Plaintiff v Defendant

APZ: Asset Protection Zone

BMZ: Bushfire Moderation Zone

Bushfire Code: Code of Practice for Bushfire Management on Public Land 2012

CFL Act: Conservation, Forests and Lands Act 1987

DELWP: Department of Environment, Land, Water and Planning

DEPI: Department of Environment and Primary Industry

DSE: Department of Sustainability and Environment

FMZ: Fire Management Zone

FMZS: Forest Management Zoning Scheme

GMZ: General Management Zone

LMZ: Landscape Management Zone

Management Standards: Management Standards and Procedures for timber harvesting operations in Victoria's State forests 2014

PBEZ: Planned Burning Exclusion Zone

SMZ: Special Management Zone

SPZ: Special Protection Zone

Sustainable Forests Act: Sustainable Forests (Timber) Act 2004

Timber Code: Code of Practice for Timber Production 2014

TRP: Timber Release Plan

1 This case is about the claims by the plaintiff, Kinglake Friends of the Forest Inc ('Kinglake'), that VicForests' timber harvesting in State forests in the Central Highlands of Victoria has exceeded the limits permitted. VicForests denies that is so. The resolution of this dispute turns on the meaning to be given to the following provision in the Management Standards and Procedures for timber harvesting operations in Victoria's State forests 2014 (the 'Management Standards'), which I will otherwise refer to as 'the Clause':[1]

5.8.1.5 In Bushfire Management Zones defined in the Code of Practice for Bushfire Management on Public Land 2012:

(a) In any five year period the area harvested using clearfall or seed tree harvesting must not exceed 1% of the GMZ or SMZ in that Bushfire Management Zone measured as a rolling average from 1 July 2012.

2 The Management Standards are made under, and are incorporated into, the Code of Practice for Timber Production 2014, which I will call the Timber Code and which states that they:

are incorporated into this Code to provide detailed mandatory operational instructions, including region specific instructions for timber harvesting operations in Victoria's state forests.

3 A second Code relevant to the determination of this dispute is the Code of Practice for Bushfire Management on Public Land 2012 (the 'Bushfire Code'). The two Codes strike a balance between timber harvesting and bushfire management using fuel reduction burns.

4 The two Codes provide for zones: Forest Management Zones in the Timber Code and Fire Management Zones in the Bushfire Code.

5 Paragraph 2.1 of the Timber Code explains the role of the Forest Management Zoning Scheme as follows:[2]

The Forest Management Zoning Scheme (FMZS) is a long-term planning tool that spatially represents all of the known values that are managed in Victoria's State forests. The FMZS seeks to achieve a balance between a range of value inputs including the timber harvesting rules stated within the Planning standards appendix to the [Management Standards].

The FMZS identifies three management zones within State forest: the Special Protection Zone (SPZ); the Special Management Zone (SMZ); and the General Management Zone (GMZ).

SPZs are managed for particular conservation values, forming a network designed to complement the formal conservation reserve system. Timber harvesting operations are excluded from SPZs. SMZs are managed to conserve specific features, while catering for timber harvesting operations under special conditions specified in SMZ plans and the Planning Standards. GMZs are managed for a range of uses and values, but timber harvesting operations will have a high priority.

6 One of the Fire Management Zones is the Bushfire Moderation Zone (or 'BMZ'), the aim of which is to reduce the speed and intensity of bushfires. It complements another Fire Management Zone, the Asset Protection Zone (or 'APZ'), in that the use of planned burning in the Bushfire Moderation Zone is designed to protect nearby assets, particularly from ember spotting during a bushfire.[3]

7 Kinglake's case is that VicForests' timber harvesting in ten areas zoned as Bushfire Moderation Zone in the Central Highlands exceeded that permitted by the Managements Standards. It contends that in five year periods, VicForests harvested areas of forest exceeding 1% of the area zoned as Special Management Zone located in the areas and therefore, on its interpretation, exceeded the permitted harvesting limits. It seeks injunctions and declarations to give effect to the finding it seeks.

8 VicForests disputed that Kinglake had correctly applied the harvesting formula contained in the Clause in calculating the harvesting it had undertaken and contended that Kinglake's interpretation of the Clause would reduce the limits on the timber harvesting it could undertake by 80%.

9 I granted Kinglake an interlocutory judgment restraining VicForests undertaking timber harvesting in particular coupes.[4]

10 Kinglake is an environmental advocacy group which provides a forum for people who wish to learn about, discuss and advocate for the preservation of the native forests in Kinglake and the Central Highlands.

11 VicForests is a State business corporation established under the State Owned Enterprises Act 1992. Its functions include to sustainably harvest and sell timber in Victorian State forests on behalf of the Victorian Government. Its principal objectives include 'operating its business or pursuing its undertaking as efficiently as possible consistent with prudent commercial practice; and maximising its contribution to the economy and wellbeing of the State'.[5] Other statutes, particularly the Sustainable Forests (Timber) Act 2004 ('the Sustainable Forests Act'), give VicForests a significant role in timber harvesting in Victoria.

12 The Department of Environment, Land, Water and Planning which administers the Codes was not a party to the proceeding.

13 VicForests challenged Kinglake's standing to bring this proceeding and contended that it did not have the legal right to sue VicForests for breach of the Management Standards. On 9 July 2021 in VicForests v Kinglake Friends of the Forest Inc,[6] the Court of Appeal affirmed Richards J's decision given on 23 February 2021,[7] a short time after I reserved judgment in this proceeding, that Kinglake had standing to seek a declaration and a permanent injunction regarding VicForests' timber harvesting. The Court of Appeal stated:

In our view, Kinglake FF has demonstrated a sufficient interest in the subject matter of the litigation. In the context of the issues in dispute and the regulatory context, it occupies a different position to other members of the public. It does not merely rely on strongly held views and opinions.[8]

14 Following delivery of the Court of Appeal's judgment, my Associate wrote to the parties inviting them to make submissions about its application to this proceeding. The email stated that I would take the Court of Appeal's decision into account in deciding the issue of Kinglake's standing in this case.

15 In its reply, VicForests accepted that I was bound to apply the Court of Appeal's decision in deciding the issue of Kinglake's standing, although it formally submitted that the judgment was wrong. Neither party sought to make further submissions regarding standing. I am bound by the Court of Appeal's judgment and accordingly, I proceed on the basis that Kinglake has standing in this proceeding.

16 Ms Susan McKinnon is the President of the plaintiff association. She gave evidence both by affidavit and orally and was cross examined principally about her calculations of VicForests' harvesting. She described her calculation of the boundaries of each area of Bushfire Management Zone, which Kinglake claimed had been overharvested by VicForests.

17 In carrying out her calculations, Ms McKinnon used Google Earth Pro, an online mapping program which allows the user to produce maps with 'overlays' on top of the original Google Earth satellite photographs and road maps. Overlays are provided in the form of spatial data, which enables a program such as Google Earth Pro to draw an overlay. VicForests provides the spatial data for its Timber Release Plans for public download on its website. Those Plans contain the areas where VicForests might conduct timber harvesting and are divided into contiguous areas called 'coupes'. The data allows an overlay showing the boundaries for the coupes listed in a Timber Release Plan to be drawn on the photographs when the data is uploaded to the relevant mapping program.

18 Ms McKinnon downloaded the July 2020 Timber Release Plan spatial data from VicForests' website. She also obtained the spatial data enabling an overlay showing the boundaries of Bushfire Management Zones across Victoria, fire management layer from the Victorian Government website. The software caused spatial data polygons, referred to as 'shapes', to be displayed. She stated that each polygon contained a separate Bushfire Management Zone, a contention VicForests disputed. She overlaid these shapes on the previously uploaded July 2020 Timber Release Plan shapes. She loaded that Release Plan spatial data into Google Earth Pro, so that the coupe boundaries located within each of the overharvested Bushfire Management Zones were displayed.

19 She gave the following description of her calculation of the areas of General Management Zones ('GMZs') and Special Management Zones ('SMZs'), which are particular Forest Management Zones, in each Bushfire Management Zone which Kinglake contends were overharvested. The Department provided an internet based facility titled Mapshare Vic, which provides overlays that can be queried by public users. She used the 'Forest Management Zone' overlay which provides mapped spatial data (polygons and polygon areas) of SMZs and Special Protection Zones ('SPZs'). She used this information to calculate the area of the GMZs in the following manner. First she determined the area of State forest within each Bushfire Management Zone. She then determined the areas of the SMZs and SPZs located in each of the Bushfire Management Zones alleged to be overharvested and subtracted that area from the area of State forest within each Bushfire Management Zone. She explained how she calculated the areas harvested between 1 July 2012 and 30 June 2019 and the areas harvested between 1 July 2019 and the time that she made her affidavit.

