Sustainable Forests (Timber) Amendment Act 2013

Authorised by the Chief Parliamentary Counsel Authorised Version i Sustainable Forests (Timber) Amendment Act 2013 No. 42 of 2013 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1 Purposes 1 2 Commencement 2 PART 2—AMENDMENT OF SUSTAINABLE FORESTS (TIMBER) ACT 2004 3 Division 1—Allocation orders and management of timber resources 3 3 Purposes of the Sustainable Forests (Timber) Act 2004 3 4 Definitions 3 5 New section 12A inserted 4 12A Timber resources are property of the Crown 4 6 Sections 14 and 15 substituted 4 14 Property vests in VicForests on publication of order 4 15 Contents of an allocation order 5 7 Power to amend or vary allocation order 6 8 New section 17A inserted 6 17A Effect of amendment or variation relating to the allocation of timber resources 6 9 Review of allocation of timber resources 7 10 Minister to have regard to certain matters 7 11 What happens after a review? 8 12 Minister to consult on reduction of allocation 8 13 New section 21A inserted 8 21A Rights of third parties 8 14 Timber resources are property of the Crown 8 15 Section 37 substituted 8 37 VicForests to prepare plan 8 16 Contents of plan 9 17 Section 39 substituted 10 39 Plan to be submitted to Secretary 10 18 Section 40 repealed 10 19 Section 41 substituted 10 41 VicForests to publish notice of plan 10 20 Property vests in VicForests on publication of notice 11 -- 1 of 22 -- Section Page ii Authorised by the Chief Parliamentary Counsel 21 Section 43 substituted 11 43 Review of and changes to timber release plan 11 22 Section 44 substituted 12 44 VicForests to operate in accordance with timber release plan 12 23 Offence to undertake unauthorised timber harvesting operations 12 24 New section 97 inserted 13 97 Native title rights and interests not affected by the Sustainable Forests (Timber) Amendment Act 2013 13 25 Part 13 substituted 13 PART 13—TRANSITIONAL PROVISIONS 13 140 Existing allocation order and timber release plan 13 Division 2—Repeal of certain provisions relating to management of timber harvesting and conduct of timber harvesting operations 14 26 Repeal of definition 14 27 Compliance with Codes of Practice 14 28 Minister may arrange audits 14 29 Licensing of timber harvesting operators 14 30 Direction to produce licence 14 31 Direction in relation to conduct of timber harvesting operations 15 32 Suspension of timber harvesting operation 15 33 Expiry of suspension notice once matter remedied 15 34 Regulations 15 PART 3—AMENDMENT OF TRADITIONAL OWNER SETTLEMENT ACT 2010 16 35 Definition of limited land use activity 16 36 Definition of land use activity 16 37 Definition of decision maker 16 38 Requirements for publication of notice 17 39 Section 48 substituted 17 48 Obligations of decision maker to ascertain compliance 17 PART 4—REPEAL OF AMENDING ACT 19 40 Repeal of amending Act 19 ═══════════════ ENDNOTES 20 -- 2 of 22 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 Sustainable Forests (Timber) Amendment Act 2013 † No. 42 of 2013 [Assented to 28 June 2013] The Parliament of Victoria enacts: PART 1—PRELIMINARY 1 Purposes The main purposes of this Act are— (a) to amend the Sustainable Forests (Timber) Act 2004 in relation to— (i) allocation orders; (ii) the management of timber resources; (iii) the management of timber harvesting; Victoria -- 3 of 22 -- Part 1—Preliminary Sustainable Forests (Timber) Amendment Act 2013 No. 42 of 2013 2 Authorised by the Chief Parliamentary Counsel (iv) the conduct of timber harvesting operations; and (b) to amend the Traditional Owner Settlement Act 2010 in relation to certain land use activities. 2 Commencement (1) Subject to subsection (2), this Act (other than Division 2 of Part 2) comes into operation on a day or days to be proclaimed. (2) If a provision referred to in subsection (1) does not come into operation before 1 January 2014, it comes into operation on that day. (3) Subject to subsection (4), Division 2 of Part 2 comes into operation on a day or days to be proclaimed. (4) If a provision referred to in subsection (3) does not come into operation before 1 January 2015, it comes into operation on that day. __________________ s. 2 -- 4 of 22 -- Part 2—Amendment of Sustainable Forests (Timber) Act 2004 Sustainable Forests (Timber) Amendment Act 2013 No. 42 of 2013 3 Authorised by the Chief Parliamentary Counsel PART 2—AMENDMENT OF SUSTAINABLE FORESTS (TIMBER) ACT 2004 Division 1—Allocation orders and management of timber resources 3 Purposes of the Sustainable Forests (Timber) Act 2004 After section 1(a) of the Sustainable Forests (Timber) Act 2004 insert— "(ab) to provide for the granting of long-term access to timber resources in State forests; (ac) to foster investment in, and returns from, timber resources in State forests;". 