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Forests Amendment Bill 2012
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the main purposes of the Bill which are to--
amend the Forests Act 1958 to create a new scheme for
the collection of firewood from areas of State forest for
domestic use without a licence or permit;
amend the Crown Land (Reserves) Act 1978 to create
a similar scheme for application to certain land reserved
under that Act; and
consequentially amend the Land Act 1958, the
National Parks Act 1975 and the Wildlife Act 1975.
Clause 2 provides for the commencement of the Bill. The provisions of
the Bill come into operation on 1 September 2012 unless they are
proclaimed earlier.
PART 2--AMENDMENTS TO THE FORESTS ACT 1958
Part 2 of the Bill contains clauses 3 to 13, which amend the Forests Act 1958
(Forests Act) to insert the new scheme. In the following explanations, a
reference to the Secretary is a reference to the Secretary to the Department of
Sustainability and Environment and a reference to wood is a reference to the
wood from fallen or felled trees (see clause 3).
By way of overview, the new scheme to be inserted into the Forests Act
will--
establish two firewood collection seasons that apply in State forest in
each financial year;
571196 1 BILL LA INTRODUCTION 17/4/2012
enable the Secretary to determine firewood collection areas from
which a person may collect wood for domestic use as firewood during
a firewood collection season;
impose restrictions on what may be collected, when it may be
collected, how much may be collected and who may collect it via a
series of provisions (with supporting offences) in the Act;
allow restrictions to be imposed on aspects of how collection may be
carried out through regulations made under the Act.
Clause 3 inserts key definitions into section 3 of the Forests Act.
The new scheme is based on the cutting up and taking away of
fallen or felled trees for domestic use as firewood. Fallen or
felled trees describes the particular thing that may be cut and
taken away from firewood collection areas during firewood
collection seasons under the new scheme. The term "fallen or
felled trees" also includes parts of those trees. The scheme does
not include trees that remain standing (whether alive or dead) and
does not allow them to be cut and taken away. The references
throughout the new scheme to "cut" do not mean that a person is
able to cut down a standing tree in order to cause it to become a
felled tree; rather, it enables a person to cut up a tree that is on
the ground, to make it easier to take away. "Fallen or felled
trees" is a kind of "forest produce" and a kind of "timber" under
the Act (both terms are already defined in section 3 of the Forests
Act).
Definitions of firewood collection area and firewood collection
season are also inserted, which refer, respectively, to the
proposed section 57U and the proposed sections 57S and 57T.
Clause 4 repeals section 52A of the Forests Act, which enables agreements
to be made for agents of the Minister to issue domestic firewood
permits on the Minister's behalf. The provision will become
redundant after the new scheme is introduced.
Notwithstanding the repeal of section 52A, permits will still be
able to be issued by the Minister under section 52 of the Forests
Act in relation to the collection of forest produce, including wood
for domestic use as firewood, in circumstances beyond those
provided for by the new scheme.
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Clause 5 inserts sections 57O-57ZF into the Forests Act.
Definitions
Proposed section 57O contains definitions of terms that are relied
upon in the ensuing provisions.
The term nominating person refers to a person who nominates
another under proposed section 57R to collect wood on their
behalf. The term also includes a person who has made a similar
nomination under proposed section 21M of the Crown Land
(Reserves) Act 1978 (CLR Act), which is inserted by clause 16
of the Bill.
The term nominee refers to a person who is nominated under
proposed section 57R to collect wood on another person's behalf.
The term also includes a person who is similarly nominated
under proposed section 21M of the CLR Act.
Each of "nominating person" and "nominee" includes persons
who nominate, or are nominated, under the CLR Act to avoid the
need for a person to make separate nominations under the other
Act in order to fall within the definition under the other Act.
Application of scheme
Proposed section 57P provides that none of the provisions of the
new scheme apply to timber resources under the Sustainable
Forests (Timber) Act 2004. This maintains consistency with the
scope of the domestic firewood permit regime, which also did not
apply to timber resources: see section 52(2) of the Forests Act.
