Forest Practices Amendment Act 1999

Forest Practices Amendment Act 1999

An Act to amend the Forest Practices Act 1985 and certain other Acts

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 Forest Practices Amendment Act 1999 .

2.   Commencement

This Act commences on a day to be proclaimed.

3.   Principal Act

In this Act, the Forest Practices Act 1985 is referred to as the Principal Act.

4.    Section 3 amended (Interpretation)

Section 3(1) of the Principal Act is amended as follows:

(a) by omitting the definition of approved timber harvesting plan ;

(b) by omitting the definition of Board and substituting the following definitions:

Board means the Forest Practices Board established under section 4AA ;

certified forest practices plan means a forest practices plan certified by the Board and in force under this Act and includes a forest practices plan varied in accordance with Part III ;

(c) by omitting the definition of chief forest practices officer and substituting the following definition:

chief forest practices officer means the chief forest practices officer appointed under section 4J ;

(d) by omitting the definition of forest practices and substituting the following definition:

forest practices means the processes involved in establishing forests, or growing or harvesting timber, and includes  –

(a) the construction of roads; and

(b) the development and operation of quarries; and

(c) other works  –

connected with establishing forests, or growing or harvesting timber;

(e) by omitting the definition of forests practices officer and substituting the following definitions:

forest practices officer means a forest practices officer referred to in section 39 ;

forest practices plan means a plan referred to in section 18 ;

(f) by inserting the following paragraph before paragraph (a) in the definition of owner of land :

(aa) in the case of Crown land that is State forest within the meaning of the Forestry Act 1920  – the Forestry corporation;

(g) by inserting "or, if the land is general law land subject to mortgage, the person having the equity of redemption in that land" after "vested" in paragraph (a) of the definition of owner of land ;

(h) by omitting the definition of timber harvesting plan .

5.    Section 4AA inserted

Before section 4A of the Principal Act , the following section is inserted in Part 1A:

4AA.   Establishment of Board

(1)  The Forest Practices Board is established.

(2)  The Board  –

(a) is a body corporate with perpetual succession; and

(b) has a seal; and

(c) may sue and be sued in its corporate name.

6.    Section 4A amended (Membership of Board)

Section 4A of the Principal Act is amended as follows:

(a) by omitting from subsection (1)(a) "The" and substituting "the";

(b) by omitting paragraph (c) from subsection (1) and substituting the following paragraphs:

(c) one of the directors of the Forestry corporation referred to in section 12E (1) (b) of the Forestry Act 1920 ; and

(d) a person having expertise and knowledge of local government, who is a representative of a municipal area in which forestry is a major land use; and

(e) a person having expertise in the harvesting and processing of timber.

(c) by inserting the following subsections after subsection (1) :

(1A)  The member referred to in subsection (1)(d) is appointed by the Minister on the nomination of the Local Government Association of Tasmania.

(1B)  The member referred to in subsection (1)(e) is appointed by the Minister from among the following nominees:

(a) the nominee of the Forest Industries Association of Tasmania;

(b) the nominee of the Tasmanian Country Sawmillers Federation;

(c) the nominee of the Tasmanian Logging Association;

(d) the nominee of the Tasmanian Trades and Labor Council.

(1C)  The Minister may request a body referred to in subsection (1A) or (1B) to submit a nomination within a specified period, being a period of not less than 40 days.

(1D)  If a body that has been requested to submit a nomination to the Minister fails to do so, the Minister may, as the case requires, make an appointment under paragraph (d) or (e) of subsection (1) without further reference to that body.

(1E)  If a body referred to in subsection (1A) or (1B) changes its name, the Governor may, by order, amend the relevant subsection by substituting the body's new name.

(1F)  If a body referred to in subsection (1A) or (1B) ceases to exist, the Governor may, by order made on the recommendation of the Board, amend the relevant subsection by substituting the name of a body that substantially represents the interests that were previously represented by the body that has ceased to exist.

7.    Section 4C amended (Functions of Board)

Section 4C of the Principal Act is amended as follows:

(a) by omitting from paragraph (e) "timber harvesting plans" and substituting "forest practices plans";

(b) by inserting the following paragraph after paragraph (f) :

(fa) to monitor and report to the Minister on harvesting and reafforestation activity in relation to the maintenance of a permanent forest estate;

(c) by omitting paragraph (h) and substituting the following paragraph:

(h) to make a recommendation on the appointment of the chief forest practices officer and to appoint forest practices officers;

(d) by omitting from paragraph (i) "Act." and substituting "Act;";

(e) by inserting the following paragraph after paragraph (i) :

(j) to perform any prescribed functions.

8.    Section 4D substituted

Section 4D of the Principal Act is repealed and the following section is substituted:

4D.   Powers of Board

The Board has the following powers:

(a) to enter into contracts;

(b) to appoint agents, attorneys and consultants;

(c) to act as a consultant or agent;

(d) to set charges and conditions relating to the performance and exercise of its functions and powers;

(e) to make a recommendation on the appointment of the chief forest practices officer and to appoint forest practices officers;

(f) to mediate between parties in respect of three-year plans;

(g) to do all other things that it is authorised to do under this or any other Act;

(h) to do all things necessary or convenient to be done in connection with the performance and exercise of its functions and powers.

