Forests (Laminex Industries Agreement) Act 1989 (Vic)
Version No. 001
Forests (Laminex Industries Agreement) Act 1989
Act No. 82/1989
Version as at 3 March 2003
table of provisions
Section Page
1.Purpose
2.Commencement
3.Definition
4.Act to bind the Crown
5.Ratification of Agreement
6.Amendment of termination of Agreement
7.Repeal of 1969 Act
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SCHEDULE—Laminex Industries Agreement
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ENDNOTES
1. General Information
2. Table of Amendments
3. Explanatory Details
Version No. 001
Forests (Laminex Industries Agreement) Act 1989
Act No. 82/1989
Version as at 3 March 2003
Preamble
The Treasurer, the Minister for Conservation, Forests and Lands, the Director-General of Conservation, Forests and Lands and Laminex Industries have agreed to certain arrangements for the supply of softwood round timber to Laminex Industries from the Ballarat and Otways Softwood Management areas:
It is expedient to ratify the Agreement.
The Parliament of Victoria therefore enacts as follows:
1.Purpose
The purpose of this Act is to ratify an Agreement with Laminex Industries for the supply of softwood round timber from the Ballarat and Otways Softwood Management areas:
2.Commencement
This Act comes into operation on 1 January 1990.
3.Definition
In this Act, "Agreement" means the Agreement a copy of which is set out in the Schedule.
4.Act to bind the Crown
This Act binds the Crown.
5.Ratification of Agreement
(1)The Agreement is ratified and takes effect as if its provisions had been expressly enacted in this Act.
(2)The Director-General of Conservation, Forests and Lands is empowered to carry out the Agreement or the Agreement as amended from time to time.
6.Amendment of termination of Agreement
If the Agreement is amended or terminated in accordance with its provisions, the Minister must cause a report giving details of the amendment or termination to be laid before each House of the Parliament before the expiration of the fourteenth sitting day of that House after the Agreement is amended of terminated.
7.Repeal of 1969 Act
The Forests (Softwood Timber Agreement) Act 1969 is repealed.
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SCHEDULE
s. 3
Laminex Industries Agreement
This agreement is made the 18th day of October One thousand, nine hundred and eighty nine
between:
The Treasurer, State of Victoria,
of the first part
and:
The Minister for Conservation, Forests and Lands
of the second part
and:
Director-General of Conservation, Forests and Lands incorporated by the provisions of the Conservation, Forests and Lands Act 1987 of the State of Victoria
of the third part
and:
ACI Australia Limited which is a Company incorporated in the State of Victoria and having its registered office at 390 St Kilda Road, Melbourne and trading as "Laminex Industries".
of the fourth part
WHEREAS:
I.The Company has for some time been engaged in large scale operations in connection with the manufacture of particle board at Ballarat in the State of Victoria.
II.The Company desires to be satisfied that sufficient softwood timber will be available to it over a period of time which will enable it to continue its operations at Ballarat.
III.The Government of the State of Victoria desires to provide a means by which the Company can be assured to its long term supply of softwood timber and which also ensures that the public of Victoria receives an adequate return to cover the costs of certain forest production activities.
IV.The parties hereto desire to enter into this Agreement so that upon an enabling Act being passed by Parliament and coming into operation the provisions hereinafter appearing shall have full force.
Now it is hereby agreed as follows:
PART I—PRELIMINARY
1.In this Agreement unless inconsistent with the context or subject matter:
"the Act", means the Act of the Parliament of Victoria to be passed to ratify, validate, approve and otherwise give effect to this Agreement;
"this Agreement" includes this Agreement as from time to time amended, supplemented or novated and includes all Schedules hereto and conditions which the Director-General shall from time to time determine to apply in accordance with Clause 23;
"area of supply" means softwood plantations existing from time to time in State forest within the area delineated on the map annexed hereto;
"Director-General" means the body corporate established by Part 2, Conservation, Forests and Lands Act 1987;
"Company" means ACI Australia Limited trading as Laminex Industries, and if in accordance with Clause 4 of this Agreement a subsidiary company is incorporated or the rights of the Company are assigned to any company includes that subsidiary or assignee company;
"date of commencement" means the same day as the date of commencement of the Act;
"forest officer" has the same meaning as in the Forests Act 1958;
"forest produce" has the same meaning as in the Forests Act 1958;
"the industry" means the manufacture by the Company near Ballarat of particle board from softwood timber;
"minimum annual supply" means 70 000 cubic metres per annum of softwood timber;
"Minister" means Minister for Conservation, Forests and Lands;
"month" means calendar month;
"softwood timber" means timber of the species Pinus radiata, Pinus nigra, Pseudotsuga menziesii and other species suitable for the manufacture of particle board but does not include any timber which the Director-General requires for sale as sawlogs, veneer logs, poles or fencing timber;
"roading charge" means the charge determined by the Director-General which is levied from time to time on all forest product extracted from forests to cover the cost of maintenance, improvement and construction of forest logging roads;
"State forest" has the same meaning as in the Forests Act 1958;
"year" means a period of twelve months commencing on the first day of July.
