Private Forests Act 1994 (Tas)

Private Forests Act 1994 An Act to establish an authority to provide assistance and advice on private forest management, to prescribe the functions and powers of that authority, to provide for related matters and to amend certain Acts [Royal Assent 10 May 1994] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Private Forests Act 1994 . 2. Commencement (1) This Act, except this section and sections 1 and 44 , commences on the day on which the Forestry Amendment (Forestry Corporation) Act 1994 commences. (2) This section and sections 1 and 44 commence on the day on which this Act receives the Royal Assent. 3. Interpretation In this Act, unless the contrary intention appears – annual report means the annual report for the Authority prepared under section 32E ; Australian Accounting Standards means Statements of Accounting Standards issued jointly by the National Councils of the Australian Society of Certified Practising Accountants and The Institute of Chartered Accountants in Australia or their successors; Authority means Private Forests Tasmania established under section 4 ; Board means the Board of Directors of the Authority; chairperson means the chairperson of the Board; chief executive officer means the chief executive officer of the Authority appointed under section 16 ; corporate plan means the corporate plan approved under section 19D ; director means a person appointed as a director of the Board or the chief executive officer; employee means a person appointed or employed pursuant to section 19 ; financial statements means the financial statements prepared under section 32B ; forest owners organisations means such organisations as the Minister is satisfied can properly be regarded as associations of owners of private commercial forests carried on wholly or partly for the purposes of marketing the timber obtained from those forests; Forest Practices Authority means the body referred to in section 4AA of the Forest Practices Act 1985 ; forest produce means all vegetable growth and the products of growing or dead trees, shrubs, timber or other vegetable growth; forestry dedication covenant means a covenant referred to in section 33 ; functions includes duties and responsibilities; industrial private forest grower means a grower of timber who is directly engaged in sawmilling or allied industries or in industries using or processing pulpwood (including the production of woodchips); ministerial charter means the charter provided under section 19A ; non-industrial private forest grower means a grower of timber other than an industrial private forest grower; partner means the person with whom a person is in a personal relationship, within the meaning of the Relationships Act 2003 ; private commercial forest means any land (not being Crown land or land owned by the Forestry corporation, continued by section 6 of the Forest Management Act 2013 , that supports a merchantable stand of timber or that is being managed with a view to producing timber of merchantable quality (including firewood); private commercial forestry includes all matters affecting the establishment, development or management of private commercial forests or the disposal or use of the produce of private commercial forests; regulations means regulations made and in force under this Act; statement of corporate intent has the meaning given by section 19F ; timber includes the trunks and branches of trees, whether standing or not, and all wood, whether or not the same is cut up, sawn, hewn, split or otherwise fashioned; Treasurer's Instructions has the same meaning as in the Government Business Enterprises Act 1995 ; trees includes not only timber trees, but trees, shrubs and bushes, seedlings, saplings and re-shoots of every description. PART 2 - Private Forests Tasmania 4. Private Forests Tasmania (1) Private Forests Tasmania is established. (2) Private Forests Tasmania – (a) is a body corporate with perpetual succession; and (b) has a seal; and (c) may sue and be sued in its corporate name. 5. Objectives of the Authority The objectives of the Authority are specified in Schedule 1 . 6. Functions of Authority (1) The functions of the Authority are as follows: (a) to advise the Minister on all matters relating to private forestry; (b) to provide assistance and advice on forest establishment and management for commercial purposes and on the use of trees for sustainable land management; (c) to process applications for private timber reserves under the Forest Practices Act 1985 pursuant to a delegation from the Forest Practices Authority under that Act; (d) to promote opportunities for more competitive markets for private forest owners; (e) to advise, assist and facilitate the private forest sector in the development of relevant infrastructure; (f) to maintain and update an inventory of private forests and prepare five-yearly reviews of private forests; (g) to provide advice and assistance to the Forest Practices Authority for implementation of the Forest Practices Act 1985 on private forest lands; (h) to provide co-ordinated input on behalf of private forest growers on land use issues; (i) to promote private forestry research and education; (j) to examine matters relating to the conservation of flora, fauna, land forms, cultural heritage and care of the environment on private forest lands; (k) to encourage whole-farm planning on private land including strategic planning and appropriate technical and policy development; (l) to develop plans to deliver funding for private forestry programmes from private forest owners; (la) to contribute to state and national reporting on private forest matters; (lb) to advocate on behalf of private forest owners in the formulation and review of state and national forest-related policies, programmes and legislation; (lc) to implement and manage priority projects on behalf of private forest owners; (m) to perform such other functions as are imposed on it by this or any other Act. (2) The costs and expenses incurred by the Authority in performing the functions specified in paragraphs (a) , (g) , (h) , (i) , (j) and (k) of subsection (1) are to be paid out of money provided by Parliament for the purpose. (3) Notwithstanding subsection (2) , any money not provided by Parliament which is at the Authority's disposal may be applied towards the payment of any of the costs and expenses referred to in that subsection. 