9.    Section 4E amended (Annual assessment of forest practices system)

Section 4E of the Principal Act is amended as follows:

(a) by omitting from subsection (1)(b) "timber harvesting plans" and substituting "forest practices plans";

(b) by omitting subsection (3) and substituting the following subsection:

(3)  The report prepared under subsection (2) in respect of a financial year is to be included in the annual report of the Board for the same financial year.

10.    Section 4F repealed

Section 4F of the Principal Act is repealed.

11.    Sections 4J , 4K and 4L inserted

After section 4H of the Principal Act , the following sections are inserted in Part 1A:

4J.   Chief forest practices officer

(1)  The Minister, on the recommendation of the Board, is to appoint a person appointed or employed under the Tasmanian State Service Act 1984 to be chief forest practices officer and that person holds that office in conjunction with a position or office under that Act.

(2)  A person appointed as chief forest practices officer must have –

(a) extensive expertise in forestry; and

(b) extensive experience in forest operations; and

(c) knowledge of the sustainable management of forests; and

(d) management skills.

(3)  If a person who is appointed as chief forest practices officer was not a forest practices officer immediately before that appointment, he or she is, by virtue of that appointment and without further authorisation than this subsection, a forest practices officer for the purposes of this Act.

(4)  The Board may recommend to the Minister that the appointment of a person as chief forest practices officer should be terminated if the Board is reasonably of the opinion that the person –

(a) is not discharging the duties of that office efficiently or in the best interests of the State; or

(b) is, except by reason of temporary illness, unfit to discharge or incapable of discharging the duties of the office.

(5)  Subsection (4) does not limit or affect a power to terminate the appointment of a person as chief forest practices officer that is contained in any other enactment or in any contract of service relating to that office.

4K.   Role of chief forest practices officer

The chief forest practices officer –

(a) is responsible for overseeing the day-to-day administration of forest practices; and

(b) must perform any functions, and may exercise any powers, delegated to the chief forest practices officer by the Board; and

(c) must perform any other functions imposed on, and may exercise any other powers granted to, the chief forest practices officer by this or any other Act.

4L.   Staff

Subject to and in accordance with the Tasmanian State Service Act 1984 , persons may be appointed or employed for the purposes of enabling the Board to perform its functions or exercise its powers.

12.    Parts 1B and 1C inserted

After section 4H of the Principal Act , the following Parts are inserted:

PART 1B - Finances of Board

4M.   Funds of Board

The funds of the Board consist of –

(a) all money received by it in the course of performing its functions or exercising its powers; and

(b) all money received by it as interest on amounts deposited with financial institutions or as profit in respect of investments; and

(c) any money appropriated by Parliament for the purposes of the Board; and

(d) any money received by the Board from any other source.

4N.   Bank and other accounts

The Board may open and maintain such bank, building society and credit union accounts as it considers necessary.

4P.   Investment

Subject to section 16 of the Tasmanian Public Finance Corporation Act 1985 , the Board may invest any funds held by it and any interest accumulated in respect of those funds in any manner which is consistent with sound commercial practice.

4Q.   Reserves

The Board may establish and maintain reserves.

4R.   Borrowing from Treasurer

(1)  The Treasurer may lend to the Board, out of money provided by Parliament for the purpose, such money as the Treasurer considers appropriate.

(2)  A loan is subject to conditions determined by the Treasurer.

(3)  An amount lent under subsection (1) , and any interest or other charge payable in respect of the loan, is a debt repayable by the Board into the Consolidated Fund.

4S.   Borrowing from person other than Treasurer

(1)  The Board may borrow money from a person or body other than the Treasurer for the purposes of performing its functions and achieving its objectives.

(2)  The total of all amounts of money borrowed under this section during a financial year must not exceed the maximum amount determined by the Treasurer, in writing, in respect of that financial year.

(3)  The Board may use all or part of its assets as security for money borrowed by it under subsection (1) and any interest or charges payable in respect of that borrowing.

(4)  If requested to do so by the Board, the Treasurer may guarantee the payment or repayment to a person or body from which the Board borrows money under subsection (1) of any or all of the following:

(a) the amount borrowed;

(b) any interest payable in respect of the amount borrowed;

(c) any charges relating to the borrowing;

(d) any expenses of that person or body incurred in relation to the borrowing and which are payable by the Board.

(5)  A guarantee is subject to the conditions determined by the Treasurer.

(6)  A payment or repayment which is required under a guarantee is payable out of the Consolidated Fund without further appropriation than this section.

(7)  If the Treasurer makes any payment or repayment under a guarantee, an amount equal to the amount so paid or repaid, and any interest payable by the Board in accordance with the conditions to which the guarantee is subject, is a debt repayable by the Board into the Consolidated Fund on the conditions and in the manner determined by the Treasurer.

4T.   Effect of Financial Agreement Act 1994

Where the Treasurer, under section 5(1) of the Financial Agreement Act 1994 , requires the Board to do or refrain from doing anything for the purpose of implementing the Agreement, within the meaning of that Act, the Board must comply with that requirement.

PART 1C - Accounting records, financial statements and reports

4U.   Accounting records

The Board must –

(a) keep such accounting records as correctly record and explain its transactions, including any transactions as trustee, and financial position; and

(b) keep those records in a manner that –

(i) allows true and fair accounts of the Board to be prepared from time to time; and

(ii) allows its accounts to be conveniently and properly audited or reviewed; and

(iii) complies with Australian Accounting Standards; and

(c) retain those records for a period of not less than 7 years after the completion of the transaction to which they relate.