Proposed section 57Q creates an overarching offence, with
exceptions, that underpins the new scheme. Subsections (1) and
(2) create the general offence of cutting or taking away wood
from anywhere in State forest. Subsections (1) and (2) are
identical except that subsection (1) relates exclusively to amounts
of 2 cubic metres or less of wood, and has a lower penalty.
This is to enable the offence to be enforceable by infringement
notice when it relates to smaller quantities, while maintaining the
higher penalties (commensurate with existing section 96 of the
Forests Act) for greater amounts of wood.
The ensuing subsections of section 57Q create exceptions that
cover all of the lawful bases for taking wood from State forest.
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Subsection (3) provides an exception for persons who cut or take
away fallen or felled trees in accordance with a lease, licence,
permit or authorisation under the Forests Act (whether for
commercial, domestic or other purposes) or any other Act or
regulations.
Subsection (4) provides an exception for persons who act in
accordance with the new scheme. The exception essentially
operates as a permission for the new scheme and applies if the
following three conditions are met--
the person cuts or takes away wood in a firewood
collection area determined under proposed section 57U;
and
the person does so during a firewood collection season
established under proposed section 57S or modified
under proposed section 57T; and
the wood is cut and taken away for domestic use as
firewood in the person's household and, where relevant,
also includes the domestic use in the household of a
nominating person (as defined in proposed
section 57O).
As such, subsection (4) enables a person to collect wood for
domestic use as firewood for their own household, and also
enables a person nominated under proposed section 57R
(or proposed section 21M of the CLR Act) to collect on behalf
of a nominating person, for domestic use as firewood by the
nominating person or their household.
Subsection (5) provides an exception for traditional owners
authorised under a natural resource authorisation order under the
Traditional Owner Settlement Act 2010.
Nominees
Proposed section 57R provides the machinery for a person
(defined as a "nominating person" in proposed section 57O) to
nominate another person to collect firewood on the nominating
person's behalf.
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Subsection (2) requires the nomination to be made on the
prescribed form and to include a maximum amount of wood that
the nominee may cut and take away for the nominating person in
a financial year. This will enable the nominating person and his
or her nominee to stay within the limits imposed by the scheme.
Subsection (3) ensures that nominations cannot be used to avoid
the 16 cubic metre financial year household collection limit
imposed by proposed section 57Y. This is achieved by creating
an offence for a person to nominate others to collect in excess of
the 16 cubic metre limit, taking into account all of the maximum
amounts specified in nominations made by members of the
household. The penalty is commensurate with the existing
penalties in section 96 of the Forests Act for the illegal taking of
wood from State forest. Proposed section 57Z contains other,
related offences.
Subsection (4) creates an offence for a person to make
nominations under the scheme for purposes other than their
domestic use, while subsection (5) prevents the nominee from
requesting or accepting payment or reward. The offences have
penalties commensurate with the existing offences in section 96
of the Forests Act in relation to unlawful taking of wood from
State forest.
Firewood collection seasons
Proposed section 57S establishes the default statewide firewood
collection seasons, which are essentially during spring and
autumn in every financial year. The default seasons may be
varied under proposed section 57T (see below).
Proposed section 57T enables the Secretary to vary a firewood
season, either across the state or in particular regions, but only
where the Secretary believes it is necessary to do so because
there is risk, or likely risk, to public safety because of actual or
likely fire danger. For example, the end date of the spring season
in a particular year may need to be brought forward if there has
been a prolonged dry period, the predicted weather is hot and dry,
and there is a risk that the cutting of wood in State forest could
start a fire.
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Firewood collection areas
Proposed section 57U enables the Secretary to create firewood
collection areas within State forest by a determination published
in the Government Gazette. These are the only areas where
wood may be cut and taken away under the new scheme for
domestic use as firewood (by virtue of the exception in section
57Q(4)). Firewood collection areas must be described by
reference to a plan lodged in the Central Plan Office (of the
Department of Sustainability and Environment).