20 Ms McKinnon also used the Google Earth Pro measuring tool to determine the logged area within particular coupes. She used Sentinel Hub, which provides regular satellite imaging, to download satellite images which she then overlaid onto Google Earth Pro and subsequently used its measuring tool.[9]

21 Much of Ms McKinnon's evidence was relevant to the amount of overharvesting that VicForests may have carried out on the assumption that Kinglake's interpretation of the Clause was adopted.

22 VicForests disputed that it had overharvested any area and filed an affidavit by Mr James Gunn, containing its own calculations of its harvesting in the relevant forest areas.[10] The dispute between the parties was based, at least in part, on the differing interpretations they gave to the Clause, in particular whether the word 'or' should be read as a disjunctive or conjunctive.

23 VicForests provided affidavit evidence from Mr James Gunn, VicForests' Manager of Systems and Practice and Mr Craig Rutherford, Senior Planning Forester employed by VicForests, to which I refer later in this judgment. They were not cross-examined.

24 Three issues concerning the meaning of the Clause require determination in this part of the proceeding. I do not determine in this judgment any dispute about the amount of timber harvesting undertaken by VicForests that has occurred in the ten areas on which Kinglake's case is based. The relevance of such evidence is likely to depend on my interpretation of the Clause.

25 The first issue to be determined concerns the mechanics of the harvesting formula contained in cl 5.8.1.5(a) of the Management Standards. It raises three questions: what are the meanings of 'in any five year period', 'measured as a rolling average from 1 July 2012', and '1%'. The second issue is what does the word 'or' in the phrase 'GMZ or SMZ' mean. The third issue is the meaning of the words 'Bushfire Management Zones' or 'Bushfire Management Zone'. On this last issue, both parties agreed that those terms were included in error as they are not defined in, or otherwise mentioned in, the Bushfire Code.

26 To decide the issues in dispute, it is first necessary to describe the timber harvesting regulatory scheme. Timber harvesting in Victoria's State forests is governed by the Sustainable Forests (Timber) Act 2004 (the 'Sustainable Forests Act') and the Conservation, Forests and Lands Act 1987 ('CFL Act'), by Codes made under the latter Act[11] and by policy documents, such as the Management Standards, made by the Minister or the Department and incorporated into the Codes. The objects of the Sustainable Forests Act include to provide a framework for sustainable forest management and timber harvesting in State forests; to provide for the granting of long-term access to timber resources in State forests; and to establish, and to provide for, the enforcement of timber harvesting safety zones, which include coupes, so as to reduce the risks to public safety and disruption of timber harvesting operations.[12]

27 Under the CFL Act, the Minister may make Codes of Practice specifying standards and procedures for the carrying out of any of the objects or purposes of a relevant law.[13] The provisions of the Sustainable Forests Act also enable Codes of Practice.[14]

28 Timber in State forests is the property of the Crown until the Minister makes an 'Allocation Order'. Thereafter, property in the timber vests in the person allocated the timber, in this case VicForests, who may harvest the timber, subject to any conditions imposed by the Allocation Order.[15] In carrying out timber harvesting, VicForests must comply with all relevant Codes of Practice, including the Bushfire Code and the Timber Code.[16]

29 Once the Minister makes an Allocation Order, VicForests is required to prepare a Timber Release Plan ('TRP') containing the areas where VicForests may conduct timber harvesting, which areas are divided into contiguous areas called 'coupes'.

30 I will next describe relevant provisions of the two Codes.

31 The Bushfire Code contains the framework for the management of fire and fire related activities on public land, including regeneration burns required as a result of harvesting.

32 The primary strategy of the State Government for reducing the risk of uncontrolled fires has been by fuel reduction burning, which is the controlled application of fire to reduce available fuel. The current responsible Department, the Department of Environment, Land, Water and Planning ('DELWP'), is required to identify geographical zones in which fuel is managed for fire management purposes. Logging or harvesting of native forests has consequences for fuel reduction burning because logging is followed by forest regeneration, creating young timber of up to twenty years old, which must be protected during fuel reduction burning.[17]

33 The Bushfire Code was preceded by the 1995 Code and the 2006 Code, which contained zones designed to manage assets, fuel and the ecology. These were Fuel Management Zones, comprising five sub-zones, and Fire Management Zones, comprising four sub-zones. According to VicForests, Fire Management Zones '[did] not denote a single, fixed geographic area', but comprised 'a set of controls or prescriptions affecting geographically distant areas of land subject to that [Fire Management Zone]'.[18] Prior to the 2012 Bushfire Code, prescriptions for timber harvesting in Fire Management Zones were contained in local Fire Protection Plans. But they were often inconsistent, including at times with the Fire Protection Plan objectives and a consistent set of prescriptions was needed.[19]

34 The Final Report of the Bushfires Royal Commission of 2009 recommended that the Department of Sustainability and Environment ('DSE') amend the Bushfire Code: to provide a clear statement of objectives, expressed as measurable outcomes; to include an explicit risk-analysis model for objective and transparent resolution of competing objectives, where human life is the highest priority; and to specify the characteristics of fire management zones, including burn size, percentage area burnt within the prescribed burn and residual fuel loading.

35 Following the Royal Commission Report, the Department reviewed the Fire Code. As a result, in 2011, the local Fire Protection Plans were replaced by a single document, the Statewide Prescriptions for Commercial Timber Harvesting in Fire Management Zones, which I will call the Prescriptions. VicForests was consulted in that process.

36 On 11 August 2011, the Executive Director Forests and Parks, DSE, wrote to the Director Planning, VicForests enclosing the 2011 Prescriptions, stating:

Further to our earlier correspondence regarding this issue, please find enclosed the 2011 statewide prescriptions for commercial timber harvesting in Fire Management Zones.

These prescriptions will be incorporated into the next revision of the Management procedures for timber harvesting, roading and regeneration in Victoria's State forests.

The maps referred to in the prescription will be developed in consultation with VicForests over the coming 12 months, using new Fire Management Zones as they are finalised.[20]

37 The Prescriptions were updated in 2012. They applied to timber harvesting operations undertaken by VicForests on land subject to Fire Management Zones.[21] They set out the objectives of the Asset Protection Zone, the Bushfire Moderation Zone and the Landscape Moderation Zone, which are Fire Management Zones.

39 On 24 July 2012, the Department wrote to VicForests containing the final 2012 Prescriptions stating:[22]

I am pleased to enclose a DVD containing maps and associated shapefiles of the new Fire Management Zones. Also on this DVD are shapefiles of management units for the purposes of applying the prescriptions for commercial timber harvesting in the Asset Protection Zone and the Bushfire Moderation Zone (formerly Strategic Wildfire Moderation Zone) as detailed in the 2011 Statewide Prescriptions for Commercial Timber Harvesting in Fire Management Zones (as provided to VicForests in August 2011). As previously advised, the calculation of the maximum rolling 5-year average area that can be harvested within each management unit in accordance with these prescriptions commenced on 1 July 2012.

...

Please note that on 19 July 2012, the Minister for Environment and Climate Change, the Hon Ryan Smith MP, released the new version of the Code of Practice for Bushfire Management on Public Land. In the new Code, Fire Management Zones have been renamed as follows:

Fire Management Zones and management units may be reviewed and updated by the Department of Sustainability and Environment (DSE) when new or better information becomes available. VicForests will be consulted on any amendments likely to impact on the conduct of commercial timber harvesting operations.

I have enclosed an updated version of the 2011 Statewide Prescriptions for Commercial Timber Harvesting in Fire Management Zones that reflects the changes in the naming of Fire Management Zones. In making this update, no amendments have been made to the prescriptions.

40 The Prescriptions' purposes for forest areas subject to Asset Protection Zone and Bushfire Moderation Zone requirements, as stated under the heading 'Prescribed outcomes following commercial timber harvesting', were: '[t]he ability to conduct fuel reduction burning at the prescribed frequency is not compromised by the presence of young ( > Clearfall* or seed tree system* harvesting: a rolling 5-year average (calculations commencing 1 July 2012) of 1% of the GMZ*/SMZ* area of each management unit (see attached map) can be harvested by clearfall or seed tree system each year.

