The Albanese government was so worried a court case could halt native forest logging in northern New South Wales that it drew up plans to essentially sidestep federal environment laws in the event of a loss, documents released under freedom of information laws (FoI) reveal.
The prime minister, Anthony Albanese, played a key role as the commonwealth and NSW governments worked to ensure some logging could continue in the face of any "adverse decision" and to manage a potentially volatile situation between loggers and environmentalists.
In the end, the planning wasn't needed because the government won the case.
Justice Melissa Perry ruled in the federal court in 2024 that the north-east regional forest agreement (RFA) was legitimate, despite the fact it was amended in 2018 without fresh scientific studies regarding the impact on threatened species.
The initial 20-year RFA between the commonwealth and the state of NSW commenced in 2000. Shortly before it was due to expire, it was varied and extended for at least a further 20 years.
The North East Forest Alliance conservation group challenged the 2018 north-east RFA on the grounds it was not a "regional forest agreement" within the meaning of the RFA Act and therefore neither the Environment Protection and Biodiversity Conservation (EPBC) Act nor the RFA Act applied "to exempt forestry operations ... from the approval processes".
The alliance argued the new agreement didn't properly assess "environmental values" including old growth, wilderness, endangered species and world heritage values, along with "principles of ecologically sustainable management".
If the federal and state governments had lost the court case, there could have been an immediate halt to logging in northern NSW forests and lengthy processes to assess areas one by one under the commonwealth's environment laws.
The Albanese government was concerned such a decision could lead to environmentalists demanding an end to logging. The prime minister wrote to his environment and agriculture ministers in 2023 seeking updates on how to deal with any forestry shutdown, the FoI documents show.
Forestry Corp of NSW and other private forest owners would have been forced to put in approximately 1,700 applications to show their activities were consistent with federal environment laws. That process would have taken months.
In July 2023, the then environment minister, Tanya Plibersek, and then agriculture minister, Murray Watt, wrote to Albanese stating: "Thank you for your correspondence dated 23 May 2023, regarding forest management and seeking advice on strategy and preparedness to manage the impacts on communities if the federal court finds ... that the north-east regional forest agreement as varied in 2018 is not a regional forest agreement for the purposes of the ... Act."
The ministers, in their letter, said: "While we await judgment, our departments have been working closely with the NSW government to consider implications for forestry operations in north-east NSW and options for government to prepare for and manage potential impacts of an adverse decision."
A separate ministerial briefing note to Plibersek in November 2023 states: "This area is highly biologically diverse, supporting approximately 300 threatened species and approximately 22 endangered or critically endangered ecological communities listed as matters of national environmental significance under the Environment Protection and Biodiversity Conservation Act. Listed threatened species in the region include species that attract public attention and focus such as the Greater Glider, Swift Parrot and Koala."
The federal department of environment warned that the number of assessments needed if they lost the court case would be "extremely high" and officers would need to be transferred from other sections to handle the workload.
There would also be political and economic fallout for the government, the department warned in the briefing.
"Given the time required to complete environmental approval processes, we expect there will be sustained pressure over many months after the judgment to provide support to both the larger public and smaller private operators."
The environment law requirements would be seen as a barrier to the resumption of logging operations and could lead to calls for an industry transition package, the department said.
One memo noted that the Victorian government had paid out $875m in industry support to close down its native timber industry.
Bureaucrats also advised that 60% of NSW's high-grade sawlogs were coming from north-east forests and that this could leave NSW with a timber shortage.
Another memo, also dated November 2023, explored several alternatives to keep the industry operating and effectively sidestep federal environment laws.
The details were heavily redacted but included giving the state power to authorise logging under a special bilateral agreement between the federal government and NSW.
A national interest exemption under the federal environment laws was also considered. This would have involved Forestry Corp applying to the federal environment minister and was seen as a possible short-term solution.
Fast-track assessments were considered for Forestry Corp. This would still have taken six to nine months and there were concerns Forestry Corp lacked the scientific information about threatened species needed to quickly apply.
There was also a suggestion Forestry Corp could "self-assess" to determine any impacts of national environmental significance.
The department was warned, however, that it could expect to receive complaints from environmentalists that Forestry Corp's activities were already breaching federal law.
The Australian Conservation Foundation said the FoI documents showed that if the carve-out for native forest logging from federal environmental laws was to end, the environment department was prepared.
"For the sake of Australia's much-loved wildlife, we need to move to a post-RFA world,"
the foundation's national biodiversity policy officer, Brendan Sydes, said.
"The environment minister, Murray Watt, should bring native forest logging under the national nature law as part of the reforms of the EPBC Act he's promised to introduce into parliament early next year.
"Failing to close the native forest logging loophole will mean threatened species like koalas and greater gliders continue to get pushed closer to extinction."