Proposed section 57U(4) enables the Secretary to limit the cutting
and taking away of wood in particular firewood collection areas
to certain classes of people (such as residents of a particular
municipality) and their nominees, where it is necessary for
management of the supply of such wood for domestic use as
firewood. This may be necessary if the firewood resource in
State forest in a particular region is scarce. Where a firewood
collection area is limited in this way, the limitation takes effect
via the offence in proposed section 57W (see below).
Proposed section 57U(5) allows the Secretary to amend a
determination of a firewood collection area and, if necessary, to
revoke a determination or to set the closing date for the collection
area in the initial determination. This will provide the Secretary
with the flexibility to manage firewood collection areas during a
firewood collection season.
Proposed section 57V sets out requirements as to signage in
relation to firewood collection areas.
Collection restrictions
Proposed section 57W creates offences associated with any
determination under section 57U that restricts the cutting and
taking away of wood to a class or classes of persons and their
nominees. The offences prevent persons who are not members of
the class of persons to whom the area is restricted (for example,
people who are not residents of a particular municipality) from
cutting and taking away wood in those areas. The penalty for the
offence is commensurate with the existing offences in section 96
of the Forests Act in relation to unlawful taking of wood from
State forest.
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Subsections (1) and (2) are identical except that subsection (1)
relates exclusively to amounts of 2 cubic metres or less of wood,
and has a lower penalty. This is to enable the offence to be
enforceable by infringement notice when it relates to smaller
quantities, while maintaining the higher penalties (commensurate
with existing section 96 of the Forests Act) for greater amounts
of wood.
Proposed section 57X creates a daily collection limit, from one or
more firewood collection areas, of 2 cubic metres of wood per
person, irrespective of whether the person is collecting the wood
for their own domestic use or that of a nominating person.
This daily limit is created by two new offences of taking wood in
excess of 2 cubic metres. The offence in section 57X(1) relates
exclusively to cutting or taking away more than 2 cubic metres
but less than 4 cubic metres of wood and has a lower penalty.
This is intended to enable the offence to be enforceable by
infringement notice. The second offence (in section 57X(2)), of
cutting or taking away 4 or more cubic metres of wood, attracts
higher penalties (commensurate with penalties equivalent to
unlawfully taking wood from State forest under existing
section 96).
Proposed section 57X(4) defines "firewood collection area" in
section 57X and proposed sections 57Y-57ZB to include
firewood collection areas under the CLR Act. This links the
schemes under the Forests Act and the CLR Act such that wood
collected under one scheme counts toward the (identical) limits
imposed under the other scheme, to avoid creating separate (and
effectively doubled) limits.
Proposed section 57Y establishes a 16 cubic metre limit on the
amount of wood that can be taken per household per financial
year. The section contains an offence for a person to take wood
from firewood collection areas during firewood collection
seasons in a financial year in excess of the limit. The wood
which determines whether the limit has been reached is the wood
taken (or nominated to be taken) by any member of the
household and by any nominee of any member of the household
for use in the household.
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Proposed section 57Z sets out a series of offences to ensure that
the 16 cubic metre limit per household per financial year
(household limit) can be effective when there is a combination of
self-collection and collection by nominees, or a number of
nominees, in relation to a particular household.
Subsection (1) contains an offence for a person to nominate
another under proposed section 57R if the wood already taken for
use in the person's household has reached the 16 cubic metre
limit. The wood which determines whether or not the limit has
been reached is the wood taken (or nominated to be taken) by any
member of the household and by any nominee of any member of
the household for use in the household.
Subsection (2) contains an offence for a person to nominate
another to collect a particular amount of wood if that amount
would cause the 16 cubic metre household limit to be exceeded
when the amount nominated is added to any amount already
collected under the scheme. The wood which determines
whether or not the limit has been reached is the wood taken
(or nominated to be taken) by any member of the household and
by any nominee of any member of the household for use in the
household.
