Forests Legislation Amendment (Compliance and Enforcement) Act 2021 (Vic)
Forests Legislation Amendment (Compliance and Enforcement) Act 2021
No. 38 of 2021
table of provisions
Section Page
Part 1—Preliminary
1Purposes
2Commencement
Part 2—Amendment of Sustainable Forests (Timber) Act 2004
Division 1—General
3Definitions
Division 2—Amendments relating to unauthorised timber harvesting operations
4Section 45 substituted and new section 45A inserted
5Time for bringing certain proceedings
6New section 141 inserted
Division 3—Amendments relating to Codes of Practice and enforceable undertakings
7Compliance with Codes of Practice
8Enforceable undertakings
Division 4—Amendments relating to production of documents
9New Part 8B inserted
Division 5—Amendments relating to incorporation of documents by reference
10New section 96A inserted
Division 6—Miscellaneous amendments
11New section 142 inserted
12Statute law revision
Part 3—Amendment of Forests Act 1958
Division 1—Amendments relating to the cutting or removal of timber from State forest
13New section 96AA inserted
Division 2—Amendments relating to incorporation of documents by reference
14New section 99B inserted
Division 3—Repeal of spent provisions
15Repeals and savings
16Power to establish board of forestry education
17Regulations
18Continuation of licences and leases—2005 Act
19Tour operator licence offence
20Transitional provision—Statute Law Amendment (Charter of Human Rights and Responsibilities) Act 2009
21Transitional provision—Crown Land Legislation Amendment (Canadian Regional Park and Other Matters) Act 2016
Division 4—Statute law revision amendment
22Statute law revision
Part 4—Amendment of Conservation, Forests and Lands Act 1987
23Compliance with Codes of Practice and comments
24Injunctions
25Statute law revision
Part 5—Repeal of this Act
26Repeal of this Act
═════════════
Endnotes
1 General information
Forests Legislation Amendment (Compliance and Enforcement) Act 2021
No. 38 of 2021
[Assented to 12 October 2021]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
The purposes of this Act are—
(a)to amend the Sustainable Forests (Timber) Act 2004—
(i)to amend the offence relating to unauthorised timber harvesting operations; and
(ii)to clarify the requirement to comply with any relevant Code of Practice; and
(iii)to make further provision for the circumstances in which enforceable undertakings may be entered into; and
(iv)to introduce a power for authorised officers to require the production of documents; and
(v)to enable the incorporation of documents by reference in certain instruments; and
(b)to amend the Forests Act 1958—
(i)to insert an offence prohibiting the cutting or taking of timber in a State forest without authority; and
(ii)to enable the incorporation of documents by reference in certain instruments; and
(iii)to repeal spent provisions; and
(c)to amend the Conservation, Forests and Lands Act 1987 to provide for mandatory injunctions in certain circumstances; and
(d)to make other miscellaneous amendments.
2Commencement
(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.
(2)If a provision of this Act does not come into operation before 1 March 2022, it comes into operation on that day.
Part 2—Amendment of Sustainable Forests (Timber) Act 2004
Division 1—General
3Definitions
In section 3 of the Sustainable Forests (Timber) Act 2004 insert the following definitions—
"production notice means a notice under section 83D;
production order means an order under section 83E;
VicForests contractor means a person engaged directly or indirectly by VicForests to carry out activities relating to timber harvesting operations on behalf of VicForests, and includes a subcontractor;".
Division 2—Amendments relating to unauthorised timber harvesting operations
4Section 45 substituted and new section 45A inserted
For section 45 of the Sustainable Forests (Timber) Act 2004 substitute—
"45 Offence to undertake unauthorised timber harvesting operations
(1)A person must not undertake timber harvesting operations in a State forest except in accordance with subsection (2).
Penalty:In the case of a natural person, 120 penalty units;
In the case of a body corporate, 600 penalty units.
Notes
1 See section 72 of the Criminal Procedure Act 2009 which deals with the evidential burden of proof.
2 A person involved in the commission of an offence may be taken to have committed that offence: see section 324 of the Crimes Act 1958.
(2)A person may undertake timber harvesting operations in a State forest in accordance with—
(a)an allocation order and a timber release plan that relates to that allocation order, in the case of—
(i)VicForests; or
(ii)a VicForests contractor; or
(iii)a person who has entered into an agreement with VicForests for the harvesting and sale of timber resources, or the harvesting or sale of timber resources; or
(iv)a person acting on behalf of a person referred to in subparagraph (iii); or
(b)an authorisation under Part 4; or
(c)a licence or permit granted under section 52 of the Forests Act 1958; or
(d)any other lease, licence, permit or authorisation that authorises the undertaking of timber harvesting operations, made, issued, granted or otherwise provided for under this Act or any other Act.