7. Powers of Authority In addition to such other powers as are conferred on it by this or any other Act, the Authority has power to do all things necessary or convenient to be done in connection with the performance of its functions including acquiring, holding, disposing of and otherwise dealing with property. PART 3 - Board of Directors Division 1 - Board 8. Board (1) The Authority has a Board of Directors consisting of – (a) a person with practical knowledge of, and experience in, industry, commerce or economic development; and (b) three persons representing private forest growers of whom – (i) one represents industrial private forest growers; and (ii) two represent non-industrial private forest growers; and (c) a person with expertise in forest or related sciences; and (d) the chief executive officer. (2) The directors referred to in subsection (1) (a) , (b) and (c) are to be appointed by the Minister after the Minister has consulted the forest owners organisations. (3) The Minister is to appoint a director referred to in subsection (1) (a) , (b) or (c) to be the chairperson of the Board. (4) The Board may, at its first meeting, elect one of its members to be deputy chairperson of the Board. (5) Schedule 2 has effect with respect to the directors. (6) Schedule 3 has effect with respect to the meetings of the Board. 9. Role of Board The role of the Board is – (a) to manage and conduct the business and affairs of the Authority in a manner that is in accordance with sound commercial practice; and (b) to determine the strategies and policies of the Authority; and (c) to perform such other functions as are imposed on it by this Act or as are prescribed. 10. Powers of Board The Board has power to do all things necessary or convenient to be done in connection with the performance of its functions under this or any other Act. 11. Delegation The Board may, in writing, delegate any of its functions or powers other than this power of delegation. 12. Committees (1) The Board – (a) must establish an audit committee; and (b) may establish such other committees as it considers appropriate. (2) A committee – (a) must provide the Board with advice on any matter referred to it by the Board; and (b) must perform any functions, and may exercise any powers, delegated to it by the Board. (3) In addition to its functions under subsection (2) , the audit committee must provide the Board with advice on – (a) the internal audit charter of the Authority; and (b) monitoring the Authority's systems of financial reporting and internal control; and (c) the resources necessary for the performance of the internal audit function of the Authority. (4) Schedule 4 has effect with respect to – (a) the members of a committee; and (b) the meetings of a committee. Division 2 - Directors generally 13. Duties of directors (1) A director must act honestly, exercise reasonable care and be diligent in the performance of the functions, and the exercise of the powers, of a director. Penalty: Fine not exceeding 50 penalty units. (2) A director must not improperly use information acquired as a director – (a) to gain, directly or indirectly, a personal advantage or an advantage for another person; or (b) to cause damage to the Authority. Penalty: Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 5 years, or both. (3) A director must not improperly use his or her position as a director – (a) to gain, directly or indirectly, a personal advantage or an advantage for another person; or (b) to cause damage to the Authority. Penalty: Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 5 years, or both. 14. Repayment by director of improper profit, &c. If a director is found guilty of an offence under section 13 , the Authority may recover in a court of competent jurisdiction as a debt due to it – (a) any profit made by the director or another person as a result of the committing of the offence; and (b) an amount equal to any loss and damage the Authority suffered as a result of the committing of the offence. 15. Acting directors (1) In this section, absent, in relation to a director referred to in section 8 (1) (a) , (b) or (c) , means – (a) absent from duty; or (b) absent from Australia; or (c) otherwise unable to perform the functions of the office of director. (2) The Minister may appoint a person to act as a director referred to in section 8 (1) (a) , (b) or (c) if the director referred to in section 8 (1) (a) , (b) or (c) is absent. (3) While a person appointed under subsection (2) is acting as a director – (a) that person is taken to be a director; and (b) this Act applies to that person as if he or she were a director. (4) The appointment of a person to act as a director terminates when the absent director resumes the performance of his or her functions as director. PART 4 - Staff Division 1 - Chief executive officer 16. Chief executive officer (1) The office of chief executive officer is a prescribed office for the purposes of the State Service Act 2000 . (2) . . . . . . . . (3) . . . . . . . . (4) . . . . . . . . 