Subsection (3) contains an offence for a nominee to collect
amounts of wood for a nominating person in excess of the
amount specified in a nomination under section 57R.
The penalty for each offence is commensurate with the existing
penalties in section 96 of the Forests Act for the illegal taking of
wood from State forest.
Proposed section 57ZA enables the Secretary to limit the amount
of wood (to an amount less than 16 cubic metres) that can be
taken from firewood collection areas (under both the Forests Act
and the CLR Act) in a particular region during firewood
collection seasons in a financial year. The Secretary may only do
so where the Secretary is satisfied that the limitation is necessary
for management of the supply of firewood in the region.
This may be necessary if the firewood resource in a particular
region is scarce.
A regional limit must be published in the Government Gazette
and cannot be made after the start of a financial year, so as to
avoid placing people in breach of the offences in proposed
section 57ZB if they have already collected higher amounts
8
(up to the 16 cubic metre household limit) from the particular
areas before a regional limit (of less than 16 cubic metres) is
determined.
A regional limit imposed under this section only applies to
particular firewood collection areas, so that--
a household that collects all their firewood from
firewood collection areas within the region will
effectively be subject to a reduced household limit for a
financial year;
a household that collects their firewood from firewood
collection areas both within and outside the region will
still be able to collect the 16 cubic metre household
limit provided that they do not collect more than the
limit in firewood collection areas within the region.
They are able to supplement the reduced amount of
wood with wood from firewood collection areas outside
the region.
Proposed section 57ZB contains offences that give effect to the
reduced limit.
Subsection (1) contains an offence for a person to collect wood
from firewood collection areas to which the reduced limit
applies, in excess of the reduced limit. The wood which
determines whether the reduced limit has been reached is the
wood taken in restricted firewood collection areas in the region
by any member of the household and any nominee of any
member of the household for use in the household.
Subsection (2) contains a corresponding offence for a nominee to
collect more wood than the reduced limit allows from firewood
collection areas to which the reduced limit applies. The wood
which determines whether the limit is reached for the purposes of
this offence is the wood collected for use in the nominating
person's household.
Proposed section 57ZC creates two separate offences for the sale
of wood collected under the scheme - one applying to any person
who collects wood themselves (whether for themselves or for a
nominating person) and another applying to a nominating person
who receives wood that has been collected by a nominee.
The penalties for the offences are commensurate with the existing
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offences in section 96 of the Forests Act in relation to unlawful
taking of wood from State forest.
Proposed section 57ZD establishes a range of offences that apply
in firewood collection areas.
Subsections (1) and (2) prevent a person from taking visibly
hollow logs, or logs growing moss or fungi.
Subsections (3) and (4) prevent a person from felling or
damaging standing trees. Subsections (3) and (4) are identical
except that subsection (3) relates to smaller trees. This is to
enable the offence to be enforceable by infringement notice,
while maintaining the higher penalties (commensurate with
existing section 96) for more established trees.
Proposed section 57ZE creates an offence for a person nominated
under section 57R (and, by reason of the definition of "nominee"
in section 57O, a person nominated under section 21M of the
CLR Act) to fail to produce their nomination form if required by
an authorised officer.
Proposed section 57ZF provides that the offences in proposed
sections 57W, 57X, 57Y, 57ZB, 57ZC and 57ZD do not apply to
people who are acting in accordance with any lease, licence,
permit or authorisation under the Forests Act or any other Act or
regulations or under a natural resource authorisation order under
the Traditional Owner Settlement Act 2010. This ensures that
people carrying out activities in relation to wood in a State forest
who are authorised on some basis other than the new scheme do
not commit the offences that are specific to the new scheme.