The overall fuel hazard rating for a clearfall or seed tree harvested coupe must be less than or equal to high within 12 months of harvesting.[23]

42 As previously mentioned, 'GMZ' refers to 'the General Management Zone, which is a Forest Management Zone, being an area of State forest designated to be managed for the broad range of forest values available in the area'.[24] 'SMZ' refers to 'the Special Management Zone, which also is a Forest Management Zone, which is an area of State forest designated to be managed to conserve specific features, while catering for timber production and other utilisation activities under certain conditions'.[25]

43 The Bushfire Code applies to bushfire management on public land in Victoria. It requires the Department to prepare bushfire management plans which use Fire Management Zones as a tool to implement bushfire management objectives.[26]

44 The Bushfire Moderation Zone is one of the four Fire Management Zones. The Bushfire Code describes those Zones as follows:

FMZs are areas of public land where fire is used for specific asset, fuel and overall forest and park management objectives. Each of the four FMZs differs in its intended fuel treatment aims and associated performance measures. Although the name of the zone indicates the primary purpose of that zone, it is recognized that multiple goals can be achieved when undertaking activities in a given zone. For example, a burn undertaken primarily for land management purposes may also have asset protection results. FMZs describe fuel treatment aims (with associated performance measures) in a particular area.[27]

...

FMZ placement is determined through analysis conducted in the development of strategic bushfire management plans, with input from stakeholders. Considerations include: risk to human life and property and community infrastructure, practical and achievable burning outcomes, appropriate fire regimes for vegetation types, maximum overall fuel hazard ratings, topographical alignments, and bushfire behaviour.

When determining the placement of FMZs, the Department will consider Forest Management Zones as outlined in the Code of Practice for Timber Production 2007.[28]

45 Fire Management Zones are areas of public land within which fire is used for a specific objective. The Bushfire Code describes Fire Management Zones as follows:

Asset Protection Zone (APZ)

Using intensive fuel treatment, the Asset Protection Zone (APZ) aims to provide the highest level of localised protection to human life and property and key community assets. The goal of fuel treatment is to reduce radiant heat and ember attack in the event of a bushfire. Fuel treatment will be carried out in the APZ through a combination of planned burning and other methods such as mowing, slashing or vegetation removal.

...

Bushfire Moderation Zone (BMZ)

This zone aims to reduce the speed and intensity of bushfires. This zone complements the APZ in that the use of planned burning in the BMZ is designed to protect nearby assets, particularly from ember spotting during a bushfire

Where practicable, the BMZ will aim to achieve ecological outcomes by seeking to manage for ecologically desirable fire regimes, provided bushfire protection objectives can still be met. This may include using other fuel management methods.

Landscape Management Zone (LMZ)

Within this zone, planned burning will be used for three broad aims:

• bushfire protection outcomes by reducing the overall fuel and bushfire hazard in the landscape;

• ecological resilience through appropriate fire regimes;

• management of the land for particular values including forest regeneration and protection of water catchments at a landscape level.

Other fuel reduction methods will be used within this zone as appropriate.

Planned Burning Exclusion Zone (PBEZ)

This zone excludes the use of planned burning primarily in areas intolerant to fire.[29]

46 Mr James Gunn, who is VicForests' Manager of Systems and Practices having commenced as a Harvesting Forester in 2010, stated that Fire Management Zones are a system for the classification of public land. They do not denote a single, fixed geographic area, but comprise a set of controls or prescriptions affecting geographically distant areas of land that are subject to that Zone. They do not contain specific prescriptions, but they guide the planning of strategic bushfire management plans, which then guide the content and strategic direction of fire operation plans. VicForests contended that they were analogous to zoning controls used in planning schemes made under the Planning and Environment Act 1987.

47 The Department determines what areas are subject to each Fire Management Zone, with input from relevant stakeholders, including VicForests. It reviews and updates the Fire Management Zone areas when new or better information becomes available.[30] Since 1 July 2012, many changes have been made to the designation of GMZ and SMZ areas under the Forest Management Zoning Scheme.

48 The Department conducts fuel reduction burns in Fire Management Zones to reduce the risk of damage and harm caused by bushfires. The different types of Fire Management Zones prioritise different outcomes. Planned burning is an important part of fire management. Burn units are particular local areas by reference to which the Department reviews and updates fire management zoning.

49 The first Code of Forest Practice for Timber Production was made by the Minister in 1989. It was replaced by the 1996 Code, which in turn was replaced by the Code of Practice for Timber Production 2007 and then the current 2014 Code.

50 In 2011, the Victorian Government published the Timber Industry Action Plan which set out its intention to create a sustainable forest management framework.[31] To achieve that outcome, the Government would '[s]treamline and align the various regulations that VicForests is required to comply with, in order to provide a simplified, linear framework to improve accountability for performance and minimise risk'.[32]

51 In 2011, the Department of Environment and Primary Industry ('DEPI'), conducted a review of the 2007 Code and the State forest timber harvesting regulatory framework. It published a paper titled 'Problem Statement and Scope of Review',[33] summarising the 'problem' with the State forest timber harvesting regulatory framework:

Problem statement

The existing timber harvesting regulatory framework has developed over a long period of time covering multiple strategies for the sustainable management of forest resources and in the case of State forests is spread across more than 80 regulatory documents

...

The existence of multiple regulatory documents has created overlaps and ambiguities that may contribute to poor regulatory outcomes.

The framework is generally viewed as being too complex and confusing and has been criticised in recent cases brought before the Victorian Supreme Court.

Solution Statement

The key changes proposed to the framework include:

1. reducing the number of regulatory documents to:

• a streamlined Code of Practice for timber harvesting operations 2014;

• an incorporated technical document called the Management Standards and Procedures for timber harvesting operations in Victoria's State forests 2014;

• a guidance document called the Management guidelines for the code of Practice on private land.

2. limiting prescriptions to environmental regulatory requirements that are within the Minister's portfolio responsibilities;

3. improving the clarity of the existing prescriptions and removing overlapping and redundant obligations;

4. improving the management of regulatory documents; and

5. improving the enforceability of the framework.

...

Validation Criteria

Validation criteria were used to analyse every mandatory timber harvesting operation prescription that exists across the 80 different State forest timber harvesting regulatory framework documents. Prescriptions were either included unchanged, amended and included or not included in the new framework following the validation process which assessed whether prescriptions were:

• commensurate to the level of environmental risk;
• aligned with the forest value to be protected;
• directed at the timber harvesting entity and mandatory to comply with;
• clear;
• informative;
• measurable;
• free of duplication;
• consistent with other prescriptions; and
• avoided unjustifiable local rules. [34]

53 The DEPI review culminated in the making of the 2014 Code, replacing the 2007 Code, the 2012 Prescriptions and other regulatory documents with the Management Standards.

54 As previously mentioned, the Timber Code sets out the Forest Management Zoning Scheme. The Scheme identifies three management zones within State forest: the SPZ; the SMZ; and the GMZ.[35] VicForests is only permitted to undertake timber harvesting operations within forest zoned SMZ or GMZ and not forest zoned SPZ.[36] The Forest Management Zoning Scheme is a 'long-term planning tool that spatially represents all of the known values that are managed in Victoria's State forests'.[37] It is a stated operational goal of the Timber Code that '[e]ffective and inclusive planning processes are used for timber harvesting operations to meet the requirements of this Code and the Management Standards and Procedures'.[38]

55 The Explanatory Memorandum for the Timber Code stated:

Background

1. The forestry regulatory framework project was developed in response to the governments Timber Industry Action Plan action 1.1 to streamline and align the various regulations that VicForests is required to comply with and provide a more linear framework that improves accountability for performance and minimises risk.

Creating a clearer forestry regulatory framework in the Code of Practice for Timber Production 2014 (2014 Code) and incorporated documents has:

• consolidated the regulatory framework for timber harvesting operations, to make it less complex;

• incorporated rules governing the industry that previously existed across 80 different documents; and

• made forestry regulations clear and transparent for industry and the community, while continuing to protect forest values.

A clearer environmental framework for timber harvesting will mean better enforcement of regulations, greater accountability and improved opportunity for compliance by industry.

