Forestry Amendment (Miscellaneous) Act 1999

Forestry Amendment (Miscellaneous) Act 1999

An Act to amend the Forestry Act 1920

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1.   Short title

This Act may be cited as the Forestry Amendment (Miscellaneous) Act 1999 .

2.   Commencement

This Act commences on a day to be proclaimed.

3.   Principal Act

In this Act, the Forestry Act 1920 is referred to as the Principal Act.

4.    Section 4 amended (Interpretation)

Section 4(1) of the Principal Act is amended as follows:

(a) by omitting the definition of agistment licence ;

(b) by omitting the definition of apiary permit ;

(c) by omitting the definitions of contract and contract of sale ;

(d) by omitting the definition of forest lease ;

(e) by omitting the definition of forest officer ;

(f) by omitting the definition of forest permit ;

(g) by inserting the following definition after the definition of Forest Practices Code :

forest produce or forest product means any of the following:

(a) vegetable growth that is on or from State forest;

(b) a product of a growing or dead tree, shrub, timber or other vegetable growth that is on or from State forest;

(c) sand, gravel, clay, loam or stone that is on or from State forest and used for forestry purposes, either inside or outside State forest;

(h) by omitting the definitions of forest produce and forest produce licence ;

(i) by omitting the definitions of licence , miner's right , mining operations , mining right and mining tenement ;

(j) by omitting the definitions of occupation permit and permit ;

(k) by omitting the definition of purchaser ;

(l) by omitting the definition of relevant day ;

(m) by omitting the definition of stock ;

(n) by omitting " section 12U " from the definition of timber classification officer and substituting " section 23 ";

(o) by omitting the definition of warden's court .

5.    Section 4C amended (Exemption of statutory instruments from Rules Publication Act 1953 )

Section 4C(b) of the Principal Act is amended by omitting ", 34 (4) , 58 (1) ".

6.    Section 6 amended (The Forestry corporation)

Section 6 of the Principal Act is amended by inserting after subsection (1) the following subsection:

(2)  The corporation has the legal capacity of a natural person.

7.    Section 8 amended (Functions of corporation)

Section 8(1)(c) of the Principal Act is amended as follows:

(a) by omitting from subparagraph (i) "and, if the Director-General of Lands consents, forests on other Crown land";

(b) by omitting from subparagraph (ii) "and, if the Director-General of Lands consents, on other Crown land";

(c) by omitting from subparagraph (iii) "and, if the Director-General of Lands consents, on other Crown land".

8.    Section 12A amended (Other limitations on functions and powers)

Section 12A of the Principal Act is amended by omitting subsection (3) .

9.    Part II, Division 6 repealed

Division 6 of Part II of the Principal Act is repealed.

10.    Section 17 amended (Register of Multiple Use Forest Land)

Section 17(5) of the Principal Act is amended by omitting paragraph (b) and substituting the following paragraph:

(b) the corporation has –

(i) in a case to which paragraph (a) applies  – not less than 14 days after the publication of the newspaper notice; or

(ii) in any other case – at any time before the issue of the certificate –

caused a draft of the proclamation and advice on the effect the making of the proclamation is likely to have on the annual supply of veneer and sawlog to be laid on the table of each House of Parliament; and

11.    Section 20B amended (Public access to State forest)

Section 20B of the Principal Act is amended as follows:

(a) by omitting subparagraph (iv) from subsection (2)(a) ;

(b) by inserting the following subsection after subsection (3) :

(4)  In any proceedings where it is necessary to prove that a person did not have a right to enter or remain in a particular area of State forest at a particular time, a certificate in writing purporting to be signed by the chief executive officer stating that the corporation had closed that area of State forest to that person at that time is admissible as evidence of the matters stated in the certificate.

12.    Section 21 repealed

Section 21 of the Principal Act is repealed.

13.    Parts IV , V , VI , VII and VIII substituted

Parts IV , V , VI , VII and VIII of the Principal Act are repealed and the following Part is substituted:

PART IV - Miscellaneous

Division 1 - Forest produce and processing

23.   Timber classification officers

(1)  The corporation may appoint any of its employees, any person employed by a body corporate involved in the forest industry or any other person whom it regards as being suitably qualified to be a timber classification officer for the purposes of classifying timber and other forest produce on, or harvested from, State forest.