2.(1) In this Agreement unless inconsistent with the context or subject matter references to any Act shall include all amendments and re-enactments thereof for the time being in force and all supplemental legislation for the time being in force whether by regulation, rule, proclamation or order made or continuing under that Act or any amendment or re-enactment thereof.
(2)The headings and side notes shall not affect the interpretation of this Agreement.
3.This Agreement shall not be of any force or effect until it has been ratified validated, approved and otherwise given effect by an Act of the Parliament of Victoria.
4.(1) The Company shall be at liberty at any time with the prior written consent of the Director-General to assign its rights under this Agreement to a subsidiary company or any other company.
(2)After such assignment the following provisions shall have effect:
(a)The subsidiary or assignee company shall by virtue of the Act be subject to all the obligations and conditions imposed upon the Company by this Agreement so far as they remain in force and are capable of taking effect.
(b)The Company shall remain responsible to the Director-General for the performance of all its obligations under this Agreement as if no subsidiary company had been formed or assignment made.
PART II—OPERATION OF INDUSTRY
Division A—Duration of Agreement
5.This Agreement shall remain in force until 30 June 2010 or until sooner determination in accordance with the provisions hereof.
6.The expiration or determination of this Agreement shall not affect the enforcement of any right, obligation or liability theretofore acquired, accrued or incurred.
Division B—Timber Rights
7.Nothing in this Agreement shall affect the rights, powers and privileges already acquired by any person under the Forests Act 1958 or any other Act.
8.Subject to the right of the Company under sub-clause (1) of Clause 11 hereof to obtain softwood timber in the area of supply and subject to compliance by the Director-General with obligations under paragraph (a) of Clause 12 hereof to make available to the Company the minimum annual supply of softwood timber nothing in this Agreement shall restrict the Director-General's rights pursuant to the Forests Act 1958 to sell or grant licences to obtain forest produce.
9.(1) Not later than the thirty-first day of March in each year the Director-General shall draw up and deliver to the Company a plan of utilisation for the supply of softwood timber for the following year and a provisional plan for the supply of softwood timber for the next two years.
(2)The plan of utilisation and the provisional plan shall set out the locations from which softwood timber may be obtained during the relevant period and shall specify the specific location area in hectares and the respective quantities of softwood timber which the Director-General estimates will be obtainable in each area.
(3)The Director-General and the Company may during the currency of any plan of utilisation agree to a modification of the plan.
(4)The Company shall conform with each plan or modified plan of utilisation.
10.The Company shall comply with the provisions of the Forests Act 1958, with all regulations for the time being in force under the Forests Act and with the Code of Forest Practices for Timber Production and other relevant Codes of Practice for the time being in force under the Conservation, Forests and Lands Act 1987.
11.(1) Subject to the provisions of this Agreement the Company without obtaining any lease permit or authority shall have the right to obtain softwood timber by its servants, agents or contractors from the area of supply.
(2)The Company shall obtain softwood timber from—
(a)heads and other parts of trees remaining from logging and pole and post cutting operations;
(b)all standing trees indicated by a forest officer; and
(c)as required by the Director-General from timber felled or felled and removed by or on behalf of the Director-General.
(3)The Director-General may in its discretion if so requested by the Company modify the Company's obligation to take softwood timber felled or felled and removed by or on behalf of the Director-General but any of such timber not taken by the Company shall for the purposes of paragraph (a) of Clause 12 hereof be softwood timber made available to the Company by the Director-General.