Legislative Provisions

2. The Conservation Forests and Lands Act 1987 (CFL Act) Part 5 provides for the Minister for Environment and Climate Change to vary Codes of Practice: requiring at least 60 days for advertisement and public consultation regarding the proposed variation; consideration of any submissions received; and tabling of the final document in each House of the Parliament for 14 sitting days before making and publication in the Victorian Government Gazette.

These provisions have all been met and the 2014 Code is now subject to sections 16B and 16C of the Subordinate Legislation Act 1994.

...

The certificate of exemption proposes that the 2014 Code would not impose a significant economic or social burden on a sector of the public for the purposes of section 12F(1)(a) of the SL Act. The reason being that the 2014 Code does not alter the regulatory burden imposed by the now revoked Code of Practice for Timber Production 2007, but essentially only restates the regulation applying to timber harvesting in a clearer format.

56 As the Timber Code was a prescribed legislative instrument, the Subordinate Legislation Act 1994 applied to it and the Minister had to prepare a regulatory impact statement unless he issued an exemption certifying in writing that he was of the opinion that, amongst other things:

(a) the proposed legislative instrument would not impose a significant economic or social burden on a sector of the public;

57 The Minister's issued such a Certificate of Exemption stating:

The reason for forming this opinion is that the proposed Code of Practice for Timber Production 2014 (2014 Code) does not alter the regulatory burden imposed by the Code of Practice for Timber Production 2007 (2007 Code) which will be revoked, but essentially only restates the regulation applying to timber production in a clearer format. The result is a document that makes it clear to industry and the regulator (the Department of Environment and Primary Industries) what constitute the rules governing timber harvesting and might constitute a breach of the Sustainable Forests (Timber) Act 2004. Making the system clear will create better voluntary compliance by industry.

This is in line with the Timber Industry Action Plan action 1.1 to 'Streamline and align the various regulations that VicForests is required to comply with, in order to provide a simplified, linear framework to improve accountability for performance and minimise risk'.

The Code which applied to timber production was reviewed in 2007 before the 2007 Code was made - this review reflected advances in scientific knowledge. The 2014 Code builds on the 2007 Code review by consolidating the environmental regulatory framework for entities conducting timber harvesting operations. Consolidation is achieved by removing duplication, using clearer language and importing amendments made to the Sustainable Forests (Timber) Act 2004.

58 The Timber Code regulates the harvesting of timber in Victoria's State forests. Under the Sustainable Forests Act, compliance with the Timber Code is mandatory for any person planning for, or conducting, a timber harvesting operation on State forest.[39]

59 The stated purpose of the Timber Code is to permit an economically viable timber industry which is compatible with 'the conservation of the wide range of environmental, social and cultural values associated with forests'.[40]

60 The Timber Code defines the following terms used in the Management Standards:

'managing authority' means the organisation responsible for the management of a timber harvesting operation. DEPI is the managing authority for timber harvesting operations conducted under licences granted under section 52 of the Forests Act 1958. VicForests are the managing authority for timber harvesting operations conducted under an Allocation Order.

'harvesting entity' means an organisation or person responsible for conducting a timber harvesting operation. In State forest the harvesting entity is either VicForests or the holder of a licence granted under section 52 of the Forests Act 1958.

'operator' means a person who conducts a timber harvesting operation. Typically a machine or chainsaw operator.

61 The Timber Code contains the following description of its purpose:

1.2.2 Purpose of the Code

The purpose of the Code is to provide direction to timber harvesting managers, harvesting entities and operators to deliver sound environmental performance when planning for and conducting commercial timber harvesting operations in a way that:

• permits an economically viable, internationally competitive, sustainable timber industry;
• is compatible with the conservation of the wide range of environmental, social and cultural values associated with forests;
• provides for the ecologically sustainable management of native forests proposed for cyclical timber harvesting operations; and
• enhances public confidence in the management of timber production in Victoria's forests and plantations.[41]

The Code was further reviewed and published in 2007 to incorporate advances in scientific knowledge, the substantial changes in legislation and regulation governing forest management in Victoria and improvements in timber harvesting operational practices since 1993. This version of the Code builds on the 2007 review by streamlining the environmental regulatory framework for harvesting managers, harvesting entities and operators conducting and planning timber harvesting operations.[42]

63 The Timber Code refers to the Management Standards in the following passage:[43]

Incorporated documents

The Management Standards and Procedures for timber harvesting operations in Victoria's State forests (Management Standards and Procedures) are incorporated into this Code to provide detailed mandatory operational instructions, including regions specific instructions for timber harvesting operations in Victoria's State forests.

The Management Standards and Procedures are consistent with the Operational Goals and Mandatory Actions of this Code and must be complied with for timber harvesting operations in Victoria's State forests.

The Management Standards and Procedures are informed by relevant policy documents including policies relating to specific forest values such as threatened species, guidelines and strategies within forest management plans made under the Forest Act 1958 and Action Statements made under the Flora and Fauna Guarantee Act 1988. The Management Standards and Procedures replace any directions relating to timber harvesting operations contained within these documents.

Figure 4 below depicts the role of the Code and the Management Standards and Procedures in the State forest timber harvesting regulatory framework.

64 Clause 2.5 of the Timber Code states as the operational goal for timber harvesting:

Timber harvesting operations are conducted in a manner appropriate to the site, and manages impacts on soil, water and other values including biodiversity and cultural heritage.[44]

65 Clause 2.6 requires that all State forest areas that are subject to timber harvesting operations be regenerated to standards that approximate the original forest composition. In particular, VicForests is required under cl 2.6.1.7 to regenerate harvested coupes as soon as practical, including follow up or remedial action in the event of regeneration failure.[45] VicForests' regeneration activities need to be managed alongside the Department's planned fuel reduction burning activities.

66 The Timber Code also contains provisions dealing with coupe management and infrastructure and timber harvesting operations within areas that are not available for harvesting. Under the heading 'Operational Restrictions', it states as a mandatory action in cl 2.5.3.1:

Planning and management of timber harvesting operations must comply with relevant operational restrictions specified in the Management Standards and Procedures.

67 In October 2014, the same year as the latest Timber Code was published, the Prescriptions were replaced by the Management Standards and Procedures for timber harvesting operations in Victoria's State forests, which were issued by DEPI.

68 The Management Standards were designed to streamline the environmental regulatory framework for timber harvesting operations by consolidating over 80 regulatory documents. They state that they replace forest management plans or amendments to them, the Native Forest Silviculture Guidelines; coupe finalisation procedures and Flora and Fauna Guarantee Act 1988 Action Statements.[46]

69 The Management Standards are contained in a 66 page document, plus lengthy appendices and deal with many more matters than the Prescriptions did. These matters include planning and record keeping (cl 2), water quality, river health and soil protection (cl 3), biodiversity (cl 4). Clause 5, regulates 'other values', historic places, huts, landscape, giant trees, apiary, recreation and research. Clause 5.8 deals with fuel hazard ratings in Fire Management Zones and includes the timber harvesting restrictions. Clause 6 deals with roading, which includes road construction, maintenance and rehabilitation. Clause 7 is headed 'Timber Harvesting' and deals with coupe management, coupe infrastructure and operational restrictions. Clause 7.1.2 is headed 'Exclusion Areas' and provides:

7.1.2.1 Timber harvesting operations must be excluded from:

(a) SPZs;

(b) areas of SMZs where timber harvesting operations are excluded;

(c) buffers and other exclusion areas created in accordance with these Management Standards and Procedures; and

(d) within 10 m of vertical or near vertical sided gullies with a depth of half a metre or more that are actively eroding (or within 20 m where slope exceeds 20 degrees) in the Bendigo FMA.

7.1.2.2 Where an exclusion area is based on an incorrectly mapped geographic feature or value, the exclusion area should be centred on the actual location of the feature or value in the field not the previously mapped location.

7.1.2.3 Exclusion areas must be protected from damage during rough heaping or windrowing operations.

Clause 8 deals with Fire Salvage Harvesting and cl 9 with Forest Regeneration and Management.

70 The scope, role and application of the Management Standards are:

1.1.1.1 The Management Standards and Procedures apply to all commercial timber harvesting operations conducted in Victoria's State forests where the Code applies.

1.2.1.1 This document provides standards and procedures to instruct managing authorities, harvesting entities and operators in interpreting the requirements of the Code.