4 Definitions (1) In section 3 of the Sustainable Forests (Timber) Act 2004, for the definition of timber release plan substitute— "timber release plan means a plan prepared under section 37, notice of which has been published under section 41;". (2) In section 3 of the Sustainable Forests (Timber) Act 2004— (a) the definition of approved timber release plan is repealed; (b) in the definition of vested timber resources, for "42" substitute "14(1)". See: Act No. 48/2004. Reprint No. 1 as at 16 November 2006 and amending Act Nos 28/2007, 68/2009, 35/2010 and 62/2010. LawToday: www. legislation. vic.gov.au s. 3 -- 5 of 22 -- Part 2—Amendment of Sustainable Forests (Timber) Act 2004 Sustainable Forests (Timber) Amendment Act 2013 No. 42 of 2013 4 Authorised by the Chief Parliamentary Counsel 5 New section 12A inserted Before section 13 of the Sustainable Forests (Timber) Act 2004 insert— "12A Timber resources are property of the Crown (1) All timber resources in State forest are the property of the Crown. (2) Property in timber resources only passes from the Crown— (a) to VicForests in accordance with section 14(1); or (b) otherwise in accordance with this Act.". 6 Sections 14 and 15 substituted For sections 14 and 15 of the Sustainable Forests (Timber) Act 2004 substitute— "14 Property vests in VicForests on publication of order (1) On the publication of an order under section 13, property in the timber allocated by the order is vested in VicForests. (2) VicForests may only harvest and sell, or harvest or sell, vested timber resources in accordance with the order. (3) Subject to this Act and to the allocation order, VicForests is entitled to retain the revenue received from harvesting and selling, or harvesting or selling, vested timber resources. s. 5 -- 6 of 22 -- Part 2—Amendment of Sustainable Forests (Timber) Act 2004 Sustainable Forests (Timber) Amendment Act 2013 No. 42 of 2013 5 Authorised by the Chief Parliamentary Counsel 15 Contents of an allocation order (1) An allocation order must include— (a) in relation to the timber resources allocated— (i) a description of the forest stands to which the order applies; (ii) references to, or details of, the extent and location of the forest stands to which the order applies; (iii) a description of the total area available for harvest in each forest stand; (b) a list of the activities (if any) additional to those referred to in section 13(b) that VicForests is permitted to undertake in the areas to which the order applies. (2) An allocation order may include any condition, limitation, matter or specification that the Minister thinks fit. (3) Without limiting subsection (2), an allocation order may include a condition, limitation, matter or specification as to the area that may be harvested during a period specified in the order. (4) Without limiting subsection (2), an allocation order may include the following in relation to the preparation of a plan under section 37, or the changing of a timber release plan under section 43— (a) a specification as to the persons or bodies with whom or with which VicForests must consult in relation to timber harvesting operations proposed in any coupes specified in a plan; s. 6 -- 7 of 22 -- Part 2—Amendment of Sustainable Forests (Timber) Act 2004 Sustainable Forests (Timber) Amendment Act 2013 No. 42 of 2013 6 Authorised by the Chief Parliamentary Counsel (b) a condition as to the manner in which that consultation must occur. (5) A specification or condition referred to in subsection (4) that relates to the changing of a timber release plan under section 43, may differ according to the kind of change proposed to be made to the plan.". 