Clause 6 amends section 59 of the Forests Act to provide that the offence
in that section (in particular, removing timber from protected
forest without a permit) does not apply to a person acting under
the new scheme. The section makes a similar amendment to
cover persons acting under a natural resource authorisation order
made under section 84 of the Traditional Owner Settlement
Act 2010.
Clause 7 amends section 75 of the Forests Act to bring the penalty for the
offence in that section into line with the penalty for the
administrative offence in proposed section 57ZE. The offences
in section 75 and section 57ZE are of a similar nature (failing to
provide a lease, licence, permit, authority or nomination to an
authorised officer).
10
Clause 8 makes a consequential amendment to section 77 of the Forests
Act to create an exception to a prohibition in that section relating
to cutting or removing trees (among other activities) on roads in
State forest. The prohibition will not apply to a person who cuts
and takes away wood in a firewood collection area under the new
scheme.
Clause 9 repeals section 79(5) of the Forests Act, which is a redundant
reverse legal onus provision. It is redundant because it related to
proceedings referred to in section 79(4), which has been repealed,
and it overlaps with section 82 of the Forests Act.
Clause 9 also amends section 79(6) to--
repeal an outdated prohibition on removing or taking
forest produce on Sundays;
update the prohibition on removing or taking forest
produce after dark to include the periods of dawn and
dusk;
include more appropriate penalties for the above
prohibition and the existing offence of failing to follow
a directed route when removing forest produce or timber
resources from State forest.
Clause 10 makes a consequential amendment to section 82 of the Forests
Act to stop the reverse legal onus provision from applying to
proceedings concerning wood that may be collected under the
new scheme without a permit, and other timber. Instead, a
reverse evidentiary burden will apply to such wood and other
timber. The amendment to section 82 will require an accused to
produce evidence to a court on the question of having a lawful
basis for having acquired timber. In the case of a person to
whom proposed section 57Q(4) applies, the accused will be
required to present or point to evidence as to the taking of fallen
or felled trees from a particular firewood collection area during
a firewood collection season for domestic use as firewood.
This change results in a lesser burden applying to the accused.
In all other cases, an accused who has been acting lawfully will
be able to present evidence as to ownership by producing a
licence, permit or other authority which authorised the accused
to interfere with or acquire the forest produce in question.
This amendment is being made to ensure that the presumption
in section 82 as to ownership of forest produce can continue to
11
operate in a fair and reasonable manner following the
introduction of the new scheme.
Clause 11 makes a consequential amendment to section 83 of the Forests
Act to ensure that there continues to be a power to obtain a search
warrant in relation to the wood which may be collected under the
new scheme without a permit. Presently, a warrant may be
sought under section 83 only where an authorised officer believes
that forest produce that is liable to the payment of royalties, dues
or other charges has been taken from State forest. However, the
new scheme introduced by the Bill creates circumstances in
which some forest produce (wood used as domestic firewood)
will be free. This creates a gap in the applicability of section 83.
In order to avoid this, clause 11 amends section 83 so that a
search warrant may also be sought where timber (as defined in
section 3 of the Forests Act and which includes the wood subject
to the new firewood scheme) is suspected of having been taken in
contravention of the Act or the regulations, and regardless of
whether the forest produce is liable to the payment of royalties,
dues or charges. Warrants under section 83 (as amended by the
Bill) will still only be able to be sought from a magistrate based
on the sworn evidence of a member of the police force or an
authorised officer as to suspected illegal conduct with respect to
forest produce.
Clause 12 inserts section 96D into the Forests Act. Proposed section 96D
provides that a person who cuts and takes away wood as
permitted under proposed section 57Q(4) does not commit a
range of relevant offences under section 96 of the Forests Act.
Clause 13 inserts section 100B into the Forests Act. Proposed section 100B
will allow regulations to be made in relation to the conduct of
persons in firewood collection areas. The regulations may create
offences and impose penalties not exceeding 20 penalty units for
a contravention of the regulations.