4V.   Financial statements

(1)  Within 90 days after the end of a financial year, the Board must –

(a) prepare the financial statements of the Board relating to that financial year; and

(b) provide the Auditor-General with the Board's financial statements.

(2)  Financial statements in respect of a financial year are to consist of –

(a) a profit and loss account or other operating statement for that financial year; and

(b) a balance sheet or other statement of financial position as at the end of that financial year if the Board has assets or liabilities; and

(c) a statement of the cash flows for that financial year; and

(d) any other financial information required to present a true and fair view of the financial affairs of the Board.

4W.   Opinion of Auditor-General

The Auditor-General must provide the Board, the Minister and the Treasurer with a copy of his or her opinion in respect of the financial statements of the Board given under section 40 of the Financial Management and Audit Act 1990 .

4X.   Annual report

(1)  The Board must prepare an annual report for each financial year.

(2)  The annual report is to include the following information and documents:

(a) the financial statements of the Board for the financial year to which the annual report relates;

(b) a copy of the opinion of the Auditor-General in respect of the financial statements received under section 4W ;

(c) a report on the operations and performance of the Board during that financial year;

(d) the report required to be prepared under section 4E ;

(e) any information relating to the Board required by the Minister by written notice to the Board to be included;

(f) any other information that the Board considers is appropriate or necessary to properly inform the Minister and Parliament as to the performance and progress of the Board during that financial year.

(3)  The Board must provide the annual report to the Minister and the Auditor-General.

4Y.   Tabling of annual report

(1)  The Minister must lay a copy of the annual report before each House of Parliament within 5 months after the end of the financial year to which the annual report relates.

(2)  Where the Minister is unable to comply with subsection (1) for any reason other than that a House of Parliament is not sitting at the expiration of the period specified in that subsection, he or she must, before the expiration of that period, lay before each House of Parliament a statement specifying the reasons for the failure to comply with that subsection and an estimate of the day by which a copy of the annual report will be ready to be laid before each House of Parliament.

(3)  Where the Minister is unable to lay a copy of the annual report before a House of Parliament within the period specified in subsection (1) or by the day specified in a statement referred to in subsection (2) because either House of Parliament is not sitting at the expiration of that period or on that day, the Minister must –

(a) immediately after the expiration of that period or that day, forward a copy of the annual report to the clerk of that House of Parliament; and

(b) within the next 7 sitting days of that House, lay a copy of the annual report before that House.

4Z.   State of the forests report

(1)  The Board must, not later than 30 November 2002 and not later than 30 November in each fifth year thereafter, give the Minister a written report on the state of Tasmania's public and private forests.

(2)  The Minister must cause a copy of each report prepared under subsection (1) to be laid on the table of each House of Parliament within 14 sitting days of that House after the report is received by the Minister.

(3)  The Board is to prepare a report under subsection (1) in cooperation and consultation with the following bodies:

(a) the Forestry corporation;

(b) Private Forests Tasmania;

(c) the responsible Department in relation to the National Parks and Wildlife Act 1970 ;

(d) such other State authorities and Government departments as have statutory responsibilities in relation to forests or forested land.

(4)  Consultations under subsection (3) are to be conducted with a view to the parties reaching agreement on the information that is to be included in the report and the arrangements for providing the Board with that information.

13.    Section 7 amended (Objections to declaration of land as private timber reserve)

Section 7(4) of the Principal Act is amended by omitting "including, in the case of general law land subject to mortgage, the person having the equity of redemption in that land" from paragraph (d) of the definition of prescribed person .

14.    Part III: Heading amended

Part III of the Principal Act is amended by omitting "TIMBER HARVESTING" from the heading to that Part and substituting "PLANS".

15.    Part III, Division 1: Heading amended

Division 1 of Part III of the Principal Act is amended by omitting "Timber harvesting plans" from the heading to that Division and substituting "Forest practices plans".

16.    Section 17 amended (Restrictions on harvesting timber, &c.)

Section 17 of the Principal Act is amended as follows:

(a) by omitting subsection (1) and substituting the following subsection:

(1)  For the purposes of this section, a person is taken to be a responsible person in relation to any land if that person –

(a) is the owner of that land and has not assigned his or her responsibilities under this section to another person in accordance with subsection (2) ; or

(b) is a person to whom the owner's responsibilities under this section have been assigned in accordance with subsection (2) ; or

(c) is a timber processor having the immediate right, whether by virtue of a contract or otherwise, to process timber harvested on that land; or

(d) carries out, or causes to be carried out, forest practices on that land.

(b) by omitting from subsection (2) "private";

(c) by omitting subsection (4) and substituting the following subsection:

(4)  A person who is a responsible person in relation to any land must not carry out, or cause or allow the carrying out of, an activity of the following kind on that land unless a certified forest practices plan exists in respect of that land when that activity is being carried out:

(a) the establishment of forests;

(b) the harvesting of timber;

(c) the construction of a road in connection with an activity referred to in paragraph (a) or (b) ;

(d) the operation of a quarry in connection with an activity referred to in paragraph (a) or (b) .

Penalty:  Fine not exceeding 150 penalty units.