7 Power to amend or vary allocation order For section 17(1)(b) of the Sustainable Forests (Timber) Act 2004 substitute— "(b) to change permitted activities referred to in section 15(1)(b); (ba) to change conditions, limitations, matters or specifications referred to in section 15(2), (3) or (4);". 8 New section 17A inserted After section 17 of the Sustainable Forests (Timber) Act 2004 insert— "17A Effect of amendment or variation relating to the allocation of timber resources (1) This section applies if an allocation order is amended or varied in accordance with section 17(1)(c). (2) If the effect of the amendment or variation is to increase the timber resources allocated by the order, the timber resources specified in the order following its amendment or variation that were not specified in the order immediately before its amendment or variation, vest in VicForests on the day the amendment or variation takes effect. s. 7 -- 8 of 22 -- Part 2—Amendment of Sustainable Forests (Timber) Act 2004 Sustainable Forests (Timber) Amendment Act 2013 No. 42 of 2013 7 Authorised by the Chief Parliamentary Counsel (3) If the effect of the amendment or variation is to reduce the timber resources allocated by the order, the vested timber resources specified as having been reduced are divested from VicForests and vest in the Crown— (a) in the case of an amendment or variation that was made as a result of a review referred to in section 18(2)(a) or (b), on the date the order takes effect; or (b) in the case of an amendment or variation that was made as a result of a review referred to in section 18(2)(c)— (i) on the date or dates specified in an agreement referred to in section 20(3)(a); or (ii) on the date calculated in accordance with section 20(3)(b). Note Section 21A provides that an allocation order cannot be amended or varied in relation to any vested timber resources in respect of which property has passed to a third party.". 9 Review of allocation of timber resources Section 18(1) of the Sustainable Forests (Timber) Act 2004 is repealed. 10 Minister to have regard to certain matters In section 19 of the Sustainable Forests (Timber) Act 2004— (a) in paragraph (d) omit ", during the previous 5 years"; (b) in paragraph (f) omit "during the previous 5 years". s. 9 -- 9 of 22 -- Part 2—Amendment of Sustainable Forests (Timber) Act 2004 Sustainable Forests (Timber) Amendment Act 2013 No. 42 of 2013 8 Authorised by the Chief Parliamentary Counsel 11 What happens after a review? (1) Section 20(2)(a) of the Sustainable Forests (Timber) Act 2004 is repealed. (2) In section 20(3) of the Sustainable Forests (Timber) Act 2004, for "18(1) or (2)(c)" substitute "18(2)(c)". 12 Minister to consult on reduction of allocation In section 21 of the Sustainable Forests (Timber) Act 2004 omit "and the Minister for Agriculture". 13 New section 21A inserted After section 21 of the Sustainable Forests (Timber) Act 2004 insert— "21A Rights of third parties (1) An allocation order cannot be amended or varied in relation to any vested timber resources in respect of which property has passed to a third party. (2) Nothing in this Act is to be taken to affect the rights of a third party in relation to vested timber resources of a kind referred to in subsection (1).". 14 Timber resources are property of the Crown Section 36 of the Sustainable Forests (Timber) Act 2004 is repealed. 15 Section 37 substituted For section 37 of the Sustainable Forests (Timber) Act 2004 substitute— "37 VicForests to prepare plan (1) VicForests must prepare a plan in respect of an area to which an allocation order applies for the purposes of— s. 11 -- 10 of 22 -- Part 2—Amendment of Sustainable Forests (Timber) Act 2004 Sustainable Forests (Timber) Amendment Act 2013 No. 42 of 2013 9 Authorised by the Chief Parliamentary Counsel (a) harvesting and selling, or harvesting or selling, timber resources; and (b) undertaking associated management activities in relation to those timber resources. (2) In preparing a plan under this section, VicForests must comply with any condition relating to consultation that is specified in the allocation order to which the plan relates. (3) VicForests must ensure that a plan prepared under this section is consistent with— (a) the allocation order to which the plan relates, including any condition, limitation, matter or specification in the order; and (b) any relevant Code of Practice relating to timber harvesting.". 