12.The Director-General—
(a)shall subject to the provisions of Clause 26 hereof be bound in each year to make available to the Company the minimum annual supply of softwood timber from the area of supply; and
(b)may in its discretion make available to the Company in any year a quantity of softwood timber from the area of supply additional to the minimum annual supply.
13.The company shall not be bound to accept any softwood timber which—
(a)is not sound, clean and free from rot doze blue stain and charcoal;
(b)is not sufficiently straight for the manufacturing processes for the time being employed in the industry due to—
(i)sweep equal to or exceeding twice the centre diameter underbark for a 3·0 m log length;
(ii)presence of forks or swellings where the log diameter varies by more than 30% over a 1·0 m length;
(iii)bends involving deviation of the longitudinal axis of the log in excess of 20º over a 1·0 m length;
(c)is less than 3·0 metres in length or such other minimum length as is agreed to from time to time by the Director-General and the Company; or
(d)is less than 10 cms or more than 40 cms in sectional dimension underbark.
14.(1) For all softwood timber obtained by it under this Agreement the Company shall pay—
(a)as to softwood timber which the Company by its servants, agents or contractors removes or fells and removes the royalty and roading charges payable from time to time under this Agreement; and
(b)as to softwood timber either felled or felled and removed by or on behalf of the Director-General the royalty and roading charges as aforesaid and a charge to be agreed upon from time to time between the Director-General and the Company for—
(i)the cost to the Director-General of felling and removal of softwood timber in or from the particular area; and
(ii)the overhead expenses of the Director-General in connection therewith.
(2)Failing agreement within fourteen days on the charge referred to in paragraph (b) of sub-clause (1) hereof the charge shall be determined by the Director-General but so that the charge for the cost of felling or felling and removal of softwood timber in or from any area shall be comparable to the cost generally incurred by the Company for felling and felling and removal (as the case may be) of softwood timber at that time in similar form in or from areas which are similar with respect to yield of softwood sawlogs physical circumstances of extraction and situation in regard to means of transport provided that the arbitration provisions in Clause 27(3) shall be applicable to the Director-General's determination.
15.(1) Subject to the provisions of Clause 26 hereof the Company shall be bound in each year in which the minimum annual supply of softwood timber to which it is entitled in that year is available to it either—
(a)to take not less than 90 per centum of the minimum annual supply; or
(b)if it takes less than 90 per centum of the minimum annual supply to pay royalty to the Director-General on the deficiency at a rate equal to the average of the royalty rates payable in that year under Clause 17 or 18 hereof.
(2)If the Company during either or both of the two years next following any year in which there is a deficiency obtains a quantity of softwood timber in excess of the minimum annual supply the royalty payable on such excess shall be reduced by the amount of royalty paid in respect to the deficiency.
16.The following provisions shall apply with respect to royalty and roading charges payable under this Agreement:
(a)Royalty and roading charges shall be payable after the amounts have been ascertained by weighing and/or measuring in accordance with this Agreement.
(b)Accounts for royalty and roading charges shall be issued monthly.
(c)An account issued for royalty and roading charges is due for payment immediately it is rendered and becomes overdue if not paid by 30 days from the date the account is rendered.
(d)If royalty and roading charges are not paid after becoming overdue the Company shall pay interest on the sum due but unpaid from the date the sum became overdue at the rate for the time being fixed under Section 30 of the Conservation, Forests and Lands Act 1987.
(e)If an account for royalty and roading charges remains overdue for more than 14 days the Director-General may without limiting the obligations of the Company under Clause 15 hereof by notice in writing to the Company suspend its right to obtain softwood timber under this Agreement until payment is made.
(f)If the Company disputes the amount of any payment demanded by the Director-General it may make the payment under protest and thereafter shall be entitled to take proceedings for recovery of any amount in excess of the amount it was liable to pay.
17.(1) During the period from the date of commencement of this Agreement to 30 June 1993 the combined royalty and roading charges payable shall be at the rates set out in the Schedule to this Agreement.
(2)During each successive period of three years thereafter the royalty rates and the roading charges payable shall be determined separately as provided for in Clauses 18 and 19.
