’s possession; and

(b) that shows how the original record was altered or defaced.

Part 2—Relevant Commonwealth liabilities

11‑6 Circumstances in which relevant Commonwealth liability of a person is taken to have been paid

Purpose of this section

(1) For the purposes of section 431 of the Act, this section prescribes circumstances in which a relevant Commonwealth liability of a person is taken to have been paid for the purposes of either of the following provisions of the Act (a relevant provision):

(a) paragraph 191(2)(b) (grant of export licence);

(b) paragraph 199(3)(a) (variation of export licence).

Note: For relevant Commonwealth liability, see section 12 of the Act.

Payment undertaking may be given

(2) A relevant Commonwealth liability of a person is taken to have been paid for the purposes of a relevant provision if:

(a) the person, or another person, has given a written undertaking (a payment undertaking) to the Secretary to pay the amount of the relevant Commonwealth liability; and

(b) the payment undertaking includes a term that the relevant Commonwealth liability is to be reduced by each amount paid in accordance with the undertaking; and

(i) the financial position of the person who gave the payment undertaking;

(ii) the nature and likely cost of the export operations to which a decision under the relevant provision relates;

(iii) whether the person who gave the payment undertaking will be able to comply with the undertaking and, if applicable, meet the cost of the export operations referred to in subparagraph (ii);

(iv) any other relevant considerations.

(3) A payment undertaking may be given by a person in relation to:

(a) a relevant Commonwealth liability of the person; or

(b) a relevant Commonwealth liability of another person.

Payment undertaking may relate to 2 or more relevant Commonwealth liabilities

(4) A single payment undertaking may relate to 2 or more relevant Commonwealth liabilities.

(5) If:

(a) a payment undertaking relates to 2 or more relevant Commonwealth liabilities; or

(b) a person has given 2 or more payment undertakings in relation to different relevant Commonwealth liabilities of the person or of another person;

the Secretary may determine the order in which payments are to be applied to reduce the outstanding relevant Commonwealth liabilities.

Variation of payment undertaking

(6) A payment undertaking may be varied at any time by agreement between the Secretary and the person who gave the undertaking.

(7) The Secretary may agree to a variation of a payment undertaking if:

(a) having considered the matters referred to in paragraph (2)(c), the Secretary considers the variation is appropriate; and

(b) the variation does not reduce the amount of any relevant Commonwealth liability covered by the undertaking that has not been paid.

Chapter 12—Transitional provisions

12‑1 State codes of practice

(1) This section applies in relation to a code of practice for a State, within the meaning of the Export Control (Unprocessed Wood) Regulations (as in force immediately before the commencement time), if:

(a) the Minister had approved the code of practice under regulation 4B of those Regulations; and

(b) the approval was in force immediately before the commencement time.

(2) The approval of the code of practice continues in force as if it had been given under subsection 2‑7(1) of this instrument.

(3) In this section:

commencement time means the time when section 3 of the Export Control Act 2020 commences.