(3)For the purposes of subsection (2)(a), if an allocation order and a timber release plan that relates to that allocation order impose obligations on VicForests in relation to timber harvesting operations, a person referred to in subsection (2)(a)(ii), (iii) or (iv) must comply with those obligations to the extent that that person undertakes timber harvesting operations.
45ACertain conduct of VicForests contractors taken to be conduct of VicForests
(1)If a VicForests contractor—
(a)contravenes section 45(1); or
(b)engages in any conduct that would, if engaged in by VicForests, contravene section 45(1)—
VicForests is taken to have contravened section 45(1).
(2)VicForests may be found guilty of an offence against section 45(1) by virtue of subsection (1)—
(a)whether or not the VicForests contractor is prosecuted for or found guilty of the offence; and
(b)whether or not VicForests was involved in the commission of the offence.".
5Time for bringing certain proceedings
In section 92A of the Sustainable Forests (Timber) Act 2004, for "2 years" substitute "3 years".
6New section 141 inserted
After section 140 of the Sustainable Forests (Timber) Act 2004 insert—
"141 Transitional provision—Forests Legislation Amendment (Compliance and Enforcement) Act 2021
(1)In this section—
2021 amending Act means the Forests Legislation Amendment (Compliance and Enforcement) Act 2021.
(2)The amendments made to this Act by section 4 of the 2021 amending Act apply only to offences alleged to have been committed on or after the commencement of that section.
(3)For the purposes of subsection (2), if an offence is alleged to have been committed between 2 dates, one before and one on or after the commencement of section 4 of the 2021 amending Act, the offence is alleged to have been committed before that commencement.".
Division 3—Amendments relating to Codes of Practice and enforceable undertakings
7Compliance with Codes of Practice
For section 46(a) of the Sustainable Forests (Timber) Act 2004 substitute—
"(a)despite anything to the contrary in section 67(1) of the Conservation, Forests and Lands Act 1987, VicForests;".
8Enforceable undertakings
(1)After section 83A(1) of the Sustainable Forests (Timber) Act 2004 insert—
"(1A)The Secretary may enter into an undertaking with a person who has contravened, or allegedly contravened, any relevant Code of Practice relating to timber harvesting with which compliance is required under section 46.".
(2)For section 83A(2) of the Sustainable Forests (Timber) Act 2004 substitute—
"(2)An undertaking under subsection (1) or (1A) must—
(a)be in writing; and
(b)in the case of an undertaking under subsection (1), specify the conduct constituting the contravention, or alleged contravention, of section 45; and
(c)in the case of an undertaking under subsection (1A), specify the conduct constituting the contravention, or alleged contravention, of the relevant Code of Practice.".
(3)For section 83A(4), (5) and (6) of the Sustainable Forests (Timber) Act 2004 substitute—
"(4)While an undertaking is in force, no civil or criminal proceeding may be commenced in relation to—
(a)an offence constituted by the contravention or alleged contravention in respect of which the undertaking is given; or
(b)the contravention or alleged contravention of the relevant Code of Practice in respect of which the undertaking is given.
(5)If a person withdraws an undertaking before the undertaking has been fulfilled, a civil or criminal proceeding may be commenced in relation to—
(a)an offence constituted by the contravention or alleged contravention in respect of which the undertaking is given; or
(b)the contravention or alleged contravention of the relevant Code of Practice in respect of which the undertaking is given.
(6)If a person complies with the requirements of an undertaking, no further civil or criminal proceeding may be commenced in relation to—
(a)an offence constituted by the contravention or alleged contravention in respect of which the undertaking is given; or
(b)the contravention or alleged contravention of the relevant Code of Practice in respect of which the undertaking is given.".
Division 4—Amendments relating to production of documents
9New Part 8B inserted
After Part 8A of the Sustainable Forests (Timber) Act 2004 insert—
"Part 8B—Production of documents
83DPower to require production of documents
(1)For the purpose of monitoring compliance with this Act, an authorised officer may give a production notice requiring the production to the authorised officer of any document specified in the notice to—
(a)VicForests; or
(b)a person that an authorised officer believes on reasonable grounds to be a VicForests contractor; or
(c)a person named in a production order.
(2)A document specified in a production notice must be—
(a)relevant to compliance with this Act; and
(b)in the possession or control of VicForests, a VicForests contractor or a person named in a production order (as the case requires).
(3)A production notice must—
(a)be in writing; and
(b)specify the following details—
(i)the person to whom it is given;
(ii)the document to be produced, which may be specified by description or class;
(iii)the manner in which the document may be produced and place of production;
(iv)that the person must comply with the production notice within 30 days of the date specified in the notice.