18.(1) In respect of each successive three year period from 1 July 1993 the royalty payable shall be at the rates agreed upon by the Director-General and the Company, and failing agreement not later than fourteen days after the next publication by the Commonwealth Bureau of Statistics of figures referred in sub-clause (2), to be determined as provided for below.
(2)In the event of failure to agree on or before the date provided for in sub-clause (1) the royalty rates will be calculated by varying the royalty rates payable during the preceding period of three years in the same proportion as the average of the proportional variation in the figures at the beginning and the end of that period in regard to—
(a)the Average Weekly Earnings per Employed Male Unit: Victoria; and
(b)the Price Index of materials based in building other than house building: Wood and Wood Products.
Published by the Commonwealth Bureau of Census and Statistics
Provided that in respect of the royalty rates to be determined for the period 1 July 1993 to 30 June 1996 for the purpose of determining the royalty rates payable during the preceding period of three years, the Director-General will subtract the roading charge determined by it for the Ballarat Softwood Management Area for the period 1 July 1992 to 30 June 1993 from the royalty and roading charges set out in the Schedule to this Agreement.
(3)If the Commonwealth Bureau of Census and Statistics ceases to publish the figures referred to in either paragraph (a) or (b) or sub-clause (1) hereof a new method of calculating any variation in the royalty rates shall be agreed upon by the Director-General and the Company or failing agreement shall be determined by the Director-General.
(4)If any variation in the royalty rates is not determined prior to the commencement of any new three yearly period the Company shall continue to pay royalty at the rates payable during the preceding three yearly period and as soon as the new rates have been determined an adjustment on the sum due shall be made retrospectively to the commencement of the new three yearly period. The Director-General may in his discretion determine that interest shall be payable in addition to the retrospective payments.
19.With respect to each successive three year period from 1 July 1993 a roading charge shall be payable on all softwood timber removed the amount of which is to be a charge per cubic metre determined by the Director-General from time to time in light of projected expenditure on timber extraction roads accessing softwood plantations in the Ballarat and Otways Softwood Management Areas and regard to advice of the Forest Management Area Roading Advisory Committees on which the Company may at its option be represented.
20.(1) From 1 July 1990 in addition to royalty and roading charges payable in accordance with Clause 14 hereof an annual licence fee shall be paid by the Company to the Director-General as provided for in this clause with respect to the right of the Company to cut and remove softwood timber as provided in Clause 11(2) hereof.
(2)The annual licence fee with respect to softwood required to be made available to meet the minimum annual supply will be due and payable on the 30th day of June. The Director-General may in his discretion determine that the annual fee may be paid in six monthly instalments.
(3)The annual licence fee shall be at the rate of $1.00 per cubic metre for the year commencing 1 July 1990 ("the base fee") and for each of the years commencing on the first day of July for the following two years the base fee will be adjusted in the same percentage rate as the rate of change in the royalty rate for that year.
(4)The amount of annual licence fee will be reviewed between 1 April 1993 and 30 June 1993 and thereafter between the first day of April and the 30th day of June at successive three yearly intervals and so that—
(a)a review is to be conducted by the Director-General and the Company jointly;
(b)the review will establish if a new base fee shall apply and if so at what rate, for the succeeding three years;
(c)the review will take account of—
(i)the ongoing ability of the Company to maintain its competitive position in domestic and international panel products markets taking into account circumstances not of its own making;
(ii)changes in the average domestic market price of particle board relative to general cost increases in the community as measured by the consumer price index;
(iii)changes in the landed price of imported particle board and related products, relative to economy wide indices of capital and labour costs;
(iv)the benefit of the special rights granted to the Company under this Agreement;
(d)the review will last no longer than the 30th day of June in the year in which it commenced. In the event that agreement is not reached between the Director-General and the Company on or before that date the matter shall be determined by the Director-General;
(e)any new base fee so determined will be adjusted in each of the subsequent two years, similarly as set out in sub-clause (3) hereof.
21.The Company shall not within the area of supply construct any road track or passage or any chute without the prior written consent of a forest officer and shall not construct any tramway flume or building or erect any haulage or conversion unit without the prior written consent of the Director-General.