17.    Section 18 amended (Application for certification of forest practices plan)

Section 18(2)(c) of the Principal Act is amended by omitting "harvesting shall" and substituting "forest practices are to".

18.    Section 19 amended (Board to certify or refuse to certify forest practices plan)

Section 19 of the Principal Act is amended as follows:

(a) by omitting from subsection (1) "approval of a timber harvesting plan" and substituting "the certification of a forest practices plan";

(b) by omitting from subsection (1)(a) "approve" and substituting "certify";

(c) by omitting from subsection (1)(b) "approve" and substituting "certify";

(d) by omitting from subsection (1)(c)(iii) "approve" and substituting "certify";

(e) by omitting from subsection (2) "approval of a timber harvesting plan" and substituting "the certification of a forest practices plan";

(f) by omitting from subsection (3) "approves a timber harvesting plan, refuses to approve a timber harvesting plan, or approves a plan" and substituting "certifies a forest practices plan, refuses to certify a forest practices plan or certifies a plan";

(g) by inserting the following subsections after subsection (3) :

(4)  If the Board itself certifies a forest practices plan it must immediately affix its seal to the plan and endorse it with the date of certification.

(5)  If a person to whom the Board has delegated the power to certify forest practices plans certifies such a plan, the person must immediately sign the plan and endorse it with the date of certification.

19.    Section 20 substituted

Section 20 of the Principal Act is repealed and the following section is substituted:

20.   Authority of certified forest practices plan

A certified forest practices plan authorises forest practices and any operations associated with those forest practices to be carried out on the land specified in the plan in accordance with the provisions of that plan during the period specified in the plan.

20.    Section 21 amended (Contravention, &c., of certified forest practices plan)

Section 21(1) of the Principal Act is amended as follows:

(a) by omitting "timber harvesting plan has been approved" and substituting "forest practices plan has been certified";

(b) by omitting paragraph (a) and substituting the following paragraph:

(a) any person who in carrying out any act, or in omitting to carry out any act, contravenes or fails to comply with the provisions of the plan; or

21.    Section 23 amended (Application for variation of certified forest practices plan)

Section 23(1) of the Principal Act is amended as follows:

(a) by omitting "approval of a timber harvesting plan" and substituting "the certification of a forest practices plan";

(b) by omitting "approved" and substituting "certified".

22.    Section 25 amended (Appeal in respect of forest practices plan)

Section 25 of the Principal Act is amended as follows:

(a) by omitting from subsection (1) "approval of a timber harvesting plan" and substituting "the certification of a forest practices plan";

(b) by omitting from subsection (1)(a) "approve the timber harvesting plan" and substituting "certify the plan";

(c) by omitting from subsection (1)(b) "timber harvesting";

(d) by omitting from subsection (1)(c) "approved timber harvesting";

(e) by omitting from subsection (1)(d) "his" and substituting "the person's";

(f) by omitting from subsection (1)(d) "approved timber harvesting";

(g) by omitting from subsection (1)(e) "approved timber harvesting";

(h) by omitting from subsection (2)(a) "approve a timber harvesting plan" and substituting "certify a forest practices plan".

23.    Section 25A inserted

After section 25 of the Principal Act , the following section is inserted in Division 1:

25A.   Certificate of compliance

A person who applied under section 18 for the certification of a certified forest practices plan must, within the period of 30 days after the expiration of the period during which forest practices were authorised to be carried out under the plan, lodge a certification, in a form approved by the Board, as to whether or not the plan has been complied with.

Penalty:  Fine not exceeding 10 penalty units.

24.    Section 27 amended (Three-year plans)

Section 27 of the Principal Act is amended as follows:

(a) by inserting the following subsection after subsection (1) :

(1A)  If the Board is able to determine in advance that a person is likely to be subject to the requirements of subsection (1) , it may consult with and advise that person on the information to be included in the three-year plan and on the presentation of that information having regard to the relevant land tenures and harvesting operations.

(b) by omitting from subsection (2) "shall contain details of –" and substituting "is to contain information with respect to  –";

(c) by omitting from subsection (2)(a) "(other than Crown land)";

(d) by omitting from subsection (2)(a) "harvested;" and substituting "harvested; and";

(e) by omitting from subsection (2)(c) "location –" and substituting "location; and";

(f) by inserting the following paragraph after paragraph (c) in subsection (2) :

(d) the reafforestation measures that are proposed for the location or locations from which timber is intended to be harvested  –

(g) by omitting from subsection (4)(a) "an approved timber harvesting plan or approved timber harvesting plans" and substituting "a certified forest practices plan or certified forest practices plans";

(h) by omitting from subsection (4)(b) "timber harvesting plan for approval" and substituting "forest practices plan for certification".

25.    Section 28 amended (Power of Board to call conference for purpose of varying three-year plan)

Section 28 of the Principal Act is amended as follows:

(a) by omitting from subsection (3)(a) "an approved timber harvesting plan or approved timber harvesting plans" and substituting "a certified forest practices plan or certified forest practices plans";

(b) by omitting from subsection (3)(b) "timber harvesting plan for approval" and substituting "forest practices plan for certification";

(c) by omitting from subsection (6)(a) "an approved timber harvesting plan or approved timber harvesting plans" and substituting "a certified forest practices plan or certified forest practices plans";

(d) by omitting from subsection (6)(b) "timber harvesting plan for approval" and substituting "forest practices plan for certification".