83EProduction order to authorise production notice to be given to other persons
(1)For the purpose of monitoring compliance with this Act, an authorised officer may apply to the Magistrates' Court for a production order authorising the authorised officer to give a production notice to a person if the authorised officer believes on reasonable grounds that a document is—
(a)relevant to compliance with this Act; and
(b)in the possession or control of the person.
(2)If the Magistrates' Court is satisfied on evidence given by the authorised officer that the order is necessary for the purpose of monitoring compliance with this Act, the Court may make a production order authorising the authorised officer to give a production notice to the person named in the order.
(3)A production order must specify—
(a)the person to whom the production notice is to be given; and
(b)the document to be produced, which may be specified by description or class; and
(c)a day, not later than 30 days after the order is made, on which the order expires; and
(d)any other matter the Court considers appropriate.
(4)If an authorised officer gives a production notice under a production order, the authorised officer must notify the Court in writing of the time and place that the production notice was given to the person named in the order as soon as practicable after the production notice is given to that person.
(5)The expiry of a production order does not affect the operation of a production notice given under that production order.
83FApplication for extension of time period
(1)A person who receives a production notice may apply to the authorised officer within 30 days after receiving the notice for an extension of the time period specified for compliance.
(2)An authorised officer, in writing, may extend the time period for compliance if the officer is satisfied that there are reasonable grounds for doing so.
83GHow documents may be produced
Subject to the production notice, a person who produces a document to an authorised officer in accordance with a production notice may send that document to the authorised officer—
(a)by registered post; or
(b)by electronic transmission.
83HPowers on production of documents
An authorised officer to whom a document is produced in accordance with a production notice may do any or all of the following—
(a)inspect the document or any part of the document;
(b)make copies of and take extracts from the document or any part of the document;
(c)retain the document or any part of the document for as long as is reasonably necessary to fulfil the purpose for which it is required.
83IReceipt for retained documents
If an authorised officer retains a document under section 83H, the authorised officer must take reasonable steps to give the person who produced the document a written receipt for that document within 30 days after the document is produced.
83JReturn of produced documents
(1)Subject to subsection (2), an authorised officer to whom a document is produced in accordance with a production notice must take reasonable steps to return the document to the person who produced it within 30 days after it was produced.
(2)If an authorised officer retains a document under section 83H, the authorised officer must take reasonable steps to return the document to the person who produced it as soon as the purpose for retaining it no longer exists.
(3)Without limiting subsection (2), a purpose for retaining a document under section 83H includes—
(a)an investigation is being conducted into whether a contravention of this Act has occurred; or
(b)a proceeding under this Act has commenced and that proceeding (including any appeal) has not been completed.
83KForfeiture to Crown
If, despite taking reasonable steps to do so, an authorised officer cannot return a document that was produced in accordance with a production notice to the person who produced it, the document is forfeited to the Crown.
83LOffence to contravene production notice
A person who receives a production notice must not, without reasonable excuse, contravene the production notice.
Penalty:20 penalty units, in the case of a natural person;
100 penalty units, in the case of a body corporate.
83MOffence to provide false or misleading information
A person who receives a production notice must not, without reasonable excuse, produce a document that contains information the person knows to be false or misleading in a material particular.
Penalty:20 penalty units, in the case of a natural person;
100 penalty units, in the case of a body corporate.
83NProtection against self-incrimination
It is a reasonable excuse for a natural person to refuse or fail to give information, or do any other thing that the person is required to do under this Part, if giving the information or doing the thing would tend to incriminate the person.".
Division 5—Amendments relating to incorporation of documents by reference
10New section 96A inserted
After section 96 of the Sustainable Forests (Timber) Act 2004 insert—
"96A Instruments may incorporate documents
(1)An instrument made under this Act may apply, adopt or incorporate any matter contained in any document—
(a)wholly or partially or as amended by the instrument; and
(b)as formulated, issued, prescribed or published—
(i)at the time the instrument is made; or
(ii)at any specified time before the instrument is made.
(2)For the purposes of this section, instrument includes any instrument made under this Act other than regulations made under section 96.".
Division 6—Miscellaneous amendments
11New section 142 inserted
At the end of Part 13 of the Sustainable Forests (Timber) Act 2004 insert—
"142 Saving of existing enforceable undertakings
The amendment of section 83A by the Forests Legislation Amendment (Compliance and Enforcement) Act 2021 does not affect the operation of any enforceable undertaking entered into by the Secretary and in force immediately before that amendment.".
12Statute law revision
(1)In item 5 of Schedule 2 to the Sustainable Forests (Timber) Act 2004, for "that are authorised operations within the meaning of section 45(2)" substitute "in accordance with an authorisation specified in section 45(2)".
