Forests (Softwood Holdings Agreement) Act 1975 (Vic)
Version No. 001
Forests (Softwood Holdings Agreement) Act 1975
Act No. 8748/1975
Version incorporating amendments as at 15 August 2000
TABLE OF PROVISIONS
Section Page
1.Short title
2.Definition, words and expressions
3.Act to bind the Crown
4.Ratification etc. of Agreement
5.Royalties etc. to be paid into Consolidated Fund
6.Costs and expenses to be paid out of Consolidated Fund
7.Regulations
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SCHEDULE—Agreement
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ENDNOTES
1. General Information
2. Table of Amendments
3. Explanatory Details
Version No. 001
Forests (Softwood Holdings Agreement) Act 1975
Act No. 8748/1975
Version incorporating amendments as at 15 August 2000
An Act to ratify validate approve and otherwise give effect to an Agreement between the Forests Commission and Softwood Holdings Limited with respect to the Establishment of an Industry for the manufacture of Particle Board from Softwood Timber obtained from Forests under the control of the Forests Commission and for other purposes.
Preamble
WHEREAS an Agreement with respect to the establishment of an industry for the manufacture of particle board from softwood timber obtained from forests under the control of the Forests Commission was made on the Nineteenth day of September, 1975 between the Forests Commission of the one part and Softwood Holdings Limited, being a company incorporated in the State of South Australia and registered under the Companies Act 1938 as a company carrying on business in Victoria of the other part:
AND WHEREAS by the said Agreement it is provided that the 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:
AND WHEREAS it is expedient to ratify validate approve and otherwise give effect to the said Agreement and to make other provisions as hereinafter enacted.
BE IT THEREFORE ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):
1.Short title
This Act may be cited as the Forests (Softwood Holdings Agreement) Act 1975.
2.Definition, words and expressions
In this Act unless inconsistent with the context or subject-matter—
(a)"Agreement" means the Agreement a copy of which is set out in the Schedule and includes the map annexed to the Agreement as executed, a copy of which is lodged in the Central Plan Office and numbered VIC. F.C.4; and
(b)words and expressions have the meanings respectively assigned to them in the Agreement.
3.Act to bind the Crown
This Act shall bind the Crown.
4.Ratification etc. of Agreement
(1)The Agreement is hereby ratified validated and approved and shall be given effect as so ratified and as amended from time to time in accordance with the Agreement.
(2)The Director-General of Conservation, Forests and Lands is hereby empowered to carry out the Agreement or the Agreement as amended from time to time.
5.Royalties etc. to be paid into Consolidated Fund
All royalties and other moneys payable by the Company to the Director-General of Conservation, Forests and Lands pursuant to the Agreement shall be paid into the Consolidated Fund.
6.Costs and expenses to be paid out of Consolidated Fund
All costs and expenses incurred by the State of Victoria or the Director-General of Conservation, Forests and Lands in carrying into effect this Act and the Agreement shall be paid out of the Consolidated Fund which is hereby to the necessary extent appropriated accordingly.
7.Regulations
(1)The Governor in Council may make regulations for or with respect to regulating and controlling the manner of cutting, felling, obtaining or removing softwood timber in or from the area of supply.
(2)A person who contravenes or fails to comply with a regulation under sub-section (1) shall be guilty of an offence.
Penalty:15 penalty units or imprisonment for three months.
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SCHEDULE
THIS AGREEMENT is made the nineteenth day of September, One thousand nine hundred and seventy-five between FORESTS COMMISSION incorporated by the provisions of the Forests Act 1958 of the State of Victoria of the one part and SOFTWOOD HOLDINGS LIMITED a company incorporated in the State of South Australia with its registered office in the State of Victoria situate at 131–141 Queen's Bridge Square South Melbourne of the other part—
WHEREAS
Recitals
I.The Company is desirous of establishing in the State of Victoria within the area of supply as hereinafter defined the industry of manufacturing particle board from softwood timber obtained from forests controlled by the Commission.
II.Before the Company incurs the expenditure necessary to establish the industry it desires to be satisfied that sufficient softwood timber will be available from the area of supply to enable it to carry on the industry.
III.The Commission has in the area of supply conifer plantations which it is expanding at the rate of 360 hectares annually and the Commission desires to be satisfied that it will have a market for softwood timber produced in those plantations.
IV.The parties hereto desire to enter into this Agreement so that upon its ratification validation and approval by Parliament the provisions hereinafter appearing shall have full force and effect.