17. Role of chief executive officer (1) The chief executive officer is responsible to the Board for the general administration and management of the Authority in accordance with the State Service Act 2000 . (2) The chief executive officer – (a) must perform any functions, and may exercise any powers, delegated to the chief executive officer by the Board; and (b) must perform any other functions imposed on, and may exercise any other powers granted to, the chief executive officer by this or any other Act. 18. Disclosure of interests The chief executive officer must inform the chairperson, in writing, of any direct or indirect pecuniary interest that the chief executive officer has in any business or body corporate that carries on a business as soon as practicable after the chief executive officer acquires or becomes aware of that interest. Division 2 - Other staff 19. Staff Subject to and in accordance with the State Service Act 2000 , such persons as the Authority considers necessary may be appointed or employed for the purposes of enabling it to perform its functions or exercise its powers. PART 4A - Charters and Plans Division 1 - Ministerial charter 19A. Ministerial charter (1) By 31 December 1995, the Minister must provide the Authority with a ministerial charter. (2) The Minister may at any time at his or her own discretion or on receipt of the application of the Authority – (a) amend a ministerial charter; or (b) revoke a ministerial charter and substitute another ministerial charter. (3) Before or while preparing a ministerial charter or an amendment to a ministerial charter, the Minister must consult with the Authority. (4) A ministerial charter and any amendment to a ministerial charter is to be in writing and signed by the Minister. (5) . . . . . . . . (6) A ministerial charter or any amendment to a ministerial charter takes effect on a day specified in it, being a day not earlier than the day on which it is provided to the Authority. 19B. Contents of ministerial charter (1) A ministerial charter is to specify the broad policy expectations of the Minister for the Authority. (2) A ministerial charter may limit the functions and powers of the Authority and the performance and exercise of those functions and powers, but – (a) may not prevent the Authority from performing a function it is required to perform or otherwise complying with this or any Act; and (b) may not extend the functions and powers of the Authority. 19C. Compliance with ministerial charter The Board must ensure that the business and affairs of the Authority are conducted in a manner that is consistent with the ministerial charter. Division 2 - Plans of Authority 19D. Corporate plan (1) In each financial year, the Board must prepare a corporate plan for the Authority. (2) The corporate plan – (a) is to cover a period of not less than 3 financial years commencing on the day it takes effect; and (b) is to contain a summary of the projected financial results of the Authority in respect of the current financial year and each financial year covered by the plan; and (c) is to contain a summary of the financial results of the Authority in respect of the financial year immediately preceding the current financial year; and (d) is to contain the statement of corporate intent; and (e) is to be in a form and contain the information specified by the Minister; and (f) is to be consistent with the ministerial charter. (3) The Board must provide a draft of the corporate plan to the Minister and Treasurer not later than 90 days before the day on which the corporate plan will take effect. (4) When a draft corporate plan is approved by the Minister it becomes the corporate plan of the Authority. (5) The Minister must approve a corporate plan, prepared in accordance with this section and section 19E , by not later than 30 days before the day on which the corporate plan will take effect. (6) A corporate plan takes effect on the first day of the financial year next commencing after its approval by the Minister. (7) A Board may prepare an amendment of its corporate plan at any time. (8) An amendment of a corporate plan takes effect when it is approved by the Minister. (9) The Board must provide a copy of its corporate plan and an amended corporate plan to the Treasurer within 14 days after the Board has been notified of its approval by the Minister. (10) Except where the Minister otherwise approves, the Authority must act in accordance with its corporate plan or amended corporate plan. 19E. Consultation with Portfolio Minister (1) In the course of preparing the draft corporate plan, the Board must consult with the Minister in relation to – (a) the interests of the State as a whole; and (b) the financial performance objectives of the Authority; and (c) the long-term objectives of the Authority. (2) The Minister may give a direction to the Board – (a) in relation to a long term objective of the Authority; or (b) if the Minister considers the draft corporate plan to be inconsistent with the ministerial charter, in relation to that inconsistency. (3) The Minister may give a direction to the Board in relation to the financial performance objectives of the Authority. (4) Subject to subsection (5) , the Board must comply with a direction referred to in subsection (2) or (3) if it is in writing and signed by the Minister. (5) A direction has no effect in respect of a contract entered into by the Authority before the direction was given if compliance with the direction would result in the Authority failing to perform the contract. 19F. Statement of corporate intent (1) The statement of corporate intent of the Authority is a summary of its corporate plan. (2) The statement of corporate intent of the Authority must not disclose any information which the Minister considers may, if disclosed – (a) disadvantage or cause damage to the Authority, directly or indirectly; or (b) enable another person, directly or indirectly, to gain an advantage. (3) The statement of corporate intent is to be in a form, and contain the information, specified by the Minister. 