26.    Section 32 amended (Amendment, &c., of Forest Practices Code)

Section 32(4)(c)(i) of the Principal Act is amended by omitting "Forestry corporation" and substituting "Board".

27.    Section 35 amended (Registry of the Forest Practices Tribunal)

Section 35 of the Principal Act is amended as follows:

(a) by omitting from subsection (1) "Forestry corporation" and substituting "Board";

(b) by omitting subsections (2) and (3) and substituting the following subsection:

(2)  A person appointed or employed under section 4L is to be appointed as registrar to the Registry of the Tribunal and that person may hold that office in conjunction with his or her position under the Tasmanian State Service Act 1984 .

28.    Section 37A amended (Forest Practices Advisory Council)

Section 37A of the Principal Act is amended as follows:

(a) by omitting subsections (2) and (3) and substituting the following subsections:

(2)  The Council consists of –

(a) the chairperson of the Board, or that person's nominee; and

(b) a person with knowledge of the State's resource management and planning system, nominated by the Secretary of the responsible Department in relation to the Environmental Management and Pollution Control Act 1994 ; and

(c) a person with knowledge of administration and legislation in relation to private forests, nominated by Private Forests Tasmania; and

(d) a person with knowledge of administration and legislation in relation to multiple use forests, nominated by the Forestry corporation; and

(e) a person with expertise in, and experience of, forest issues in relation to harvesting and processing; and

(f) a person with expertise in, and experience of, forest issues in relation to forest conservation; and

(g) a person with expertise in, and experience of, tree growing on private land.

(3)  The members referred to in subsection (2)(b) , (c) , (d) , (e) , (f) and (g) are appointed by the Minister.

(b) by omitting subsections (5) , (6) , (7) , (8) , (9) and (10) .

29.    Section 39A repealed

Section 39A of the Principal Act is repealed.

30.    Section 40 amended (Powers, &c., of forest practices officers)

Section 40(1) of the Principal Act is amended by inserting after paragraph (a) the following paragraph:

(ab) on any land on which, in the reasonable opinion of the forest practices officer, forest practices appear to have been carried out, to determine whether those forest practices were in fact carried out and, if so, whether they were carried out in accordance with certified forest practices plans relating to that land or the provisions of this Act were complied with; or

31.    Section 41 amended (Failure to comply with certified forest practices plan)

Section 41 of the Principal Act is amended as follows:

(a) by omitting from subsection (1) "are not being" second occurring and substituting "have not been";

(b) by omitting from subsection (1) "being" third occurring;

(c) by inserting the following subsection after subsection (1) :

(1A)  A request under subsection (1) may be made –

(a) at any time while the relevant certified forest practices plan is in force; or

(b) at any time in the 12-month period immediately after the day on which the relevant certified forest practices plan ceases to be in force.

(d) by omitting from subsection (2) "being carried out on that land, direct that person to –" and substituting "carried out on that land, direct that person to do such one or more of the following as may be appropriate in the circumstances:";

(e) by omitting from subsection (2)(b) "and" third occurring;

(f) by omitting subsection (5A) .

32.    Section 42 amended (Appeal to Tribunal by person aggrieved by notice served under section 41(2))

Section 42 of the Principal Act is amended by omitting subsection (5A) .

33.    Section 44 amended (Costs and expenses of Act)

Section 44(1)(b) of the Principal Act is amended by omitting " section 4F " and substituting " section 4X ".

34.    Sections 45A and 45B inserted

After section 45 of the Principal Act , the following sections are inserted in Part VI:

45A.   Seal of Board

(1)  The seal of the Board is to be kept and used as authorised by the Board.

(2)  All courts and persons acting judicially must take judicial notice of the imprint of the seal on a document and presume that it was duly sealed by the Board.

45B.    Land Acquisition Act 1993 does not apply

The Board is not a public authority for the purposes of the Land Acquisition Act 1993 .

35.    Section 46 amended (Service of notices and other documents)

Section 46 of the Principal Act is amended by omitting subsection (2) and substituting the following subsection:

(2)  A notice, application or other document required by this Act to be served on the Board may be served on –

(a) the Board; or

(b) the chief forest practices officer.

36.    Section 47B amended (Alternative to prosecution)

Section 47B of the Principal Act is amended as follows:

(a) by omitting from subsection (2) "but the circumstances do not merit the imposition of a penalty";

(b) by omitting subsection (3) and substituting the following subsections:

(3)  The Board must establish and maintain a fund for the purposes of this section.

(4)  Prescribed fines are to be paid into the fund and are, for the purposes of section 44(2) , taken to be at the disposal of the Board.

37.    Section 47D inserted

After section 47C of the Principal Act , the following section is inserted in Part VI:

47D.   Salvage of illegally harvested timber

(1)  If a person is found guilty or convicted of an offence under section 17(4) or (5) , section 21(1) or section 41(5) in relation to any timber, the Board, notwithstanding that the timber may have been harvested contrary to, or not in compliance with, the provisions of this Act or the Forest Practices Code, may allow another person to purchase or acquire that timber.