1.2.1.2 These Management Standards and Procedures do not take the place of the mandatory actions in the Code.

1.2.1.3 Where there is a conflict between the Code and these Management Standards Procedures, the Code shall prevail.

1.3.1.1 Notwithstanding clause 1.2.1.3, operations that comply with these Management Standards and Procedures are deemed to comply with the Code.

1.3.1.2 Requests for exemptions or temporary variations to these Management Standards and Procedures will demonstrate to the satisfaction of the Minister or delegate that they are consistent with the Operational Goals and Mandatory Actions of the Code.

...

1.5 Review of Management Standards and Procedures

1.5.1.2 The Minister for Environment and Climate Change may conduct a review of these Management Standards and Procedures at any time and make changes as required to improve the environmental performance of timber harvesting operations in State forest.[47]

71 Clause 5 is headed 'Other values' and cl 5.8 'Fuel Hazard ratings in Fire Management Zones'. It is noteworthy that timber harvesting limitations are included in this provision. Clause 5.8 aims to maintain 'the overall fuel hazard rating', which concerns the difficulty of suppressing a bushfire at particular levels on the forest fire danger index. On that same issue, the Prescriptions had provided that in the case of the Bushfire Moderation Zone:

The overall fuel hazard rating for a clearfall or seed tree harvested coupe must be less than or equal to high within 12 months of harvesting.

5.8.1.1 The scheduling of timber harvesting operations and planned burning should occur to ensure that areas are clearfall or seed tree harvested less than 12 months prior to planned burning.

5.8.1.2 Failure to comply with clauses 5.8.1.3 through to 5.8.1.6 may result in DEPI undertaking planned burning in the coupe. Where this occurs, the harvesting entity is responsible for ensuring regeneration standards are met post planned burning.

5.8.1.3 The time frame for ensuring that the overall fuel hazard ratings are met commence from coupe completion (i.e. not temporary closure). A maximum of 2 years from coupe commencement is allowed if temporary clearances are applied to a coupe.

...

5.8.1.4 In Asset Protection Zones defined in the Code of Practice for Bushfire Management on Public Land 2012:

...

(b) Clearfall and seed tree harvesting is not permitted in more than 1 ha of the gross coupe area.

(c) In any five year period the area harvested using thinning or selective harvesting must not exceed 5% of the GMZ or SMZ in that Asset Protection Zone measured as a rolling average from 1 July 2012.

...

5.8.1.5 In Bushfire Management Zones defined in the Code of Practice for Bushfire Management on Public Land 2012:

(a) In any five year period the area harvested using clearfall or seed tree harvesting must not exceed 1% of the GMZ or SMZ in that Bushfire Management Zone measured as a rolling average from 1 July 2012.

73 The parties broadly agreed on the purpose of cl 5.8.1.5(a). Kinglake submitted that the intention of the Clause, as well as of cls 5.8.1.4(b) and 5.8.1.4(c), was to strike a balance between the objective of protecting the community and environment from bushfires by means of an effective fuel reduction burning regime, and the economic impact of restricting logging in the Asset Protection and Bushfire Moderation Zones.

74 The objectives of the Bushfire Code and Timber Code interconnect in cl 5.8.The Clause seeks to limit the amount of timber harvested within Fire Management Zones so as to ensure that planned burns can be safely and properly carried out. The achievement of this purpose will be adversely affected by over harvesting because that will require the regeneration of significant numbers of young eucalyptus, which need protection when planned burning is conducted.

75 The Clause assists the Department meet its fuel reduction burning targets without killing or severely impacting young regrowth forest. The Clause seeks the same outcome as the Prescriptions did, which was to ensure that 'the ability to conduct fuel reduction burning at the prescribed frequency [was] not compromised by the presence of young ( > [o]rdinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[51]

85 The text of the statute being interpreted is the paramount guide for its interpretation and 'historical considerations and extrinsic materials' must not be relied on to impose an interpretation that is at odds with the clear meaning of the text.[52] But the text of the statute cannot be considered in a contextual void, it must be considered taking into account the purpose and context of the statute.

86 Recently, the High Court in R v A2**[53]** again described the principles to be applied in construing statutes Kiefel CJ and Keane J stated:[54]

The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.

Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. "Mischief" is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.

This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which he Court of Criminal Appeal placed some weight.

...

These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision.

None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular case, "if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance". When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.

87 Where the ordinary meaning of the text does not reveal its meaning, it is appropriate for the broader legal and historical context of the provision to be considered. As Allsop P said in Wilson v State Rail Authority of New South Wales:

However, as is now beyond dispute, in construing an Act, a court is permitted to have regard to the words used by Parliament in their legal and historical context. Context is to be considered in the first instance, not merely when some ambiguity is discerned. Context is to be understood in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed. These are legitimate means of understanding the purpose of the Act and of the relevant provisions, against which the terms and structure of the provisions and the Act, and a whole, are to be understood. Fundamental to the task, of course, is the giving of close attention to the text and structure of the Act, as the words used by Parliament to effect its legislative purpose. Nevertheless, general words, informed by an understanding of the context, and of the mischief to which the Act is directed, may be constrained in their effect.[55]

88 Another relevant interpretative principle is that when a literal interpretation will produce an inconvenient result, an alternative construction that is reasonably open may be preferred. In this regard the High Court stated in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation: [56]

Generally speaking, mere inconvenience of result in itself is not a ground for departing from the natural and ordinary sense of the language read in its context. But there are cases in which inconvenience of result or improbability of result assists the court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning because the alternative interpretation more closely conforms to the legislative intent discernible from other provisions in the statute.

...

Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended.

89 While the Management Standards are not legislation, the principles of statutory interpretation are applicable to their construction,[57] remembering that subordinate statutory legislation and instruments are often drafted less carefully and are less keenly scrutinised,[58] and may be prepared for a different audience than legislation is. The process of drafting subordinate legislation is not necessarily as stringent as the process of drafting legislation and errors may creep into the subordinate legislation. But, that does not permit the rewriting of the words that are used.[59]

90 In ADCO Constructions Pty Ltd v Goudappel,[60] the High Court stated:

The appropriate enquiry in the construction of delegated legislation is directed to the text, context and purpose of the regulation, the discernment of relevant constructional choices, if they exist, and the determination of the construction that, according to established rules of interpretation, best serves the statutory purpose.

91 However, subordinate legislation and instruments should be construed in light of practical considerations so that if the language of the instrument is capable of more than one interpretation, the interpretation which leads to a reasonably practicable result should be preferred. In discerning the meaning of subordinate instruments, including policy documents made under the authority of Acts of Parliament, regard can be had to their primary purpose and to whom they are addressed. Lord Reid in Gill v Donald Humberstone & Co Ltd[61] described the approach to such instruments, when considering workplace safety regulations. He stated:

I find it necessary to make some general observations about the interpretation of regulations of this kind. They are addressed to practical people skilled in the particular trade or industry, and their primary purpose is to prevent accidents by prescribing appropriate precautions. Any failure to take prescribed precautions is a criminal offence...They have often evolved by stages as in the present case, and as a result they often exhibit minor inconsistencies, overlapping and gaps. So they ought to be construed in light of practical considerations, rather than by a meticulous comparison of the language of their various provisions, such as might be appropriate in construing sections of an Act of Parliament...Of course, difficulties cannot always be foreseen, and it may happen that in a particular case the requirements of a regulation are unreasonable or impracticable; but, if the language is capable of more than one interpretation, we ought to discard the more natural meaning if it leads to an unreasonable result, and adopt that interpretation which leads to a reasonably practicable result_._[62]

92 Garde J at first instance, and the Court of Appeal, applied this passage in Mount Atkinson Holdings Pty Ltd v Landfill Operations Pty Ltd[63] in the interpretation of a policy made under the Environment Protection Act 1970.

93 Another important principle applicable to the determination of the disputed construction issues in this case is that the Clause must be read as a whole, and as part of cl 5 and the Management Standards.[64] Although the three issues to be determined turn on particular parts of the Clause, those parts must be read in the context of the whole document, particularly all of cl 5.

Issue One - The meaning of the terms or phrases 'in any five year period' and 'must not exceed 1% of the GMZ or SMZ measured as a rolling average from 1 July 2012'

94 The parties differed as to the meaning of the terms or phrases:

(b) must not exceed 1% of the GMZ or SMZ measured as a rolling average from 1 July 2012.