16 Contents of plan (1) In section 38(1) of the Sustainable Forests (Timber) Act 2004, for "timber release plan" substitute "plan prepared under section 37". (2) For section 38(2) of the Sustainable Forests (Timber) Act 2004 substitute— "(2) A plan prepared under section 37 may include any other matters necessary or convenient to be included in the plan.". s. 16 -- 11 of 22 -- Part 2—Amendment of Sustainable Forests (Timber) Act 2004 Sustainable Forests (Timber) Amendment Act 2013 No. 42 of 2013 10 Authorised by the Chief Parliamentary Counsel 17 Section 39 substituted For section 39 of the Sustainable Forests (Timber) Act 2004 substitute— "39 Plan to be submitted to Secretary VicForests must submit a plan prepared under section 37 to the Secretary not less than 30 days before the day on which notice of the plan is published under section 41.". 18 Section 40 repealed Section 40 of the Sustainable Forests (Timber) Act 2004 is repealed. 19 Section 41 substituted For section 41 of the Sustainable Forests (Timber) Act 2004 substitute— "41 VicForests to publish notice of plan (1) VicForests must cause notice of a plan prepared under section 37 to be published in the Government Gazette. (2) A notice published under subsection (1) must include details of where the plan may be viewed. (3) On the publication of a notice under subsection (1), the plan takes effect in accordance with its terms. Note The publication of a notice under this section may be a land use activity under the Traditional Owner Settlement Act 2010 if it relates to public land to which a land use activity agreement under that Act applies.". s. 17 -- 12 of 22 -- Part 2—Amendment of Sustainable Forests (Timber) Act 2004 Sustainable Forests (Timber) Amendment Act 2013 No. 42 of 2013 11 Authorised by the Chief Parliamentary Counsel 20 Property vests in VicForests on publication of notice Section 42 of the Sustainable Forests (Timber) Act 2004 is repealed. 21 Section 43 substituted For section 43 of the Sustainable Forests (Timber) Act 2004 substitute— "43 Review of and changes to timber release plan (1) VicForests may review a timber release plan at any time. (2) VicForests may change a timber release plan at any time if the change is not inconsistent with— (a) the allocation order to which the plan relates, including any condition, limitation, matter or specification in the order; and (b) any relevant Code of Practice relating to timber harvesting. (3) In changing a timber release plan, VicForests must comply with any condition relating to consultation that is specified in the allocation order to which the plan relates. (4) A timber release plan cannot be changed in relation to any vested timber resources in respect of which property has passed to a third party. (5) Nothing in this section is to be taken to affect the rights of a third party in relation to vested timber resources of a kind referred to in subsection (4). s. 20 -- 13 of 22 -- Part 2—Amendment of Sustainable Forests (Timber) Act 2004 Sustainable Forests (Timber) Amendment Act 2013 No. 42 of 2013 12 Authorised by the Chief Parliamentary Counsel (6) If a timber release plan is changed under this section, VicForests must cause a notice of the change to the plan to be published in the Government Gazette. (7) On publication of a notice under subsection (6), the changed timber release plan takes effect in accordance with its terms. Note The publication of a notice under this section may be a land use activity under the Traditional Owner Settlement Act 2010 if it relates to public land to which a land use activity agreement under that Act applies.". 22 Section 44 substituted For section 44 of the Sustainable Forests (Timber) Act 2004 substitute— "44 VicForests to operate in accordance with timber release plan VicForests must carry out its functions and powers under this Act in relation to vested timber resources, or in relation to an area to which an allocation order applies, in accordance with any timber release plan.". 