(2)  In determining whether or not to exercise its power under subsection (1) the Board may have regard to such matters as it thinks fit in the circumstances, but it must have regard to the following considerations:

(a) if the offender is the owner of the timber –

(i) the seriousness of the offence and the offender's record of compliance with the Act and the Forest Practices Code; and

(ii) the amount of any financial benefit likely to accrue to the offender if the Board exercises the power;

(b) the amount of any financial loss likely to be suffered by an innocent party if the Board does not exercise its power;

(c) the nature of the relationship between the offender, the owner of the land (if the owner is not the offender) and any timber processor or other person who has expressed an interest in buying or acquiring the timber;

(d) the quantity and quality of the timber;

(e) whether the timber is likely to be wasted if it is not sold or acquired;

(f) the regeneration or reafforestation requirements of the land on which the timber was harvested.

(3)  A timber processor or other person who purchases or acquires any timber pursuant to the exercise by the Board of its power under this section does not commit an offence against this Act or the Forest Practices Code by reason only of that purchase or acquisition.

(4)  This section has effect notwithstanding any other provision of this Act.

38.    Schedule 3 amended (Provisions with Respect to Membership of Board)

Schedule 3 to the Principal Act is amended as follows:

(a) by omitting clause 1 and substituting the following clauses:

1.   Interpretation

In this Schedule –

appointed member means a member of the Board referred to in section 4A(1)(d) or (e) ;

member means a member of the Board and includes the chairperson.

1A.   Term of appointment

An appointed member is to be appointed for such term, not exceeding 3 years, as is specified in the member's instrument of appointment and, if otherwise qualified, is eligible for reappointment.

(b) by inserting the following clauses after clause 2 :

2A.   Termination of appointment

The Minister may terminate the appointment of an appointed member if the member –

(a) is absent from 4 consecutive meetings of the Board without the permission of the Board; or

(b) becomes mentally or physically incapable of performing the duties of a member; or

(c) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with the member's creditors or makes an assignment of the member's remuneration or estate for their benefit; or

(d) is convicted, in Tasmania or elsewhere, of an offence punishable by imprisonment for 2 years or longer; or

(e) is convicted of an offence against this Act or the Forestry Act 1920 ; or

(f) fails, without reasonable excuse, to comply with the obligations referred to in clause 5 .

2B.   Resignation

An appointed member may resign by signed notice given to the Minister.

39.    Schedule 5 amended (Provisions with Respect to Membership of Council)

Clause 1 of Schedule 5 to the Principal Act is amended by omitting " section 37A (2) (b) , (c) , (d) , (e) , (f) or (g) ." and substituting " section 37A(2)(b) , (c) , (d) , (e) or (f) .".

40.    Schedule 7 amended (Objective of the Forest Practices System of Tasmania)

Schedule 7 to the Principal Act is amended by omitting "timber harvesting plans" from paragraph (c) and substituting "forest practices plans".

41.   Substitution: a certified forest practices plan

Each of the provisions of the Principal Act specified in Column 1 of Schedule 2 is amended by omitting "an approved timber harvesting plan" on the number of occurrences specified in Column 2 of that Schedule and substituting "a certified forest practices plan".

42.   Substitution: certification

Each of the provisions of the Principal Act specified in Column 1 of Schedule 3 is amended by omitting "approval" on the number of occurrences specified in Column 2 of that Schedule and substituting "certification".

43.   Substitution: certified forest practices plan

Each of the provisions of the Principal Act specified in Column 1 of Schedule 4 is amended by omitting "approved timber harvesting plan" on the number of occurrences specified in Column 2 of that Schedule and substituting "certified forest practices plan".

44.   Substitution: forest practices plan

Each of the provisions of the Principal Act specified in Column 1 of Schedule 5 is amended by omitting "timber harvesting plan" on the number of occurrences specified in Column 2 of that Schedule and substituting "forest practices plan".

45.    National Parks and Wildlife Act 1970 amended

Section 37A of the National Parks and Wildlife Act 1970 is amended as follows:

(a) by omitting "approval of a timber harvesting plan" from the definition of affected owner and substituting "certification of a forest practices plan";

(b) by omitting "timber harvesting plan" from paragraph (c) of the definition of affected owner and substituting "forest practices plan";

(c) by omitting the definition of Forest Practices Board and substituting the following definition:

Forest Practices Board means the board of that name established under the Forest Practices Act 1985 ;

(d) by inserting the following definition after the definition of Forest Practices Code, 1987 :

forest practices plan means a forest practices plan within the meaning of the Forest Practices Act 1985 ;

(e) by omitting the definition of timber harvesting plan .

46.    National Parks and Wildlife Act 1970 amended

Section 37F of the National Parks and Wildlife Act 1970 is amended as follows:

(a) by omitting from subsection (7) "approval of the relevant timber harvesting plan" and substituting "certification of the relevant forest practices plan";

(b) by omitting from subsection (8) "timber harvesting plan" and substituting "forest practices plan";

(c) by omitting from subsection (8)(a) "approve" and substituting "certify";

(d) by omitting from subsection (8) "approved" and substituting "certified".

47.    Forestry Act 1920 amended

Section 4(1) of the Forestry Act 1920 is amended by omitting the definition of Forest Practices Board .

48.    Forestry Act 1920 amended

Division 8 of Part II of the Forestry Act 1920 is repealed.

49.   Savings and transitional provisions

The savings and transitional provisions set out in Schedule 1 have effect.