95 Kinglake submitted that the Clause prevents VicForests from harvesting more than 1% of the average size of the GMZ or SMZ, whichever is smaller, in a Bushfire Moderation Zone in a five year period, with that average calculated by reference to the average size of the GMZ or SMZ from 1 July 2012. The different historical areas of each of the GMZ and SMZ within the areas occupied by the Bushfire Moderation Zone in which the coupe to be harvested is located must be ascertained, multiplied by the number of days that the area was applicable and then totalled.[65] The resulting total is then divided by the number of days elapsed since 1 July 2012, to arrive at a weighted average of the GMZ and SMZ.[66] That average is a 'rolling average', because it is to be recalculated every time timber is harvested. Kinglake argued that this interpretation gave effect to the ordinary meaning of the provision.

96 This interpretation would, for example, allow VicForests to harvest 0.2% of the area of the GMZ or SMZ in a Bushfire Moderation Zone each year for a five year period or 1% of the GMZ or SMZ in the first year of a five year period, but, no more for the following four years.

97 Kinglake accepted that some polygons in a Bushfire Moderation Zone within which a coupe is located may have come into existence after 1 July 2012.[67] Although the Clause does not deal with that scenario, it submitted that common sense dictated that in such cases, the rolling average be calculated from the date the polygon came into existence.[68] Between 1 July 2009 and October 2014, when the Management Standards commenced,[69] the areas of the GMZ and SMZ in the affected Bushfire Management Zones changed eight times.[70] The drafter of the Management Standards would have assumed that the areas of the GMZ or SMZ were dynamic and would continue to change, so that the area of GMZ or SMZ at any point of time would be a less reliable indicator of the area likely to be affected than a rolling historical average.[71] As the areas of the GMZ or SMZ in a Bushfire Moderation Zone change so would the average area fluctuate. Such a change might occur because of changing forest values, for example, the sighting of a Great Glider would cause the tree and surrounding area to be classified as a Special Protection Zone, and if that nest ceased to be sighted in the area the reverse could occur.

98 VicForests' submission that the words 'measured as a rolling average from 1 July 2012' in fact refer to the area harvested 'in any five year period' would revive the obscurity present in the Prescriptions. It would rewrite the Clause by substituting a fundamentally different text from the Prescriptions. On the other hand, Kinglake's interpretation retained the language of the Clause, save for amending the term 'Bushfire Management Zone' to 'Bushfire Moderation Zone'.

99 Kinglake submitted that VicForests' reliance on 'practical considerations' as an interpretative tool did not favour either parties' construction. Both were equally workable and neither would result in an 'unreasonable' outcome, although there were crucial differences between them. Nor could the Minister's statement in the s 12F Certificate about the significance of the changes introduced in the Clause be substituted for the plain meaning of the clause. As the High Court stated in Re Bolton; Ex Parte Beane:

The words of a Minister must not be substituted for the text of the law. ... It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law.[72]

100 VicForests submitted that the rolling average referred to in the Clause was an annual average based on four years of forest area harvested and the area planned to be harvested in the next year over a consecutive five year period. It required a calculation based on the arithmetic average of five numbers, being the areas harvested in the previous four years and the area planned to be harvested in the forthcoming year in the GMZ and SMZ areas. The timber harvested could not exceed an average of 1% per year over those five years in the GMZ and SMZ areas.

101 This interpretation would permit VicForests to harvest 5% of the GMZ and SMZ in a year if no harvesting had occurred in the previous four years or harvest 1% of the GMZ and SMZ each year for a continuous five year period. In both instances, the amount of harvesting would result in a rolling average of 1% of the GMZ and SMZ.

102 To ensure that VicForests complied with harvesting limits in any five year period, it had to include its planned harvest area for the forthcoming year, thereby permitting a rolling average to be calculated for a five year period, being the previous four years plus the fifth year, the forthcoming year.[73] This is the case even though planning of timber harvesting in coupes appears to be developed to cover an eighteen month period.[74]

103 A rolling average allows for the real life variability that may occur in a timber harvesting operation and is used in other parts of the Management Standards containing restrictions on harvesting, e.g. cl 3.5.1.6.

104 Kinglake's interpretation, which reduced the amount of timber that could be harvested from 5% over five years to 1% over five years, i.e. by 80%, radically changed the existing timber harvesting practice. It was inconsistent with the Minister's statement in the s 12F Certificate that the Code 'essentially only restates the regulation applying to timber production in a clearer format'. The regulation was contained in the Prescriptions which stated 'a rolling 5-year average ... of 1% ... can be harvested ... each year'.

105 In addition, Kinglake's interpretation was divorced from VicForests' practical working environment and did not give the words '1% measured as a rolling average from 1 July 2012' meaningful work to do. Kinglake's interpretation would interfere with harvesting operations in many instances. Take a Bushfire Moderation Zone that since 1 July 2012 had been designated as a conservation area, with no timber harvesting permitted, but which on 1 July 2021 was rezoned General Management Zone. On Kinglake's interpretation, the calculation of the rolling average in the second half of 2021 would take into account nine years when no harvesting had been permitted, and the few days after 1 July 2021, when harvesting had been permitted, with the result that very little harvesting would be permitted for several years.

'In any five year period' and from '1 July 2012'

106 The Clause requires, and enables, the calculation of a rolling average of timber harvested in the GMZ or SMZ in any five year period. The words 'in any five year period' specify the period to which the rolling average relates.

107 The words 'from 1 July 2012' at the end of the Clause indicate that the calculation of the rolling average is for any five year period from 1 July 2012. The words 'from 1 July 2012' do not require that the rolling average be calculated from 1 July 2012 to today. Such an interpretation would continue to lengthen the period over which the rolling average was calculated and give insufficient weight to the opening words 'in any five year period'. The date 1 July 2012 was shortly before the Prescriptions were updated on 19 July 2012.

108 A rolling average or a moving average is a method for smoothing data by averaging, with or without weights, a fixed number of consecutive terms. The averaging 'moves' or 'rolls' over time, because each data point of the series is sequentially included in the averaging, whilst the oldest data point in the span of the average is removed.[75] However, the Clause was not carefully drawn, as it does not state the intervals at which the rolling average is to be calculated, or the span over which it is to be calculated. It could be every day, every week, every month or every year. In my opinion, in the absence of some statement or indication that a new method of calculating a rolling average was being introduced, the Clause, although reworded, should be read as intending that the existing method of calculating the rolling average would continue.

109 The words 'in any five year period' suggest a simple rolling average over a five year period with a moving start and end date. Although the term 'any five year period' is not directly attached to the words 'rolling average', the Clause must be read as whole to give effect to its intended operation.

110 A simple rolling average over five years smooths out variations to the GMZ and SMZ over time without being perpetually tethered to the historical date of 1 July 2012. It also permit VicForests' method of planning harvesting by enabling it to ensure that the rolling average over the five year period, including the forthcoming year, will not exceed timber harvesting of 1% per year. But the Clause also permits flexibility in planning harvesting. For example, as VicForests suggested, it could harvest all of the permitted 5% of timber in the first year of a five year period in order to build an access road in preparation for future harvesting operations in another area.

111 Kinglake submitted that the clause permitted a weighted average that multiplied the areas of the GMZ or SMZ by the number of days for each area since 1 July 2012. In my opinion, the Clause provides for the taking of an unweighted rolling average of the annual harvested area over any five year period from 1 July 2012. Because the intervals used are constant, as the data is taken once a year, and because the Clause does not suggest an intention to apply a weight to emphasise one interval over any other, no weighting based on time should be applied. This interpretation also reflects VicForests' operational practice and enables a post-hoc check to see whether, over any five year period, the average area harvested exceeds 1% per year.

112 The next part of the first issue is whether the '1%' figure in the Clause means a harvesting cap of an average of 1% each year as VicForests contended, a 1% cap over a five year period as Kinglake contended or something else.

113 Kinglake relied on the absence of the words 'each year' after the figure of 1%, emphasising the fact that those words were contained in the Prescriptions. The Court could not read in, or imply, words such as 'each year' or 'per annum' after the figure '1%' in the Clause.[76]

114 VicForests contended that the Clause meant 1% each year to enable the calculation of the rolling average in accordance with its existing practice.

115 In my opinion, the absence of the words 'each year' from the Clause in this respect does not mean that it should be read as Kinglake contends. Some interval of time, or data point, must be adopted, or read into the Clause, to enable the calculation of the rolling average.