(2)  A person who is not an employee of the corporation is to be appointed on such terms as the corporation determines and specifies in the instrument of appointment.

(3)  A person appointed as a timber classification officer must perform such duties relating to the classification of timber and other forest produce as the corporation directs.

(4)  A person appointed as a timber classification officer does not incur any personal liability for an act done or purported or omitted to be done by the officer acting as such in good faith.

(5)  An employee or other person appointed as a timber classification officer may hold that appointment and perform the duties of a timber classification officer in conjunction with any other office or appointment held by that person.

(6)  Notwithstanding the other provisions of this section, a person who is an employee within the meaning of the Tasmanian State Service Act 1984  is not, without the prior approval of the Head of the Agency in which the person is employed –

(a) capable of being appointed as a timber classification officer; or

(b) entitled to receive any remuneration or allowances in his or her capacity as a timber classification officer.

(7)  In any proceedings, a certificate purporting to be signed by the chief executive officer and stating that a person named in the certificate is, or was at a particular time or during a particular period, a timber classification officer is admissible as evidence of the matter stated in the certificate.

24.   Joint ventures

(1)  The corporation may, by agreement in writing, enter into an arrangement with another person, or other persons, for and in relation to the carrying out on any land within State forest of a joint venture.

(2)  An arrangement under subsection (1) is to continue for such term as is specified in the agreement, and may be extended for such further period or periods as may be agreed upon between the parties to the arrangement.

(3)  Without limiting the generality of subsection (1) , an agreement under that subsection may –

(a) make provision for the carrying out by the several parties to the arrangement of specified operations, including, in particular –

(i) the planting, tending and harvesting of trees; and

(ii) the construction and maintenance of fences, roads, bridges and other facilities; and

(iii) the payments, if any, to be made by the several parties to the arrangement to other such parties; and

(iv) the apportioning among those parties of the expenses and proceeds, if any, of the joint venture and of any royalties, or the liability to pay any royalties, relating to forest produce resulting from the undertaking of the joint venture; and

(v) the disposal of that forest produce; and

(b) include terms and conditions relating to –

(i) the obtaining, cutting and conversion of the forest produce resulting from the undertaking of the joint venture; and

(ii) the marking of that forest produce, its removal from the land from which it has been obtained and the protection and preservation of timber and other growth on that land; and

(iii) the cancellation of the arrangement by the corporation for default by any other party to the arrangement in the performance of its obligations under the agreement or on such other grounds as are specified in the agreement or the regulations; and

(iv) the suspension of any of the terms and conditions or any obligations of the agreement.

Division 2 - Access and protection

25.   Signage

(1)  The corporation may erect signs on or in respect of forest roads, forest reserves or other land in State forest –

(a) for the purposes of discharging its responsibilities; or

(b) in the interests of safety.

(2)  A person must not, without lawful excuse, undertake an activity or engage in conduct on a forest road, forest reserve or other land in State forest contrary to  –

(a) the directions of the corporation expressed on a sign authorised by the corporation; or

(b) the directions of a police officer.

Penalty:  Fine not exceeding 20 penalty units.

(3)  In any proceedings under subsection (2) , a certificate purporting to be signed by the chief executive officer stating that at a particular time a sign was authorised by the corporation for the purposes of this section is admissible as evidence that, at that time, the sign was so authorised.

(4)  A police officer who reasonably considers that a person is offending against subsection (2) may direct that person to leave the forest road, forest reserve or other land in State forest.

(5)  A person who is given a direction by a police officer under subsection (4) must comply with that direction.

Penalty:  Fine not exceeding 20 penalty units.

26.   Closure of forest roads

(1)  In this section  –

artificial barricade includes a gate or chain;

prescribed sign means a sign that clearly indicates that the forest road, or the section of forest road, in respect of which it is erected is closed to vehicular traffic.

(2)  The corporation may close a forest road or any section of forest road to vehicular traffic if the corporation considers that the closure is necessary or expedient –

(a) for the purposes of discharging its responsibilities; or

(b) in the interests of safety.

(3)  The closure may be temporary or permanent but the corporation must not effect a permanent closure in a case of a forest road that is subject to significant established public use unless it has first consulted the council of the municipal area in which the road is located.