SCHEDULE 1 - Savings and transitional provisions

section 49

1.   Interpretation

In this Schedule –

Amendment Act means the Forest Practices Amendment Act 1999 ;

commencement day means the day on which the Amendment Act commences;

Former Act means the Forest Practices Act 1985 as in force immediately before the commencement day;

Former Board means the Forest Practices Board as constituted, as a division of the Forestry corporation, immediately before the commencement day;

former employee means a person who, immediately before the commencement day, was an employee of the Forestry corporation;

New Act means the Forest Practices Act 1985 as amended by the Amendment Act;

New Board means the Forest Practices Board as constituted under the New Act;

State Service employee means an employee within the meaning of the Tasmanian State Service Act 1984 ;

transferred employee means a former employee who becomes a State Service employee for the purposes of the New Act by the operation of clause 10 of this Schedule.

2.   Continuation of appointments, &c.

(1) Notwithstanding the amendment of the Former Act by the Amendment Act  –

(a) all persons, things or circumstances appointed, authorised, approved or created by or under the Former Act and existing or continuing under the Former Act immediately before the commencement day continue, under and subject to the New Act, to have the same status, operation and effect as they respectively had under the Former Act; and

(b) all determinations, decisions, declarations and directions of the Former Board, the Tribunal or a forest practices officer made or given under the Former Act and in force immediately before the commencement day continue, under and subject to the New Act, to have the same force and effect as they respectively had under the Former Act.

(2) Without limiting the generality of subclause (1)  –

(a) any land that had the status of a private timber reserve under the Former Act immediately before the commencement day continues to have that status under and subject to the New Act; and

(b) an approved timber harvesting plan in force under the Former Act immediately before the commencement day continues in force as a certified forest practices plan under and subject to the New Act; and

(c) the Forest Practices Code in force under Part IV of the Former Act immediately before the commencement day continues in force as the Forest Practices Code under and subject to the New Act; and

(d) a person who, immediately before the commencement day, was authorised to be a forest practices officer under the Former Act continues to be authorised as a forest practices officer under and subject to the New Act; and

(e) if, before the commencement day, the Tribunal had directed the Former Board to take an action pursuant to an appeal made to the Tribunal under the Former Act and the Former Board had not taken that action before the commencement day, the New Board must comply with that direction as if it were a direction given by the Tribunal to the New Board under the New Act.

3.   Saving of acts, &c.

(1) Except as provided by clause 2 , all acts, matters and things done or omitted by, or done or suffered in relation to, the Former Board, the Tribunal or a forest practices officer under the Former Act have the same force and effect on and after the commencement day as if they had been done or omitted by, or done or suffered in relation to, the New Board, the Tribunal or a forest practices officer, as the case requires, under the New Act.

(2) Without limiting the generality of subclause (1)  –

(a) an application made under section 5(1) , 14(1) , 18(1) or 23(1) of the Former Act and not determined by the Former Board before the commencement day is an application under the same section of the New Act; and

(b) an objection made under section 7(1) of the Former Act and not considered by the Former Board before the commencement day is an objection under the same section of the New Act; and

(c) any representations submitted under section 7(3) of the Former Act and not considered by the Former Board before the commencement day are representations under the same section of the New Act; and

(d) an appeal made under section 9(1) , (2) , 13(2) , 14(7) , 25(1) , 29(1) or 42(1) of the Former Act and not determined by the Tribunal before the commencement day is an appeal pending before the Tribunal under the same section of the New Act; and

(e) a conference arranged by the Former Board under section 28(1) of the Former Act and not concluded before the commencement day is a conference under the same section of the New Act.

4.   Preservation of entitlements

(1) For the purposes of clause 3(2)(a) in its application to an application under section 5(1) of the Former Act –

(a) a person who, immediately before the commencement day, was entitled to lodge an objection with the Former Board under section 7(1) of the Former Act in respect of that application is entitled to lodge that objection with the New Board under the same section of the New Act; and

(b) a person who, immediately before the commencement day, was entitled to submit representations to the Former Board under section 7(3) of the Former Act in respect of an objection may submit those representations to the New Board under the same section of the New Act.

(2) A person who, immediately before the commencement day, was entitled to appeal to the Tribunal in respect of a matter under the Former Act is entitled to appeal to the Tribunal in respect of that matter under the New Act.

(3) A person who, immediately before the commencement day, was entitled to compensation under section 16 of the Former Act has, if that compensation had not been paid before that day, the same entitlement to compensation under the same section of the New Act.

(4) A person who, immediately before the commencement day, was entitled under the Former Act to inspect any document or plan at the office of the Forestry corporation is, subject to and in accordance with the New Act, entitled to inspect that document or plan at the office of the New Board.

5.   Prosecutions

(1) Any proceedings that were instituted against a person before the commencement day in respect of an offence against the Former Act may, if not concluded by that day, be continued as if the Former Act had not been amended by the Amendment Act.

(2) Any proceedings that could have been instituted against a person before the commencement day in respect of an offence against the Former Act may be instituted as if the Former Act had not been amended by the Amendment Act.

6.   Civil proceedings

On and after the commencement day –

(a) civil proceedings pending immediately before that day which were instituted by the Forestry corporation under the Former Act are taken to be civil proceedings pending on that day which were instituted by the New Board under the New Act; and

(b) civil proceedings pending immediately before that day which were instituted by any person against the Forestry corporation under the Former Act are taken to be civil proceedings pending on that day which were instituted by that person against the New Board; and

(c) civil proceedings which could have been instituted by the Forestry corporation to enforce an obligation that was required to be performed or a right that had accrued before that day under the Former Act may be instituted by the New Board under the New Act; and

(d) civil proceedings which could have been instituted by a person against the Forestry corporation to enforce an obligation that was required to be performed or a right that had accrued before that day under the Former Act may be instituted by that person against the New Board under the New Act.