19G. Strategic and operating plans (1) The strategic plan of the Authority in force immediately before 1 July 1995 together with its operating plan in force immediately before that day is taken to be a corporate plan that takes effect on that day. (2) The Authority must prepare a statement of corporate intent in respect of the corporate plan referred to in subsection (1) in sufficient time to enable it to be included in the annual report in respect of the financial year ending on 30 June 1995. (3) In subsection (1) , operating plan and strategic plan have the same meanings as in the State Authorities Financial Management Act 1990 as in force immediately before 1 July 1995. 19H. Validity of actions, &c. Anything done by or in relation to the Authority is not void or unenforceable only because the Authority has contravened this Part. PART 5 - Financial Division 1 - Finances of Authority 20. Funds of Authority (1) The funds of the Authority consist of – (a) all money received by it in the course of performing its functions or exercising its powers; and (b) money provided by Parliament for the purposes of this Act; and (c) all other money received by it from any other source. (2) The funds of the Authority are to be applied – (a) in the payment or discharge of the expenses, charges and obligations incurred or undertaken by the Authority in the performance of its functions and the exercise of its powers; and (b) in payment of the remuneration of its directors; and (c) in any other manner authorized or required under this or any other Act. 21. Authorised deposit-taking institution accounts (1) The Authority may open and maintain such authorised deposit-taking institution accounts as it considers necessary. (2) Any money received by the Authority is to be paid into an account established under subsection (1) . 22. Temporary investment of funds The Authority may invest any money that it is holding and for which it has no immediate use in any manner in which trustees are authorized to invest trust funds under the Trustee Act 1898 . 23. Reserves The Authority may establish and maintain reserves. 24. Borrowing from Treasurer (1) The Treasurer may lend to the Authority, out of money provided by Parliament for the purpose, such money as the Treasurer considers appropriate. (2) A loan is subject to conditions determined by the Treasurer. (3) An amount lent under subsection (1) and any interest or other charge payable in respect of the loan is a debt repayable by the Authority into the Public Account. 25. Borrowing from person other than Treasurer (1) The Authority may borrow money from a person or body other than the Treasurer for the purposes of performing its functions and achieving its objectives. (2) The total of all amounts of money borrowed under this section during a financial year must not exceed the maximum amount determined by the Treasurer, in writing, in respect of that financial year. (3) The Authority may use all or part of its assets as security for money borrowed by it under subsection (1) and any interest or charges payable in respect of that borrowing. (4) . . . . . . . . (5) . . . . . . . . (6) . . . . . . . . (7) . . . . . . . . 25A. Effect of Financial Agreement Act 1994 Where the Treasurer, under section 5(1) of the Financial Agreement Act 1994 , requires the Authority to do or refrain from doing anything for the purpose of implementing the Agreement, within the meaning of that Act, the Authority must comply with that requirement. Division 1A - Private forest service levy 25B. Interpretation of Division (1) In this Division, unless the contrary intention appears – certified, in respect of a forest practices plan, means certified under section 19 of the Forest Practices Act 1985 ; certified forest practices plan has the same meaning as in the Forest Practices Act 1985 ; Crown land has the same meaning as in the Crown Lands Act 1976 ; due date means – (a) in relation to a levy payable in respect of a forest practices plan which was certified during the transitional period, the day on which the period of 6 months commencing on the Royal Assent date ends; and (b) in relation to a levy payable in respect of a forest practices plan which was certified on or after the Royal Assent date, the day by which a levy must be paid under section 25F ; forest practices plan has the same meaning as in the Forest Practices Act 1985 ; levy means the private forest service levy or further private forest service levy payable under section 25C ; levy rate means the levy rate determined or specified under section 25I that has effect in the financial year in which liability to pay the levy arises; nett area of forest operation is the total of all areas of land that are shown on a prescribed certified forest practices plan as – (a) native forest to be harvested as private commercial forest; or (b) plantations to be harvested as private commercial forest – (c) less any areas of land within the areas referred to in paragraphs (a) and (b) that are owned by the Forestry corporation continued by section 6 of the Forest Management Act 2013 , are Crown land or are prescribed areas of land; owner of any land has the same meaning as "owner of land" has in the Forest Practices Act 1985 ; prescribed certified forest practices plan means a certified forest practices plan that was not prepared and certified under the Forest Practices Act 1985 solely for one or more of the following purposes: (a) the construction of a road; (b) the operation of a quarry; (c) the thinning of plantation forests; (d) a purpose prescribed by the regulations for the purposes of this definition; responsible person, in relation to land, has the same meaning as in section 17 of the Forest Practices Act 1985 ; Royal Assent date means the day on which the Private Forests Amendment Act 2001 receives the Royal Assent; transitional period means the period commencing on 24 August 2001 and ending on the commencement of the Royal Assent date. (2) A forest practices plan that is certified during the transitional period is taken to have been certified on the Royal Assent date for the purposes of this Division. 