NOW IT IS HEREBY AGREED as follows:
PART I—PRELIMINARY
1.Definitions
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;
"area of supply" means that area in the Portland locality surrounded by a purple verge on the map annexed hereto;
"Commission" means the Forests Commission and if that Commission ceases to exist means the body corporate or persons for the time being charged with the duties or substantially the same duties now performed by the Forests Commission;
"Company" means Softwood Holdings Limited and upon each assignment to any other company in accordance with sub-clause (1) of clause 4 hereof includes that assignee company;
"cubic metres" means cubic metres true volume under bark;
"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 within the area of supply of particle board from softwood timber;
"minimum annual supply" means the annual quantity which the Commission is to make available from time to time under clause 13 hereof;
"month" means calendar month;
"softwood timber" means timber of the species Pinus radiata Pinus pinaster and other coniferous species suitable for the manufacture of particle board but does not include any timber which the Commission requires for sale as logs poles or fencing timber; and
"year" means a period of twelve months commencing on the first day of July.
2.Interpretation
(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 sidenotes shall not affect the interpretation of this Agreement.
3.Agreement to be ratified by Act of Parliament
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.Operation of industry by assignee company
(1)The Company shall be at liberty at any time with the prior written consent of the Commission to assign its rights under this Agreement to any other company.
(2)Upon each such assignment the 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.
(3)Notwithstanding any such assignment Softwood Holdings Limited shall remain responsible to the Commission for the performance of all the obligations and conditions imposed upon the Company by this Agreement.
PART II—OPERATION OF THE INDUSTRY
Division A—Duration of Agreement
5.To cease on 30th June, 1996 or upon sooner determination
This Agreement shall remain in force until the thirtieth day of June 1996 or until sooner determination in accordance with the provisions hereof.
6.Saver of rights
The expiration or determination of this Agreement shall not affect the enforcement of any right obligation or liability already existing under it.
Division B—Timber Rights
7.Rights of lessees etc.
Nothing in this Agreement shall affect the rights powers and privileges acquired by any person (whether before or after the commencement of the Act) under the Forests Act 1958 or any other Act.
8.Sale of forest produce or grant of licences not restricted
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 compliance by the Commission with its obligations under clause 13 hereof to make available to the Company the minimum annual supply of softwood timber nothing in this Agreement shall restrict the Commission's rights pursuant to the Forests Act 1958 to sell or grant licences to obtain forest produce.
9.Plan of utilization
(1)Not later than the thirty-first day of March 1976 and the thirty-first day of March in each year thereafter the Commission shall draw up and deliver to the Company a plan of utilization 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 utilization and the provisional plan shall set out the areas of the area of supply from which softwood timber may be obtained during the relevant period and shall specify the location and area of each area and the respective quantities of softwood timber which the Commission estimates will be obtainable in each area.
(3)The Commission and the Company may during the currency of any plan of utilization agree to a modification of the plan.
(4)The Company shall conform with each plan or modified plan of utilization.
10.Company to comply with Forests Act &c.
The Company shall comply with the provisions of the Forests Act 1958 and with all regulations for the time being in force under the Act.
11.Company's right to softwood timber
(1)Subject to the provisions of this Agreement the Company without obtaining any lease licence 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—
(a)from heads and other parts of trees remaining from logging and pole and post cutting operations;
(b)from all standing trees indicated by a forest officer; and
(c)as required by the Commission from timber felled or felled and removed by or on behalf of the Commission.
(3)The Commission 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 Commission but any of such timber not taken by the Company shall for the purpose of clause 13 hereof be softwood timber made available to the Company by the Commission.
12.Purpose for which timber is to be used
The Company shall use the softwood timber made available to it under this Agreement for the purpose of the industry.
13.
(1)Subject to the provisions of clause 25 hereof the Commission shall make available to the Company from the area of supply a minimum annual supply of softwood timber which unless increased pursuant to the provisions of sub-clause (3) hereof shall be—
(a)During the year 1976–1977 —200 cubic metres;
(b)During the years 1977–1978 to 1979–1980 inclusive—22 000 cubic metres;
(c)During the years 1980–1981 to 1982–1983 inclusive—30 000 cubic metres;
(d)During the years 1983–1984 to 1985–1986 inclusive—33 000 cubic metres;
(e)During the years 1986–1987 to 1988–1989 inclusive—35 000 cubic metres;
(f)During the years 1989–1990 to 1991–1992 inclusive—35 000 cubic metres;
(g)During the years 1992–1993 to 1994–1995 inclusive—37 000 cubic metres;
(h)During the year 1995–1996 —37 000 cubic metres.
(2)The Commission 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.
(3)At any time but not less than once in each period of five years while this Agreement remains in force the volume of softwood timber available in the area of supply shall be assessed by the Commission and on the basis of the volume so determined the Commission and the Company may agree to increase or decrease for any period commencing from the first day of July next following the date of such agreement the minimum annual supply referred to in sub-clause (1) hereof for that period and any minimum annual supply so agreed upon may likewise be further increased or decreased.