116 Kinglake's interpretation of the words '1% ... measured as a rolling average from 1 July 2012' would not achieve the purpose of the Timber Code. Kinglake's interpretation, by allowing only 1% of harvesting over five years instead of 1% each year over five years, would reduce by 80% the area of timber that VicForests could harvest.

117 If the Clause bore a clear meaning, the Court would adopt it whatever the drafter's intention may have been. In those circumstances it would have been irrelevant what effect the clause had on timber harvesting, as that is a matter for the Minister and the Department. But that is not this case. The terms of the Clause contain errors and uncertainties. As I conclude later, the reference to Bushfire Management Zone is an error. The terms of the Clause leave unclear whether the 1% is the cap for the five year period or whether some other period is envisaged. The intervals for the calculation of the rolling average are also unclear. The Clause does not specify whether the rolling average is to be a five year average, a one year average or otherwise. Accordingly, The Clause cannot be interpreted by applying the ordinary meaning of its words because it contains errors and ambiguities.

118 Therefore extrinsic material and the context of the Clause can be considered even at the commencement of the interpretative process.

119 The parties differed as to the extent and nature of the changes to restrictions on timber harvesting made by cl 5.8 of the Management Standards. Kinglake submitted that cl 5.8.1.5 revealed the meaning of the Prescriptions by clarifying their intention. Mr Gunn stated VicForests' position to be that cl 5.8 of the Management Standards was intended to replicate the Prescriptions.[77] I consider that the determination of this disputed question of the extent and change to the restrictions on timber harvesting made by cl 5.8 is relevant, at least, to the context of the Clause.

120 Kinglake contended that cl 5.8 introduced changes to the format and content of the Prescriptions. Some were substantive and altered the regulatory regime controlling timber harvesting in Fire Management Zones, while others merely clarified, updated, or corrected the language of the Prescriptions without changing their regulatory impact. By way of example, Kinglake referred to cl 5.8.1.4(b), by which clearfall and seed tree harvesting is permitted in the Asset Protection Zone, restricted to 1 ha of gross coupe area, whereas timber harvesting was previously prohibited. Kinglake also pointed to cl 5.8.1.4(c) which changed limitations on harvesting in Asset Protection Zones from '5% of the GMZ/SMZ area of each management unit (see attached map)' in the Prescriptions to '5% of the GMZ or SMZ in that Asset Protection Zone measured as a rolling average from 1 July 2012'.

121 Kinglake submitted that the Clause reduced the area available for harvesting in Bushfire Moderation Zones by means of an alternative, workable formulation. The Clause could not be read down because VicForests considered it unreasonable. It merely reduced the areas available for harvesting in Bushfire Moderation Zones by means of an alternative, but no less workable, formulation.

122 The extrinsic material upon which VicForests relied failed to establish that cl 5.8 did not intend to significantly change the harvesting limitations contained in the Prescriptions. The Minister's statement in the s 12F Certificate that the Timber Code, under which the Management Standards were made, did not alter the regulatory burden imposed by the previous 2007 Timber Code was contradicted by the Department's 2014 document titled Timber harvesting regulatory framework review.[78] It described the review that resulted in the 2014 Timber Code and the Management Standards as including:

Validation criteria were used to analyse every mandatory timber harvesting operation prescription that exists across the 80 different State forest timber harvesting regulatory framework documents. Prescriptions were either included unchanged, amended and included or not included in the new framework...

123 Kinglake submitted that, in any event, the Minister's s 12F Certificate contained no more than the Minister's understanding of how the Timber Code would operate in practice and could not assist in interpreting the Clause.[79]

124 VicForests contended that the Management Standards were not intended to change the harvesting limits in Bushfire Moderation Zones.

125 The Managements Standards are a quite different document to the Prescriptions and deal with many additional matters. But in my opinion, neither the ordinary meaning of the words used in the Clause, nor the evidence about how it came to be made, suggest that it was intended to alter the timber harvesting limits for Bushfire Moderation Zones contained in the Prescriptions to any significant degree and certainly not by reducing them by 80%. Some alterations of other timber harvesting limits are contained in the Management Standards, for instance, for clearfall and seed tree harvesting in the Asset Protection Zone, but they appear to be minor. My reasons for concluding that no significant alteration was intended are as follows.

126 First, is the relevant extrinsic material.[80] The Explanatory Memorandum and the Minister's s 12F Certificate for the Timber Code do not suggest that the Management Standards were intended to make significant changes to the harvesting limits contained in the Prescriptions. Nor did the Department's Timber Harvesting regulatory framework review, Problem statement and scope of review, suggest that the Management Standards, which it described as 'an incorporated technical document', altered the timber harvesting limits in the Bushfire Moderation Zone contained in the Prescriptions. It stated that the 'Prescriptions were either included unchanged, amended and included or not included in the new framework', which does not suggest that the timber harvesting limits in areas of Bushfire Moderation Zone were being significantly changed. They suggest that the intention was to state timber production regulations in a clearer format, but not to significantly alter the harvesting limitations for Bushfire Moderation Zones contained in the Prescriptions, even though a different form of words was used.

127 Next is the context in which the Management Standards were made. The Department prepared and issued the Management Standards after consultation with VicForests. The Department's understanding of the meaning of the Clause is clear from its apparent knowledge of, and acceptance of, VicForests' interpretation of the Clause. The Management Standards are unlike many statutes which are addressed to a wide audience, they were prepared with VicForests particularly in mind and after consultation with it. VicForests is named in the Timber Code as a managing authority and harvesting entity. It is given a significant role in the operation of the Sustainable Forests Act. This includes Part 3 of that Act which deals with the allocation of timber to VicForests; Part 4 which deals with VicForests' role in respect of managed licences; Part 5 which deals with its management of timber resources; Part 6 which deals with the Minister's management of VicForests' and others' timber harvesting and Part 8 and s 79 which empowers the Secretary to direct VicForests or its staff to undertake fire suppression works The Management Standards and cl 5.8 were directed to timber harvesters, especially VicForests.

128 Then as previously mentioned, on 11 August 2011, the Executive Director, Forests and Parks of the Department wrote to the Director of Planning, VicForests enclosing the Prescriptions and stating that:[81]

These prescriptions will be incorporated into the next revision of the Management procedures for timber harvesting, roading and regeneration in Victoria's State forests.

The maps referred to in the prescriptions will be developed in consultation with VicForests over the coming 12 months, using new Fire Management Zones as they are finalised.

129 Then on 25 January 2016, after the Management Standards had been issued, the Department set out its understanding of the connection between the Prescriptions and cl 5.8 in a letter, which again I have previously mentioned, from the acting Regional Director, Gippsland to VicForests' Regional Director, Gippsland that:

VicForests commercial harvesting in fire management zones prescriptions zones were signed off in June 2011 and form part of the current Management Standards and Procedures for Timber harvesting Operations in Victoria's State's Forest 2014 (section 5.8).[82]

130 This letter suggests that the Department considered that the limitations contained in the Prescriptions were contained in cl 5.8. The Department's opinion is not decisive, but it is significant when the ordinary meaning of the words in the Clause is not clear.

131 The historical context in which the meaning of cl 5.8 is to be considered commences with the making of the Prescriptions, including consultation with VicForests. In my opinion, although the Prescriptions were not without some uncertainty of meaning, VicForests' operational practice complied with them. VicForests continued that operational practice with the apparent approval of the Department after the introduction of the Management Standards. Although the Minister and the Department are not parties to the proceeding and no officer of the Department gave evidence, Mr Gunn's and Mr Rutherford's evidence establishes that the Department was aware of VicForests' interpretation of the harvesting limitations and agreed with it. While the Department's understanding of the meaning of the Management Standards is certainly not determinative,[83] they are the Minister's and the Department's document, provided to VicForests and other for timber harvesters, to whom the Minister had allocated timber, for their guidance in how the Timber Code operated. The Management Standards were made in the context of VicForests planning its harvesting each year for the forthcoming year. This is an important 'practical consideration', to use Lord Reid's term,[84] in interpreting the Clause. Even though the Clause altered the wording of the Prescriptions, I consider that VicForests' interpretation of it more closely conforms to the Department's intention in drafting the Management Standards and leads to a 'reasonably practicable result'.[85]

132 I therefore consider that the context of the making of the Management Standards suggests that the Department did not intend to make significant changes to the harvesting limits which applied to VicForests, at least in respect of Bushfire Moderation Zones.