25C. Liability to pay private forest service levy (1) On the certification of a forest practices plan under the Forest Practices Act 1985 , the owner of the nett area of forest operation must pay a private forest service levy if that plan is a prescribed certified forest practices plan. (2) On the variation of a prescribed certified forest practices plan under the Forest Practices Act 1985 that, in the opinion of the Authority, significantly increases the nett area of forest operation, the owner of the nett area of forest operation must pay a further private forest service levy in respect of the difference between – (a) the nett area of forest operation shown on the prescribed certified forest practices plan before it is so varied and in respect of which a levy has been paid; and (b) the nett area of forest operation shown on the prescribed certified forest practices plan as so varied. 25D. Amount of levy The amount of the levy payable is the levy rate multiplied by the number of hectares of nett area of forest operation. 25E. Notification of requirement to pay levy Within 30 days after – (a) becoming aware of the certification of a forest practices plan that, on that certification, becomes a prescribed certified forest practices plan; or (b) becoming aware of the variation of a prescribed certified forest practices plan that, in the opinion of the Authority, substantially increases the nett area of forest operation – the Authority is to notify the owner of the nett area of forest operation, in writing, of the amount of the levy payable. 25F. Payment of private forest service levy (1) The levy is payable to the Authority. (2) An owner of a nett area of forest operation is to pay the levy within 6 months after the day on which the prescribed certified forest practices plan giving rise to the liability to pay the levy is certified. (3) If the whole or any part of the levy payable is not paid by the due date, the Authority may recover in a court of competent jurisdiction as a debt due to it that unpaid amount and any further amount payable as a penalty under section 25G . 25G. Penalty for late payment (1) If the whole or any part of the levy payable is not paid by the due date, the owner of the nett area of forest operation is liable to a penalty calculated at the rate of 20% a year of the amount unpaid as from that due date. (2) The Authority, by notice in writing, may exempt the owner from payment of all or part of a penalty payable under subsection (1) if satisfied that – (a) notice of the amount of the levy, that the Authority was required to provide to the owner under section 25E , was not provided; or (b) notice of the amount of the levy, that the Authority was required to provide to the owner under section 25E , was not provided within the time specified in that section and it would be unjust not to grant the exemption; or (c) the payment would cause the owner undue hardship. 25H. Variation of levy (1) In this section, relevant time, in relation to a nett area of forest operation, means the time at which the prescribed certified forest practices plan identifying that area was lodged for certification under the Forest Practices Act 1985 . (2) The Authority, by notice provided to the owner of a nett area of forest operation, may vary the amount of the levy payable if the nett area of forest operation is varied – (a) for the purposes of complying with any law which, at the relevant time – (i) did not affect the nett area of forest operation; or (ii) the person lodging the plan reasonably had not identified as affecting or likely to affect the nett area of forest operation; or (b) for the purposes of the public interest and the Minister has approved the variation of the area of the nett area of forest operation; or (c) for a prescribed purpose. (3) If – (a) an owner of a nett area of forest operation has paid the whole or any part of a levy in respect of the nett area of forest operation; and (b) that levy is varied under subsection (2) ; and (c) the amount so paid is greater than the amount of the levy as varied – the Authority must refund to the owner the amount paid that is in excess of the varied levy. 25I. Levy rate (1) By 30 June in each calendar year, the Minister must – (a) consult with the forest owners organisations in relation to the appropriate levy rate for the financial year commencing on 1 July in that calendar year; and (b) after so consulting with the forest owners organisations, determine the levy rate for that financial year. (2) The Minister is to determine the levy rate by notice in the Gazette. (3) A notice under subsection (2) – (a) takes effect on 1 July in the financial year in respect of which it is determined and ceases to have effect at the end of that financial year; and (b) is not a statutory rule for the purposes of the Rules Publication Act 1953 . (4) The levy rate for the financial year beginning on 1 July 2001 is $14. 25J. Cancellation of liability to pay levy (1) The owner of the nett area of forest operation shown on a forest practices plan that is a prescribed certified forest practices plan is not liable to pay a levy in respect of that nett area of forest operation if – (a) that plan is revoked or cancelled within 6 months after its certification; and (b) no activity of a kind for which a forest practices plan is required under the Forest Practices Act 1985 has been carried out or commenced before that revocation or cancellation. (2) The Authority must refund to the owner of a nett area of forest operation the whole or any part of a levy paid in respect of the nett area of forest operation if the owner is not liable to pay that levy because of subsection (1) . 25K. Waiving of levy The Authority may, in such circumstances as the Authority determin