14.Specifications of softwood timber
The Company shall not be bound to accept any softwood timber which—
(a)is not sound 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;
(c)is less than 2 metres in length or such other minimum length as is agreed to from time to time by the Commission and the Company; or
(d)is less than 8 centimetres or more than 30 centimetres in cross-sectional breadth under bark.
15.Price of softwood timber
(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 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 Commission—the royalty as aforesaid and a charge to be agreed upon from time to time between the Commission and the Company for—
(i)the cost to the Commission of felling or felling and removal of softwood timber in or from the particular area; and
(ii)the overhead expenses of the Commission 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 Commission but so that the charge for the cost of felling or felling and removal of softwood timber in or from any area shall not exceed the actual cost to the Company of or the payment made by the Company to contractors for felling or 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 timber physical circumstances of extraction and situation in regard to means of transport.
16.Company's obligations to take or pay for softwood timber
(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 Commission on the deficiency at a rate equal to the royalty rate payable in that year under clause 18 or 19 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 of the deficiency.
(3)After the expiration of the tenth year from the first day of July 1976 "90 per centum" in paragraphs (a) and (b) of sub-clause (1) hereof may from time to time be modified by agreement between the Commission and the Company but shall not be reduced below 75 per centum.
17.Payment of royalty
The following provisions shall apply with respect to royalty payable under this Agreement:
(a)Royalty shall be payable at such times after the amounts have been ascertained and in such manner as the Commission from time to time determines.
(b)If any royalty due by the Company remains unpaid for sixty days after the Commission has demanded payment thereof the Commission may without limiting the obligations of the Company under clause 16 hereof by notice in writing to the Company suspend its right to obtain softwood timber under this Agreement until payment is made.
(c)If the Company disputes the amount of any payment demanded by the Commission 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.
18.Royalty during first period
During the period of one year from the first day of July 1976 the royalty payable shall be at the rate of $4.53 per cubic metre.
19.Review of royalty
(1)During each successive period of three years from the first day of July 1977 the royalty payable shall be at the rate agreed upon by the Commission and the Company.
(2)Failing agreement thereon not later than fourteen days after publication by the Commonwealth Bureau of Census and Statistics of the figures for the end of the preceding calendar year relating to the Earnings and the Index referred to in paragraphs (a) and (b) hereof respectively the royalty payable shall be at the rate calculated by varying the rate payable during the preceding period of three years in the same proportion as the average of the proportional variation in the said figures at the beginning and the end of the preceding period of three calendar years in regard to—
(a)the Average Weekly Earnings per Employed Male Unit; Victoria; and
(b)the Wholesale Price Index of materials used in building other than house building: Melbourne: Timber, Board and Joinery
except that for the period of three years commencing from the first day of July 1977 the rate shall be calculated by varying the rate of $4.53 per cubic metre in the same proportion as the average of the proportional variation in the said figures at the beginning and the end of the period of two years ended on the thirty-first day of December 1976.
(3)If the Commonwealth Bureau of Census and Statistics ceases to publish the figures referred to in either paragraph (a) or (b) of sub-clause (2) hereof a new method of calculating any variation in the royalty shall be agreed upon by the Commission and the Company or failing agreement within thirty days shall be determined by the Commission.
(4)If any variation in the royalty rate is not determined prior to the commencement of any new three-yearly period the Company shall continue to pay royalty at the rate payable during the preceding period and as soon as the new rate has been determined an adjustment shall be made retrospectively to the commencement of the new period.
20.Construction of roads, tracks &c. by Company
The Company shall not within the area of supply construct any road track or passage or any chute without the prior consent of a forest officer and shall not within the area of supply construct any tramway flume or building or erect any haulage or conversion unit without the prior written consent of the Commission.
21.Determination of quantity of softwood timber
(1)The quantity of softwood timber upon which royalty is payable under this Agreement shall be determined in such manner (allowance being made for bark) as may be agreed upon by the Commission and the Company or failing agreement within thirty days as the Commission may direct.
(2)The place at which the quantity of softwood timber is to be measured shall be as fixed by the Commission from time to time after consultation with the Company.
(3)If the quantity of softwood timber upon which the royalty is payable is to be determined from its mass—
(a)the Company shall provide at its plant within the area of supply 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;
(b)at all times while the weighbridge is in accurate working order and is currently verified in accordance with the Weights and Measures Act 1958 the quantity of softwood timber upon which royalty is payable under this Agreement shall be determined by weighing it on the weighbridge;
(c)weighing shall be carried out by a person currently licensed as a weighman under the Weights and Measures Act 1958;
(d)the Company shall periodically provide to the Commission evidence that the weighbridge is currently verified and that each weighman is currently licensed in accordance with the Weights and Measures Act 1958; and
(e)at all times the weighbridge is not in accurate working order the quantity of softwood timber upon which royalty is payable under this Agreement shall be determined in such manner as may be agreed upon by the Commission and the Company or failing agreement within fourteen days as the Commission may direct.