23 Offence to undertake unauthorised timber harvesting operations For section 45(2)(a)(i) of the Sustainable Forests (Timber) Act 2004 substitute— "(i) timber harvesting operations undertaken by, or on behalf of, VicForests in accordance with an allocation order and a timber release plan that relates to that allocation order; or". s. 22 -- 14 of 22 -- Part 2—Amendment of Sustainable Forests (Timber) Act 2004 Sustainable Forests (Timber) Amendment Act 2013 No. 42 of 2013 13 Authorised by the Chief Parliamentary Counsel 24 New section 97 inserted After section 96 of the Sustainable Forests (Timber) Act 2004 insert— "97 Native title rights and interests not affected by the Sustainable Forests (Timber) Amendment Act 2013 (1) The amendments made to this Act by the Sustainable Forests (Timber) Amendment Act 2013 are not intended to affect native title rights and interests. (2) Subsection (1) does not apply in any case where native title rights and interests are affected, or are authorised to be affected, by or under the Native Title Act 1993 of the Commonwealth. (3) In this section— affect has the same meaning as in the Native Title Act 1993 of the Commonwealth; native title rights and interests has the same meaning as in the Native Title Act 1993 of the Commonwealth.". 25 Part 13 substituted For Part 13 of the Sustainable Forests (Timber) Act 2004 substitute— "PART 13—TRANSITIONAL PROVISIONS 140 Existing allocation order and timber release plan Despite anything to the contrary in any other provision of this Act, on and from the commencement of section 6 of the Sustainable Forests (Timber) Amendment Act 2013, the following cease to have any force or effect— s. 24 -- 15 of 22 -- Part 2—Amendment of Sustainable Forests (Timber) Act 2004 Sustainable Forests (Timber) Amendment Act 2013 No. 42 of 2013 14 Authorised by the Chief Parliamentary Counsel (a) any allocation order in force immediately before the commencement of that section; and (b) any approved timber release plan that relates to an allocation order referred to in paragraph (a). __________________". Division 2—Repeal of certain provisions relating to management of timber harvesting and conduct of timber harvesting operations 26 Repeal of definition In section 3 of the Sustainable Forests (Timber) Act 2004, the definition of timber harvesting operator's licence is repealed. 27 Compliance with Codes of Practice Section 46(c) of the Sustainable Forests (Timber) Act 2004 is repealed. 28 Minister may arrange audits Section 47(c) of the Sustainable Forests (Timber) Act 2004 is repealed. 29 Licensing of timber harvesting operators Division 2 of Part 6 of the Sustainable Forests (Timber) Act 2004 is repealed. 30 Direction to produce licence Section 69 of the Sustainable Forests (Timber) Act 2004 is repealed. s. 26 -- 16 of 22 -- Part 2—Amendment of Sustainable Forests (Timber) Act 2004 Sustainable Forests (Timber) Amendment Act 2013 No. 42 of 2013 15 Authorised by the Chief Parliamentary Counsel 31 Direction in relation to conduct of timber harvesting operations In section 70(1) of the Sustainable Forests (Timber) Act 2004, for "the holder of a timber harvesting operator's licence" substitute "undertaking timber harvesting operations in a State forest". 32 Suspension of timber harvesting operation For section 71(2) of the Sustainable Forests (Timber) Act 2004 substitute— "(2) A notice under subsection (1) may be issued to the person who has, or may reasonably be presumed to have, control over the timber harvesting operation in the State forest.". 33 Expiry of suspension notice once matter remedied For section 74(1) of the Sustainable Forests (Timber) Act 2004 substitute— "(1) Subject to this Part, if the damage, risk, matter or activity to which a suspension notice relates is remedied to the satisfaction of an authorised officer, the authorised officer may issue a notification in writing that he or she is so satisfied to the person who has, or may reasonably be presumed to have, control over the timber harvesting operation in the State forest in respect of which the suspension notice was issued.". 34 Regulations In section 96(1) of the Sustainable Forests (Timber) Act 2004— (a) paragraphs (a), (b), (c) and (d) are repealed; and (b) in paragraph (f) omit "other". __________________ s. 31 -- 17 of 22 -- Part 3—Amendment of Traditional Owner Settlement Act 2010 Sustainable Forests (Timber) Amendment Act 2013 No. 42 of 2013 16 Authorised by the Chief Parliamentary Counsel PART 3—AMENDMENT OF TRADITIONAL OWNER SETTLEMENT ACT 2010 35 Definition of limited land use activity In section 27(1) of the Traditional Owner Settlement Act 2010, for paragraph (a) of the definition of limited land use activity substitute— "(a) a land use activity that is the publication of a notice under section 41 of the Sustainable Forests (Timber) Act 2004; or". 