22.(1) The quantity of softwood timber upon which royalty and roading charges are payable under this Agreement shall be determined in such manner provided that allowance shall be made for bark as may be agreed upon by the Director-General and the Company or failing agreement within thirty days as the Director-General may direct.
(2)If the royalty and roading charges so payable are to be determined by mass—
(a)the Company shall provide at its Ballarat plant a weighbridge of a pattern which meets the requirements of the Weights and Measures Act 1958 and shall while this Agreement remains in force have the weighbridge maintained and periodically verified and stamped in accordance with the provisions of that Act and shall operate the weighbridge in accordance with the reasonable requirements of the Director-General;
(b)at all times while the weighbridge is in accurate working order the quantity of softwood timber upon which royalty and roading charges are payable under this Agreement shall be determined by weighing it on the weighbridge; and
(c)at all times while the weighbridge is not in accurate working order the quantity of softwood timber upon which royalty and roading charges are payable under this Agreement shall be determined in such manner as may be agreed upon by the Director-General and the Company or failing agreement as the Director-General may direct.
23.The Director-General may from time to time give to the Company written notice of conditions which shall apply in the areas from which it is obtaining softwood timber under this Agreement and the Company shall comply with the said conditions and ensure that any contractors who are engaged in obtaining softwood timber under this Agreement have notice thereof.
24.(1) The Company shall inform the Director-General in writing from time to time of the names of its servants, agents and contractors who are engaged in obtaining softwood timber under this Agreement.
(2)The Company shall supply to each person for production when required by a forest officer evidence in a form satisfactory to the Director-General that he is engaged in obtaining softwood timber under this Agreement and the Company shall forthwith inform the Director-General in writing whenever any such person ceases to be so engaged.
(3)(a) The Company shall include in every contract by it with a contractor for obtaining softwood timber under this Agreement provisions requiring the contractor to comply with the Forests Act 1958 the regulations made under the Act and the conditions referred to in Clause 23 hereof which are applicable to the contractor the conditions referred to in Clause 10(2) hereof which are applicable to that contractor and with the Code of Forest Practices for Timber Production and any other relevant Codes of Practice for the time being in force under the Conservation, Forests and Lands Act 1987.
(b)The Company shall upon making any such contract forthwith give to the Director-General written notice of the contract specifying the name of the contractor the duration of the contract and the quantity of and area from which softwood timber is to be obtained thereunder.
(4)The Company shall if so required by the Director-General terminate the contract of any contractor who in the opinion of the Director-General has failed to comply with the Forests Act 1958 the regulations made under the Act or the conditions referred to in Clause 23 hereof.
25.(1) In the first three months of the last year of this Agreement the Director-General shall if the Company seeks a further Agreement to assure to it supplies of softwood timber for the continuation and expansion of the industry investigate the development of the industry and if satisfied that the Company needs to have supplies of softwood timber assured to it by a further Agreement enter into negotiations with the Company for that purpose.
(2)When or if a further Agreement has been agreed upon and executed the Director-General shall (if necessary) recommend to the Minister that a Bill be introduced into the Parliament of Victoria as soon as possible to ratify, validate, approve and otherwise give effect to it.
Division C—Suspension of Obligations and Conditions
26.If any of the softwood plantations in the area of supply are damaged or destroyed by fire, disease or other cause to such an extent that it is impracticable for the Director-General to comply with the provisions of paragraph (a) of Clause 12 hereof or if by reason of anything whatsoever beyond the control of the Director-General it is prevented from complying with those provisions the Company shall have no claim against the Director-General for the non-fulfilment of its obligations under those provisions so far as non-fulfilment is due to any such cause.
27.(1) If—
(a)the Company's plant or any works used by it in the production of particle board near Ballarat are damaged or destroyed by fire or other calamity to an extent sufficient to prevent production of particle board for softwood timber at a rate not less than 250 tonnes per month;
(b)by reason of anything beyond the control of the Company it is prevented from carrying on production of particle board from softwood timber at a rate not less than 250 tonnes per month; or
(c)by reason of any change in the economics of the industry the carrying on of the industry becomes commercially impracticable or the continued performance by the Company of its obligations under Clause 15 hereof would affect it unfairly then in any of those events—
then sub-clause (2) shall apply.