(4)  The closure may be effected by means of  –

(a) a prescribed sign; or

(b) a prescribed sign in conjunction with an artificial barricade; or

(c) a prescribed sign in conjunction with an earthen barricade; or

(d) a prescribed sign in conjunction with a trench –

or by any combination of those means.

(5)  A person must not drive or use a vehicle on a forest road or a section of forest road that has been closed in accordance with this section.

Penalty:  Fine not exceeding 5 penalty units.

(6)  In any proceedings under subsection (5) , a certificate purporting to be signed by the chief executive officer and stating that, at a particular time, a forest road or a section of forest road was closed to vehicular traffic and that the closure was effected in accordance with this section is admissible as evidence that, at that particular time, the forest road or section of forest road was so closed.

27.   Conversion of forest roads to public roads

(1)  In this section,

forest road means a forest road that is made up of land that has the status of State forest under this Act.

(2)  The power that the Governor may exercise under section 7 of the Roads and Jetties Act 1935 in respect of a road or any specified portion of a road within the meaning of that Act may also, with the consent of the corporation, be exercised in respect of a forest road or any specified portion of a forest road in all respects as if the forest road were a road within the meaning of that Act.

(3)  If, pursuant to subsection (2) , the Governor by proclamation declares any forest road or any specified portion of a forest road to be a State highway or subsidiary road for the purposes of Part II of the Roads and Jetties Act 1935 , the land comprising that forest road or specified part of that forest road ceases, by virtue of the proclamation, to be State forest on the date on which the proclamation takes effect.

(4)  The power that a council may exercise under section 12 of the Local Government (Highways) Act 1982 in respect of a road or other way within its municipal area that is not a highway may also, with the consent of the corporation, be exercised in respect of a forest road in all respects as if that forest road were a road or way within the meaning of that section of that Act.

(5)  If, pursuant to subsection (4) , a council by resolution declares that a forest road within its municipal area is to become, as specified in the resolution, a highway maintainable by the council or a particular kind of highway so maintainable, the land comprising that forest road ceases, by virtue of the resolution, to be State forest on the date on which the resolution is published in the Gazette in accordance with section 12(4) of the Local Government (Highways) Act 1982 .

(6)  This section has effect notwithstanding any other enactment.

28.   Easements over Crown land in State forest

(1)  The corporation may, on behalf of the Crown, grant easements over Crown land in State forest for such purposes and upon such terms and conditions as the corporation determines.

(2)  An easement granted under subsection (1) is registrable under the Land Titles Act 1980 .

29.   Alternative to prosecution for certain offences

(1)  If –

(a) the corporation is satisfied that a person has committed an offence against this Act involving forest produce but that in the circumstances the offence does not merit prosecution; and

(b) the person pays or agrees to pay the corporation an amount not exceeding 3 times the commercial value of the forest produce as reasonably determined by the corporation –

the corporation may accept such payment or agreement to pay and, if so, it must waive or, if applicable, discontinue the proceedings for the offence.

(2)  In a case to which subsection (1) applies the corporation may allow the person to take, remove or retain the whole or any part of the forest produce.

(3)  If the whole or any part of an amount that a person has agreed to pay the corporation under subsection (1) is not paid by such date or within such period as that person and the corporation have agreed for the purpose, the corporation may recover the unpaid amount as a debt due to the corporation in a court of competent jurisdiction.

30.   Fire protection

(1)  A person who is engaged in any forest operations in an area of State forest  must –

(a) take reasonable measures to protect the area from fire; and

(b) promptly check and suppress any fire that may occur in the area.

Penalty:  Fine not exceeding 20 penalty units.

(2)  Nothing in subsection (1) prohibits a person from carrying out reasonable and controlled burning-off operations with the written approval of the corporation as part of any forest operations or for the purposes of land management or fire safety.

(3)  A person who is engaged in any forest operations in an area of State forest must, if requested to do so by a police officer or an employee of the corporation, provide reasonable assistance to the corporation in taking action to check and suppress any fire on controlled land that is threatening, or likely to threaten, the area.

Penalty:  Fine not exceeding 20 penalty units.

(4)  The corporation must reimburse a person for the reasonable costs incurred by that person in complying with a request under subsection (3) .

Division 3 - Miscellaneous

31.   Vicarious liability

(1)  In this section, "employee" includes a contractor, whether independent or otherwise.