PART 3--AMENDMENTS TO THE CROWN LAND
(RESERVES) ACT 1978
Part 3 of the Bill contains clauses 14 to 20, which amend the CLR Act.
In the following explanations, a reference to the Secretary is a reference to
the Secretary to the Department of Sustainability and Environment and a
reference to wood is a reference to the wood from fallen or felled trees
(see clause 14).
12
The scheme to be inserted into the CLR Act is virtually identical to the
scheme to be inserted into the Forests Act by Part 2 of the Bill, except that it
only applies to two regional parks under the CLR Act where the removal of
firewood is currently provided for under that Act.
Clause 14 inserts key definitions into section 3 of the CLR Act of fallen or
felled trees, firewood collection area and firewood collection
season. These essentially mirror the definitions inserted into the
Forests Act by clause 3 of the Bill. Clause 14 also inserts a
definition of tree (or trees) to mirror the definition in section 3 of
the Forests Act.
Clause 15 makes a consequential amendment to section 20 of the CLR Act,
which requires that the Secretary obtain consent of the person
having control and management of the land before authorising a
person to use land reserved under the CLR Act to produce or
procure forest produce. The amendment clarifies that a
determination of a firewood collection area by the Secretary
under proposed section 21P does not fall within the scope of
section 20(1). Section 21P contains a related provision requiring
the Secretary to consult with the person having control and
management of the land before determining a firewood collection
area (see below).
Clause 16 inserts Part 3B into the CLR Act, which contains sections 21K
to 21Z. In many instances, these new provisions are virtually
identical to proposed sections 57O-57ZF of the Forests Act
(see clause 5). Where appropriate, the explanations below to
particular new sections of the CLR Act should be read in
conjunction with the more detailed explanations to the
corresponding Forests Act provisions in clause 5 of the Bill.
Definitions
Proposed section 21K contains definitions of nominating person,
and nominee, which mirror the definitions in proposed
section 57O of the Forests Act.
Application of scheme
Proposed section 21L creates an overarching offence of taking
wood from land reserved under the Act. The offence applies to
all land reserved under the CLR Act. The exceptions relate to
activity that is lawful on other bases under the CLR Act or other
Acts or regulations (subsection 3), and to the cutting and taking
13
away wood in firewood collection areas in accordance with the
new scheme (subsection 4).
Nominees
Proposed section 21M sets out the machinery for a person
(a nominating person) to nominate another to cut and take away
wood on their behalf, similar to proposed section 57R of the
Forests Act inserted by clause 5 of the Bill. Section 21M also
contains mirror offences to section 57R of the Forests Act.
Firewood collection seasons
Proposed section 21N establishes the default statewide firewood
collection seasons for land under the CLR Act, which are
essentially during spring and autumn in every financial year and
which are identical to those established under proposed
section 57S of the Forests Act. The default seasons may be
varied under proposed section 21O (see below).
Proposed section 21O enables the Secretary to vary a firewood
collection season, either across the state or in particular regional
parks, but only where the Secretary believes it is necessary to do
so because there is a risk, or likely risk, to public safety because
of actual or likely fire danger. The example given in relation to
proposed section 57T of the Forests Act is also relevant to
proposed section 21O.
Firewood collection areas
Proposed section 21P enables the Secretary to create firewood
collection areas within Shepparton Regional Park and,
potentially, the Murray River Park (if that park is created under
section 48BA of the CLR Act). Firewood collection areas may
not be created under this Act in respect of any other land reserved
under the Act. (Firewood collection areas under the Forests Act
may nevertheless apply to certain land reserved under the CLR
Act that is managed as State forest under the Forests Act.
This applies to Cobboboonee Forest Park and Otway Forest Park
(by virtue of section 18A of the Forests Act) and part of Kurth
Kiln Regional Park (by virtue of section 55 of the CLR Act).)
In other respects, proposed section 21P is identical to proposed
section 57U of the Forests Act.