36 Definition of land use activity For section 28(i) and (j) of the Traditional Owner Settlement Act 2010 substitute— "(i) the publication of a notice under section 41 of the Sustainable Forests (Timber) Act 2004; (j) the publication of a notice under section 43 of the Sustainable Forests (Timber) Act 2004;". 37 Definition of decision maker For section 29(f) of the Traditional Owner Settlement Act 2010 substitute— "(f) in relation to— (i) the publication of a notice under section 41 of the Sustainable Forests (Timber) Act 2004, VicForests; (ii) the publication of a notice under section 43 of the Sustainable Forests (Timber) Act 2004, VicForests;". See: Act No. 62/2010. Reprint No. 1 as at 8 March 2013. LawToday: www. legislation. vic.gov.au s. 35 -- 18 of 22 -- Part 3—Amendment of Traditional Owner Settlement Act 2010 Sustainable Forests (Timber) Amendment Act 2013 No. 42 of 2013 17 Authorised by the Chief Parliamentary Counsel 38 Requirements for publication of notice (1) For the heading to section 47 of the Traditional Owner Settlement Act 2010 substitute— "Requirements for publication of notice of proposed timber release plans". (2) For section 47(1) of the Traditional Owner Settlement Act 2010 substitute— "(1) If a provision of a land use activity agreement specifies that the publication of a notice under section 41 of the Sustainable Forests (Timber) Act 2004 is a negotiation activity in the land use activity agreement, VicForests must reach agreement with the traditional owner group entity as to— (a) the publication of the notice; and (b) the conditions to which the agreement to publish the notice is subject, including the provision of community benefits, if any.". (3) For section 47(3) of the Traditional Owner Settlement Act 2010 substitute— "(3) VicForests is not entitled to publish the notice until VicForests has complied with subsection (1) or VCAT or the Minister has determined under this Part that the notice should be published.". 39 Section 48 substituted For section 48 of the Traditional Owner Settlement Act 2010 substitute— "48 Obligations of decision maker to ascertain compliance If, in the case of the publication of a notice under section 41 of the Sustainable Forests (Timber) Act 2004, VicForests is required s. 38 -- 19 of 22 -- Part 3—Amendment of Traditional Owner Settlement Act 2010 Sustainable Forests (Timber) Amendment Act 2013 No. 42 of 2013 18 Authorised by the Chief Parliamentary Counsel to comply with section 47, the decision maker must not publish the notice unless— (a) the decision maker has received a notice signed by the traditional owner group entity stating that agreement that complies with section 51 has been reached; or (b) in a case in respect of which VCAT has made a determination under Subdivision 2 of Division 4 that the notice be published, the decision maker has received a copy of the VCAT determination; or (c) in a case in respect of which the Minister has made a determination under Subdivision 3 of Division 4 that the notice be published, the decision maker has received a copy of that determination. Note In this section, the decision maker is VicForests. See the definition of decision maker.". __________________ s. 39 -- 20 of 22 -- Part 4—Repeal of Amending Act Sustainable Forests (Timber) Amendment Act 2013 No. 42 of 2013 19 Authorised by the Chief Parliamentary Counsel PART 4—REPEAL OF AMENDING ACT 40 Repeal of amending Act This Act is repealed on 1 January 2016. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═══════════════ s. 40 -- 21 of 22 -- Sustainable Forests (Timber) Amendment Act 2013 No. 42 of 2013 20 Authorised by the Chief Parliamentary Counsel ENDNOTES † Minister's second reading speech— Legislative Council: 18 April 2013 Legislative Assembly: 8 May 2013 The long title for the Bill for this Act was "A Bill for an Act to amend the Sustainable Forests (Timber) Act 2004 and the Traditional Owner Settlement Act 2010 and for other purposes." Endnotes -- 22 of 22 --