(2)If any of the events specified in sub-clause (1) of this clause occur and continue for more than 30 days then—
(a)the company may apply to the Director-General for suspension or a reasonable modification of the extent or operation of the said obligations or for an extension of time for the performance or observance thereof;
(b)the Director-General upon any such application by the Company may grant a suspension of all or any of the said obligations or a reasonable modification of their extent or operation or an extension of time for their performance or observance;
(c)if the Company is dissatisfied with the decision of the Director-General upon any such application the matter shall if the Company so elects be submitted to arbitration.
(3)Arbitration pursuant to the preceding sub-clause shall be effected as follows:
(a)The matter shall be referred to two arbitrators one to be appointed by the Company and one by the Director-General.
(b)The provisions of the Commercial Arbitration Act 1984 shall apply to the reference.
(c)The arbitrators and any umpire appointed for the purpose of the reference shall decide what is fair and reasonable having regard to the terms of this Agreement and the circumstances existing at the time of the reference.
(4)The arbitrators or umpire or some person appointed on their behalf may investigate the Company's affairs and accounts so far as may be necessary to assist them to determine any matter referred to them and the Company shall give them full access to all accounts and papers necessary for that purpose and shall afford them full information and assistance.
Division D—Determination of Agreement by Director-General
28.If the Company—
(1)enters into liquidation (other than a voluntary liquidation for the purposes or reconstruction and assignment of rights under this Agreement).
(2)ceases production of particle board or other panel products approved by the Director-General.
(3)contravenes or fails to comply with the terms and conditions of this Agreement.
the Director-General may thereupon determine this Agreement.
Division E—Supplemental
29.The Director-General and the Company may by agreement—
(a)from time to time amend this Agreement by such additions, deletions and variations of matters of detail as may be necessary or desirable to facilitate the carrying on of the industry; and
(b)at any time determine this Agreement upon such terms as they deem fit.
30.Notwithstanding anything else provided in this Agreement the Company may determine this Agreement by the giving of five years' notice in writing to the Director-General, and after that time all obligations of the Company and the Director-General pursuant to this Agreement will cease.
31.The Minister approves this Agreement.
In witness whereof the parties hereto have executed as a deed this Agreement the day and year first before written.
Signed sealed and delivered by the Honourable,
the Treasurer in the presence of: R. A. JOLLY L.S.
S. POSTLETHWAITE
Signed, sealed and delivered by the Honourable,
the Minister for Conservation, Forests and
Lands in the presence of: K. SETCHES L.S.
GAVIN JENNINGS
The common seal of Director-General of
Conservation, Forests and Lands was
hereunto affixed in the presence of: L. FOSTER L.S.
K. HARBECK
The common seal of ACI Australia Limited,
was hereto affixed by authority of the
Directors in the presence of: L.S
E. B. TURNER, Director
GEOFF ROBERTSON, Secretary
Schedule
Royalty and Roading Charges (Clause 17)
The royalty and roading charge per cubic metre of Softwood Timber shall be determined by the distance the place of harvesting of the timber and the Company's plant, as follows:
(1)Where the distance is less than or equal to 50 kms, the maximum rate set out in the table below;
(2)Where the distance is greater than 50 kms, the maximum rate shall be reduced by the distance allowance set out in the table below, provided that the charge shall not be reduced below the minimum rate set out in the table below.
Period Ending
Maximum Rate $/m3
Minimum Rate $/m3Distance Allowance Cents/km/m3
30.6.1991
$16.00
$10.50
10×0
30.6.1992
$16.96
$11.13
10×6
30.6.1993
$17.98
$11.80
11×2
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ENDNOTES
1. General Information
Minister's second reading speech—
Legislative Assembly: 26 October 1989
Legislative Council: 17 November 1989
The long title for the Bill for this Act was "A Bill to ratify an agreement with Laminex Industries and for other purposes".
The Forests (Laminex Industries Agreement) Act 1989 was assented to on 5 December 1989 and came into operation on 1 January 1990: section 2.
2. Table of Amendments
There are no amendments made to the Forests (Laminex Industries Agreement) Act 1989 by Acts and subordinate instruments.
3. Explanatory Details
No entries at date of publication
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