Proposed section 21Q sets out requirements as to signage in
relation to firewood collection areas, equivalent to proposed
section 57V of the Forests Act.
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Collection restrictions
Proposed section 21R creates offences associated with any
determination under section 21P that restricts the cutting and
taking away of firewood to a class or classes of persons and their
nominees. The offences prevent persons who are not members of
the class of persons to whom the area is restricted from cutting
and taking away firewood in those areas. The penalties for the
offences are identical to those in proposed section 57W of the
Forests Act.
Proposed section 21S creates a daily collection limit from
firewood collection areas of 2 cubic metres of wood per person,
irrespective of whether the person is collecting firewood for their
own domestic use or that of a nominating person. The offences
and penalties are identical to those in proposed section 57X of the
Forests Act. As with section 57X(4), section 21S(4) defines
"firewood collection area" to include firewood collection areas
under the Forests Act. This links the schemes under the Forests
Act and the CLR Act such that wood collected under one scheme
counts toward the (identical) limits imposed under the other
scheme, to avoid creating separate (and effectively doubled)
limits.
Proposed section 21T establishes a 16 cubic metre limit on the
amount of wood that can be taken per household per financial
year. By reason of proposed section 21S(4), section 21T refers to
"firewood collection areas" under both the CLR Act and the
Forests Act. Proposed section 21T enforces the limit by creating
an offence that mirrors the offence in section 57Y of the Forests
Act.
Proposed section 21U mirrors proposed section 57Z of the
Forests Act, creating offences to make the annual limit effective
when used in combination with nominations and a range of
nominees.
Proposed section 21V mirrors proposed section 57ZB of the
Forests Act in relation to offences of exceeding a reduced limit
determined by the Secretary under proposed section 57ZA of the
Forests Act.
Proposed section 21W creates a specific offence for a person to
sell wood that has been cut and taken away under the new
scheme, mirroring proposed section 57ZC of the Forests Act.
15
Proposed section 21X establishes a range of offences that apply
in firewood collection areas under the CLR Act, mirroring
proposed section 57ZD of the Forests Act. The one difference
between section 21X and section 57ZD is that section 21X also
includes an offence relating to cutting or taking away wood after
dark (section 21X(3)). The equivalent conduct in State forest is
regulated by section 79(6) of the Forests Act, which is being
amended by clause 9 of the Bill.
Proposed section 21Y creates an offence for a nominee to fail to
produce their nomination form if required by an authorised
officer, mirroring proposed section 57ZE of the Forests Act.
Proposed section 21Z provides that the offences in proposed
sections 21R, 21S, 21T, 21V, 21W and 21X do not apply to
people who are acting in accordance with a relevant authority
under the CLR Act or other Acts or regulations. This ensures
that people carrying out activities in relation to wood who are
authorised on some basis other than the new scheme do not
commit the offences that are specific to the new scheme.
Clause 17 amends section 29IB of the CLR Act. Subclause (1) amends the
heading to section 29IB to reflect the operation of subclause (2).
Subclause (2) repeals section 29IB(1), which allowed permits to
be issued in Shepparton Regional Park for the cutting and taking
away of domestic firewood. The provision will become
redundant after the insertion of Part 3B by clause 16 of the Bill.
Subclause (3) amends section 29IB(2) to replace the term "forest
produce" with "fallen or felled trees", a definition of which is
inserted into section 3 by clause 14 of the Bill.
Clause 18 inserts section 30A into the CLR Act. Proposed section 30A
imposes a reverse evidentiary burden in proceedings concerning
a person who is found in Shepparton Regional Park or the
potential Murray River Park in possession of wood to which the
new scheme applies (and also, necessarily by virtue of the
definition of "timber", other timber). The provision replaces the
existing reverse legal onus in section 200 of the Land Act 1958
(see clause 21) in the circumstances to which section 30A will
apply. This section has the same effect as the amendments made
to section 82 of the Forests Act by clause 10 of the Bill.