22.Company to comply with conditions
The Commission 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.
23.Requirements in regard to servants &c., of the Company
(1)The Company shall keep the Commission informed by notice in writing 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 such person for production when required by a forest officer evidence in a form satisfactory to the Commission that he is engaged in obtaining softwood timber under this Agreement and the Company shall forthwith inform the Commission 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 22 hereof.
(b)The Company shall upon making any such contract forthwith give to the Commission written notice of the contract specifying the name of the contractor the duration of the contract and the quantity of an area from which softwood timber is to be obtained thereunder.
(4)The Company shall if so required by the Commission terminate the contract of any contractor who in the opinion of the Commission has failed to comply with the Forests Act 1958 the regulations made under the Act or the conditions referred to in clause 22 hereof.
24.Further agreement
(1)In the first three months of the last year of this Agreement the Commission shall if the Company seeks a further Agreement to assure to it supplies of softwood timber for the continuance 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 a further Agreement has been agreed upon and executed the Commission shall (if necessary) recommend to the Minister of Forests 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
25.Suspension if forests damaged &c.
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 Commission to comply with the provisions of clause 13 hereof or if by reason of anything beyond the control of the Commission it is prevented from complying with those provisions the Company shall have no claim against the Commission for the non-fulfilment of its obligations under those provisions so far as non-fulfilment is due to any such cause.
26.Damage or destruction of plant &c.
(1)If—
(a)the Company's plant or any works used by it for the purpose of manufacturing particle board within the area of supply are damaged or destroyed by fire or other calamity;
(b)by reason of anything beyond the control of the Company it is delayed in establishing the industry;
(c)the carrying on of the industry becomes commercially impracticable because of a recession in the particle board manufacturing industry in Australia;
(d)by reason of war strike lockout or action in the nature of a strike or lockout the Company is impeded from obtaining softwood timber or carrying on production of particle board;
then in any of those events—
(i)the Company may apply to the Commission for suspension or a reasonable modification of the extent or operation of its obligations under clause 16 hereof or for an extension of time for the performance or observance thereof;
(ii)the Commission upon any such application by the Company may grant a suspension of the said obligations or a reasonable modification of their extent or operation or an extension of time for their performance or observance;
(iii)if the Company is dissatisfied with the decision of the Commission upon any such application the matter shall if the Company so elects be submitted to arbitration.
(2)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 Commission.
(b)The provisions of the Arbitration Act 1958 shall apply to the reference.
(3)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 Commission
27.Commission may determine Agreement in certain events
If the Company—
(1)enters into liquidation (other than a voluntary liquidation for the purposes of reconstruction and assignment of rights under this Agreement);
(2)delays the commencement of commercial production of particle board from softwood timber at a rate not less than 350 tonnes per month beyond the year ending on the thirtieth day of June 1978; or
(3)contravenes or fails to comply with the terms and conditions of this Agreement—
the Commission may thereupon determine this Agreement.
Division E—Supplemental
28.Amendment or determination by agreement
The Commission 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.
IN WITNESS whereof the parties hereto have executed this Agreement the day and year first before written.
The common seal of Forests Commission
was hereto affixed in the presence of:
F. R. Moulds
Commissioner.
A. J. Threader
Commissioner.
The common seal of Softwood Holdings Limited
was hereto affixed in the presence of:
E. A. Alstergren
Director.
P. E. Fitz-Gerald
Director.
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ENDNOTES
1. General Information
The Forests (Softwood Holdings Agreement) Act 1975 was assented to on 5 November 1975 and came into operation on 5 November 1975.
2. Table of Amendments
This Version incorporates amendments made to the Forests (Softwood Holdings Agreement) Act 1975 by Acts and subordinate instruments.
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Forests and Country Fire Authority (Penalties) Act 1985, No. 10235/1985
Assent Date: 10.12.85 Commencement Date: 10.12.85: s. 2 Current State: All of Act in operation
Conservation, Forests and Lands Act 1987, No. 41/1987
Assent Date: 19.5.87 Commencement Date: S. 103(Sch. 4 items 29.1–29.3) on 1.7.87: Government Gazette 24.6.87 p. 1694 Current State: This information relates only to the provision/s amending the Forests (Softwood Holdings Agreement) Act 1975
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3. Explanatory Details
No entries at date of publication.
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