(2)  Where an offence against this Act is committed by an agent or employee, the principal or employer is also guilty of an offence and liable to the same penalty as is provided for the first-mentioned offence unless it is proved that the principal or employer could not by the exercise of reasonable diligence have prevented the agent or employee from committing the offence.

(3)  A principal or employer may be convicted of an offence under this section whether or not proceedings have been brought against the agent or employee.

32.   Wood supply agreements to contain certain conditions

(1)  A wood supply agreement entered into by the corporation must contain a condition that any contract entered into between –

(a) the person seeking to enter into the agreement with the corporation and any transport and harvesting contractors; and

(b) any transport and harvesting contractors in connection with the agreement –

is on fair terms.

(2)  Without prejudice to the generality of subsection (1) , a contract is not to be taken to have been entered into on fair terms unless –

(a) the parties to the contract have had the right to representation of their choice in negotiations; and

(b) the contract contains, subject to the parties agreeing in writing to the contrary, conditions providing –

(i) for the speedy resolution of disputes, and further providing that once a dispute is notified and not resolved by agreed alternative dispute resolution processes, at the election of any party to the dispute it is to be referred to arbitration, whether in accordance with the Commercial Arbitration Act 1986 or otherwise; and

(ii) for the assignment of contractual rights subject to the suitability of the proposed assignee to the party not seeking to assign, which party is not to unreasonably refuse to consent to such assignment; and

(iii) for the determination and review of rates of payment to contractors by agreed means; and

(iv) for the period of the contract and the minimum level of activity to be related to the economic life and capacity of equipment purchased for the purposes of the contract, with provision for review if a party to the contract invests in new equipment for the purposes of the contract; and

(v) for the circumstances to apply in the event of default by either party.

33.   Regulations

(1)  The Governor may make regulations prescribing matters –

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2)  The regulations may –

(a) be of general or limited application; and

(b) apply differently according to specified matters, limitations or restrictions, whether as to time, location, circumstance or otherwise; and

(c) authorise any matter to be determined, applied or regulated by the corporation or by a person or class of persons authorised by the corporation.

(3)  The regulations may –

(a) provide that a contravention of, or a failure to comply with, any of the regulations is an offence; and

(b) in respect of such an offence, provide for the imposition of a fine not exceeding 20 penalty units and, in the case of a continuing offence, a further fine not exceeding 2 penalty units for each day during which the offence continues.

14.    Firearms Act 1996 amended

Section 39 of the Firearms Act 1996 is amended by omitting paragraph (d) and substituting the following paragraph:

(d) the chief executive officer of the Forestry corporation established under section 6 of the Forestry Act 1920 .

15.    Fire Service Act 1979 amended

Section 3(1) of the Fire Service Act 1979 is amended by omitting the definition of forest officer and substituting the following definition:

forest officer means –

(a) an employee of the Forestry corporation established under section 6 of the Forestry Act 1920 ; or

(b) a person appointed as a forest officer by that corporation;

16.   Savings and transitional provisions

(1)  In this section –

commencement day means the day proclaimed under section 2 ;

forestry interest means any of the following interests that could have been issued or granted under the former Act:

(a) apiary permit;

(b) forest permit;

(c) occupation permit;

(d) forest produce licence;

(e) agistment licence;

(f) forest produce search licence;

(g) charitable firewood licence;

(h) forest game management licence;

(i) forest lease;

former Act means the Forestry Act 1920 as in force immediately before the commencement day.

(2)  Each forestry interest that was in force immediately before the commencement day is taken to continue in force under and subject to the former Act in all respects as if the former Act were still in force and this Act had not been enacted but, notwithstanding any provision of the former Act to the contrary, that forestry interest  –

(a) continues in force, if not sooner forfeited or surrendered, only until the time when it would have expired if not renewed; and

(b) is not, on or after the commencement day, renewable or transferable.

(3)  Nothing in this Act affects a contract entered into by the Forestry corporation before the commencement day or renders any such contract invalid.

(4)  The Governor may make regulations of a savings or transitional nature consequent on the enactment of this Act.

(5)  A provision of any regulations made pursuant to subsection (4) may, if the regulations so provide, take effect on the commencement day or a later date.

[Second reading presentation speech made in:

House of Assembly on 16 MARCH 1999

Legislative Council on 31 MARCH 1999]