7.   Judgments and orders

On and after the commencement day –

(a) any judgment or order of a court obtained by the Forestry corporation under the Former Act and not executed before that day is taken to be a judgment or order in favour of the New Board under the New Act; and

(b) any judgment or order of a court obtained by a person against the Forestry corporation and not executed or satisfied before that day is taken to be a judgment or order against the New Board under the New Act.

8.   Transfer of debts, &c.

On and after the commencement day –

(a) all money, debts and claims, liquidated or unliquidated, that, immediately before that day, were payable to, due to or recoverable by the Forestry corporation under the Former Act are taken to be money, debts or claims payable to, due to or recoverable by the New Board under the New Act; and

(b) all money, debts and claims, liquidated or unliquidated, that, immediately before that day, were payable by, due from or recoverable against the Forestry corporation under the Former Act are taken to be money, debts or claims payable by, due from or recoverable against the New Board under the New Act; and

(c) the New Board may enforce and realise any security existing immediately before that day in favour of the Forestry corporation under the Former Act as if the security were a security in favour of the New Board.

9.   Service of notices

Except as may be otherwise required for the purposes of any transitional proceedings or other transitional matters referred to in this Schedule, on and after the commencement day –

(a) a document which was addressed to and which was purported to have been served on or notified to the Forestry corporation or the Former Board for the purposes of the Former Act and which, whether by virtue of this Act or otherwise, had not ceased to have effect immediately before that day is taken to have been served on or notified to the New Board; and

(b) any document which was addressed to and which was purported to have been served on or notified to a person by or on behalf of the Forestry corporation or the Former Board for the purposes of the Former Act and which, whether by virtue of this Act or otherwise, had not ceased to have effect immediately before that day is taken to have been served on or notified to that person by the New Board.

10.   Staff

(1) On or before the commencement day, the Minister must specify, by notice published in the Gazette, which former employees are to become State Service employees for the purposes of the New Act.

(2) On the commencement day, the former employees specified by the Minister under subclause (1) cease to be employees of the Forestry corporation and become State Service employees.

(3) On the commencement day, a transferred employee –

(a) is taken to have been employed under the Tasmanian State Service Act 1984 under the same terms and conditions as he or she was employed under immediately before that day; and

(b) except where an award, agreement or any other law provides otherwise, retains all existing and accruing rights relating to leave as if service as an employee under the Tasmanian State Service Act 1984 were a continuation of his or her service with the Forestry corporation.

11.   Chief forest practices officer

(1) The person who was the chief forest practices officer under the Former Act immediately before the commencement day is to be appointed under section 4J (1) of the New Act as the first chief forest practices officer under the New Act. 

(2) The person referred to in subclause (1) is –

(a) to be appointed as chief forest practices officer under the New Act for at least the same remuneration as applied to that person's appointment as chief forest practices officer under the Former Act; and

(b) when appointed under the New Act, taken to have retained all existing and accruing rights relating to leave that the person had acquired immediately before that day as chief forest practices officer, as if his appointment under the New Act were a continuation of his appointment under the Former Act.

12.   Agreement on financial matters

(1) On or after the commencement day, the Minister, the Treasurer and the Minister administering the Forestry Act 1920 , after seeking advice from the Forestry corporation and the Retirement Benefits Fund Board and any other Minister or person or body, may enter into an agreement in relation to –

(a) the superannuation liabilities of the Forestry corporation and the State in relation to transferred employees and the chief forest practices officer; and

(b) the liabilities of the Forestry corporation and the State in relation to accrued leave entitlements of transferred employees and the chief forest practices officer; and

(c) any other matter affecting any assets or liabilities of the Crown or the Forestry corporation that the Treasurer and Minister consider to be of a savings or transitional nature or to have arisen as a consequence of this Act.

(2) In exercising power under subclause (1) , the Minister, the Treasurer and the Minister administering the Forestry Act 1920 must have regard to the principle that transferred employees, and the person appointed as chief forest practices officer pursuant to clause 11 , should not be disadvantaged as a consequence of the enactment of this Act.

(3) An agreement referred to in subclause (1) is binding on the Forestry corporation.

13.   Savings and transitional regulations

(1) On and after the commencement day, the Governor may make regulations for the purposes of this Act.

(2) Without limiting the generality of subclause (1) , the Governor may make regulations under that subclause  that –

(a) give effect to an agreement referred to in clause 12 ; or

(b) contain provisions of a savings or transitional nature consequent on the enactment of this Act.

(3) A regulation referred to in subclause (2)(b) may take effect on and from the commencement day or a later day.

SCHEDULE 2 - Substitution: a certified forest practices plan

Section 41

SCHEDULE 3 - Substitution: certification

Section 42

SCHEDULE 4 - Substitution: certified forest practices plan

Section 43

SCHEDULE 5 - Substitution: forest practices plan

Section 44

[Second reading presentation speech made in:

House of Assembly on 25 MARCH 1999

Legislative Council on 27 APRIL 1999]