(2)In item 16 of Schedule 2 to the Sustainable Forests (Timber) Act 2004, for "authorisation order given under section 84" substitute "agreement under Part 6".
Part 3—Amendment of Forests Act 1958
Division 1—Amendments relating to the cutting or removal of timber from State forest
13New section 96AA inserted
After section 96 of the Forests Act 1958 insert—
"96AA Offence to cut etc. timber in a State forest
(1)A person must not cut, split, fell, obtain, remove or take any timber in a State forest, except as set out in subsection (2).
Penalty:50 penalty units or imprisonment for 1 year or both.
Note
A person involved in the commission of an offence may be taken to have committed that offence: see section 324 of the Crimes Act 1958.
(2)A person may cut, split, fell, obtain, remove or take timber in a State forest in accordance with one or more of the following—
(a)a lease, licence, permit or authorisation made, issued, granted or otherwise provided for under this or any other Act;
(b)the regulations or regulations made under any other Act;
(c)an allocation order under the Sustainable Forests (Timber) Act 2004 and a timber release plan that relates to that allocation order;
(d)an authorisation under Part 4 of the Sustainable Forests (Timber) Act 2004;
(e)the provisions of this Act relating to the collection of firewood for domestic use (sections 57O to 57ZF).
(3)Subsection (1) applies to any timber in a State forest—
(a)whether or not that timber is owned by or vested in the Crown; and
(b)whether or not the timber is located in an area to which an allocation order under the Sustainable Forests (Timber) Act 2004 applies.
(4)In this section, timber includes—
(a)firewood; and
(b)timber resources within the meaning of the Sustainable Forests (Timber) Act 2004; and
(c)any other wood, trees or parts of trees.".
Division 2—Amendments relating to incorporation of documents by reference
14New section 99B inserted
After section 99A of the Forests Act 1958 insert—
"99B Instruments may incorporate documents
(1)An instrument made under this Act may apply, adopt or incorporate, either wholly or in part and with or without any modification, any matter contained in any document formulated, issued, prescribed or published by any person—
(a)as formulated, issued, prescribed or published at the time the instrument is made or at any specified time before the instrument is made; or
(b)as amended from time to time.
(2)For the purposes of this section—
instrument includes any instrument made under this Act other than the following—
(a)regulations made under section 99;
(b)a determination under section 57U.".
Division 3—Repeal of spent provisions
15Repeals and savings
(1)Section 2 of the Forests Act 1958 is repealed.
(2)The First Schedule to the Forests Act 1958 is repealed.
16Power to establish board of forestry education
Section 26A of the Forests Act 1958 is repealed.
17Regulations
Section 99(19), (19A) and (19B) of the Forests Act 1958 are repealed.
18Continuation of licences and leases—2005 Act
Section 101 of the Forests Act 1958 is repealed.
19Tour operator licence offence
Section 101A of the Forests Act 1958 is repealed.
20Transitional provision—Statute Law Amendment (Charter of Human Rights and Responsibilities) Act 2009
Section 103 of the Forests Act 1958 is repealed.
21Transitional provision—Crown Land Legislation Amendment (Canadian Regional Park and Other Matters) Act 2016
Section 104 of the Forests Act 1958 is repealed.
Division 4—Statute law revision amendment
22Statute law revision
In section 91 of the Forests Act 1958, for "Early Childhood Development" (wherever occurring) substitute "Training".
Part 4—Amendment of Conservation, Forests and Lands Act 1987
23Compliance with Codes of Practice and comments
After section 67(1) of the Conservation, Forests and Lands Act 1987 insert—
"(1A)Nothing in subsection (1)(a) or (b) applies to the requirements imposed on VicForests, with respect to any relevant Code of Practice relating to timber harvesting, by section 46 of the Sustainable Forests (Timber) Act 2004.".
24Injunctions
After section 89(1) of the Conservation, Forests and Lands Act 1987 insert—
"(1A)The Secretary may apply to a court of competent jurisdiction for an injunction compelling any person to comply with a relevant law or any condition of a works approval, authority or notice.".
25Statute law revision
(1)In section 33(3)(b) of the Conservation, Forests and Lands Act 1987 omit "within" (where first occurring).
(2)In section 90(6) of the Conservation, Forests and Lands Act 1987, in the definition of officer, for "82A" substitute "9".
Part 5—Repeal of this Act
26Repeal of this Act
This Act is repealed on 1 March 2023.
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).
═════════════
Endnotes
1 General information
See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 13 November 2019
Legislative Council: 20 February 2020
The long title for the Bill for this Act was "A Bill for an Act to amend the Forests Act 1958, the Sustainable Forests (Timber) Act 2004 and the Conservation, Forests and Lands Act 1987 and for other purposes."
0
0
0