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Clause 19 inserts a new section 32 into the CLR Act. Proposed section 32
will allow regulations to be made in relation to the conduct of
persons in firewood collection areas under the CLR Act and the
prescribing of the nomination form for the purposes of proposed
section 21M. The regulations may create offences and impose
penalties in accordance with section 32(2). The regulation
making power is similar to the regulation making power in
proposed section 100B of the Forests Act (which is inserted by
clause 13 of the Bill).
Clause 20 amends section 63B of the CLR Act.
Subclause (1) amends the heading to reflect the operation of
subclause (2).
Subclause (2) repeals section 63B(1), which would have allowed
permits to be issued in the Murray River Park (if created under
section 47BA of the CLR Act) for the cutting and taking away of
domestic firewood. The provision will become redundant after
the insertion of Part 3B by clause 16 of the Bill.
Subclause (3) amends section 63B(2) to replace the term "forest
produce" with "fallen or felled trees", a definition of which is
inserted into section 3 of the CLR Act by clause 14 of the Bill.
PART 4--AMENDMENTS TO OTHER ACTS AND REPEAL
OF AMENDING ACT
Part 4 contains consequential amendments to the Land Act 1958, the
National Parks Act 1975 and the Wildlife Act 1975, and the usual self-
repealing provision for amending Acts.
Division 1--Amendment to the Land Act 1958
Clause 21 amends section 200 of the Land Act 1958, which is a reverse
legal onus provision relating to persons found with various
natural resources on Crown land. The amendment is intended to
avoid inconsistency with section 82 of the Forests Act (as
amended by clause 10 of the Bill) and proposed section 30A of
the CLR Act (inserted by clause 18 of the Bill) by ensuring that
the reverse legal onus provision does not apply to wood to which
the new scheme under the Forests Act and the CLR Act (and
also, by virtue of the definition of "timber", other timber) applies.
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Division 2--Amendment to the National Parks Act 1975
Clause 22 inserts section 44A into the National Parks Act 1975, which
contains two new general offences for taking fallen or felled trees
from a park under the Act. The offences cover the same conduct
as proposed sections 57Q of the Forests Act, 21L of the CLR Act
and 21AA of the Wildlife Act 1975. As with those other general
offences, subsections (1) and (2) of section 44A relate to identical
conduct except that subsection (1) relates exclusively to amounts
of 2 cubic metres or less, and has a lower penalty. This is
intended to enable the offence to be enforceable by infringement
notice, while maintaining the higher penalties for greater amounts
of firewood.
The offences are being inserted into the Act as a consequence of
inserting a firewood collection scheme into the Forests Act and
the CLR Act, to ensure parity and consistency between the
offence regimes relating to firewood across the main areas of
public land.
Subsection (3) provides that the offences do not apply to people
who are acting in accordance with a relevant authority under the
National Parks Act 1975 or other Acts or regulations.
This ensures that people carrying out activities in relation to
wood who are authorised on some basis to do so do not commit
the offences.
Subsection (4) provides definitions of fallen or felled trees and
tree (or trees) so that those terms will be consistent with their
counterparts in the Forests Act.
Division 3--Amendment to the Wildlife Act 1975
Clause 23 inserts section 21AA into the Wildlife Act 1975.
Proposed section 21AA contains two new general offences
identical to the offences in proposed sections 57Q of the Forests
Act, 21L of the CLR Act and 44A of the National Parks Act
1975. The structure and scope of the offences, and the reason
for their insertion, are identical to that for section 44A of the
National Parks Act 1975, except that the offences apply to State
Wildlife Reserves and Nature Reserves under the Wildlife Act
1975.
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Division 4--Repeal of amending Act
Clause 24 provides that the Forests Amendment Act 2012 is repealed on
1 September 2013. This repeal does not affect the continuing
operation of the amendments made by the Act (see section 15(1)
of the Interpretation of Legislation Act 1984).
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