133 It is appropriate to read the clause as requiring a rolling average of 1% for each year and as therefore permitting the harvesting of a rolling average of 1% each year during any five year period.

134 The parties differ as to the interpretation of the word 'or' in the Clause.

135 Kinglake submitted that the word 'or' should be read as disjunctive, that is, the harvesting limitation is exceeded if more than 1% of the GMZ or 1% of the SMZ is harvested in the relevant period. The word 'or' usually has a disjunctive meaning. So read, the Clause requires that in any five year period, the area of a particular Bushfire Management Zone harvested using clearfall or seed tree harvesting must not exceed 1% of either the GMZ or the SMZ.

136 Kinglake submitted that because the term 'GMZ/SMZ' contained in the Prescriptions was replaced with the substantially similar term 'GMZ or SMZ', the drafting clearly indicated that the word 'or' had its ordinary disjunctive meaning. The drafter intended to replace the term 'GMZ/SMZ', which may have been uncertain, with the word 'or'.

137 Kinglake submitted that neither the text, context, or apparent purpose of the Clause justified the displacement, nor the contents of the Minister's Certificate displaced, the ordinary disjunctive meaning of the word 'or'. VicForests' preference for a conjunctive meaning was because it wanted to harvest a larger area than was permitted. The fact that Kinglake's construction decreased the area that VicForests had been harvesting did not mean that it produced an absurd, unreasonable, or impractical outcome. The area permitted to be harvested represented a balance of interests including economic exploitation of the forest and bushfire management. For the Court to construe the Clause so that the area that VicForests could harvest would not be reduced would be to engage in impermissible policymaking.

138 VicForests submitted that the word 'or' should be read as 'and' so that the annual area harvested must not 'exceed 1% of the GMZ and SMZ' within the Bushfire Moderation Zone.

139 VicForests submitted that the Management Standards should be interpreted in a way that was compatible with its operational practice and not as imposing new, more burdensome limits on timber harvesting that were not contained in the Prescriptions. This would be achieved by reading the word 'or' as meaning 'and'. The term 'or', when understood against its operational practice, should be read conjunctively as the limitation on harvesting was intended to apply to the entire area of the GMZ and SMZ available for harvesting.

140 The Management Standards are subordinate legislation and an interpretation which promotes the purpose or object underlying them is to be preferred.[86] VicForests submitted that cl 5.8 appeared not to be carefully drafted as the mistaken reference to 'Bushfire Management Zones' demonstrated.

141 VicForests contended that the interpretation of the word 'or' in a disjunctive sense would produce impractical results. It gave as an example a forest area zoned GMZ, a small area of which was zoned SMZ for just two weeks prior to the calculation of the rolling average, perhaps because a spotted-tail quoll or other protected species had been identified at that time. Kinglake's interpretation of the word 'or' as a disjunctive, would result in the area permitted to be harvested being calculated on a daily weighted average of the SMZ area for ten days, averaged since 1 July 2012. As a result almost no area could be harvested and any timber harvesting underway would have to cease. This outcome would significantly constrain timber harvesting, but in no way advance the purpose of the Clause.

142 VicForests also submitted that a plain reading of the Prescriptions, which were replaced by the Management Standards in 2014, permitted up to 1% of the GMZ/SMZ, combined, could be harvested each year. The expression 'GMZ/SMZ' could mean GMZ or SMZ; GMZ and SMZ; GMZ and/or SMZ.[87] VicForests submitted that the second of those three meanings was intended.

143 VicForests submitted that the Management Standards were intended to reduce and streamline the regulatory framework which had been criticised for being too complex and confusing, but not to alter the substance of the Prescriptions.

144 The interpretation of the word 'or' in the Clause requires reading the clause as a whole and keeping in mind the historical context in which the Management Standards were made.

145 The word 'or' is ordinarily given a disjunctive meaning.[88] But not always. For instance, 'or' has been construed as meaning 'and' where a clear drafting or printing error has occurred, where the legislative purpose would be frustrated by the application of the ordinary meaning of 'or',[89] and where the conjunctive meaning would produce an absurd result.[90]

146 On Kinglake's interpretation, once an area of forest zoned SMZ is placed within a Bushfire Moderation Zone, VicForests may only be able to harvest the SMZ and GMZ by reference to the area of the SMZ, because it will usually be the smaller. This is demonstrated by the areas of SMZ shown in the first schedule to VicForests' Amended Defence. But such an outcome has no apparent connection to the purposes of the Clause. It might significantly reduce an area available for harvesting while harvesting was occurring.

147 In my opinion, the term 'GMZ or SMZ' means 'GMZ and SMZ'. The limitation in the Clause is intended to apply to the entirety of the area of GMZ and SMZ available for harvesting. The word 'or' can be read in the sense of 'and', where it is plain that it was used in that sense.[91]

Issue Three - the term 'Bushfire Management Zones' and 'Bushfire Management Zone'

148 The Clause in its opening words contains the term 'Bushfire Management Zones' which it states is defined in the Bushfire Code. Then, in the text of subparagraph (a), the term 'Bushfire Management Zone' is used. In fact, neither 'Bushfire Management Zones' nor 'Bushfire Management Zone' is defined in the Bushfire Code. However, the term 'Bushfire Moderation Zone' is described in the Bushfire Code as:

This zone aims to reduce the speed and intensity of bushfires. This zone complements the APZ in that the use of planned burning in the BMZ is designed to protect nearby assets., particularly from ember spotting during a bushfire.

Where practicable, the BMZ will aim to achieve ecological outcomes by seeking to manage for ecologically desirable fire regimes, provided bushfire protection objectives can still be met. This may include using other fuel management methods.[92]

149 The parties agreed that the Clause intended to refer to 'Bushfire Moderation Zones' and 'Bushfire Moderation Zone' and not 'Bushfire Management Zones' and 'Bushfire Management Zone'. But they disagreed about whether the Clause intended to provide any other means of identifying the particular forest areas to which the term 'Bushfire Moderation Zone' referred. VicForests contended that the intention was to refer to 'Bushfire Moderation Zone management units', a term not defined in the Bushfire Code, but which was used in the Prescriptions as part of the description of the harvesting permitted in the Asset Protection Zone and Bushfire Moderation Zone. The Prescriptions stated in respect of the Bushfire Moderation Zone:

Clearfall or seed tree harvesting: a rolling 5-year average (calculations commencing 1 July 2012) of 1% of the GMZ/SMZ area of each management unit (see attached map) can be harvested by clearfall or seed tree system each year.

150 Mr Gunn and Mr Rutherford of VicForests gave evidence about management units. Mr Gunn, who is VicForests' Manager of Systems and Practices, stated that a 'management unit' for a Bushfire Moderation Zone is an area defined by the Department from time to time.[93] The Prescriptions required that Bushfire Moderation Zone harvesting limits be applied to management units which the Department defined from time to time.

151 Mr Gunn gave evidence that management units are areas determined by the Department and used by VicForests in managing and complying with its obligations with harvesting activities on land subject to a Fire Management Zone established by the Bushfire Code.[94] They are a grouping of existing polygons of land areas in Fire Management Zones which are divided geographically by reference to major roads and the Department's regional and district fire management boundaries.

152 The Department set up the current management units in 2011 and 2012 in consultation with VicForests. It created a spatial layer which contains individual polygons and updates the areas covered by the individual polygons from time to time.[95] Individual Bushfire Moderation Zone polygon sections make up the relevant Bushfire Moderation Zone management units.

153 VicForests was consulted at a senior management level, and regionally, in the development of the Prescriptions. Consultation on the boundaries and locations of Fire Management Zones was undertaken regionally with VicForests' Planning and Operations staff.

154 Changes and updates to the Fire Management Zones have resulted in minor changes to the Bushfire Management Zone that make up the Bushfire Moderation Zone management units. When changes occur, VicForests, for its own purposes, groups those individual polygons with the management unit they sit closest to geographically. When large changes have occurred, the Department has provided VicForests with updated spatial data and maps showing revised, or new, management unit groupings.[96]

155 Mr Rutherford, of VicForests, also gave evidence about management units. I have previously referred to his evidence about VicForests' method of planning timber harvesting to ensure that it complies with the requirements of the Clause. He described the important role that management units play as follows:[97]

When considering and applying the requirements of clause 5.8.1.5(a), VicForests' Operational Planning Foresters look at the Fire Management Zoning spatial dataset for State forest areas zoned BMZ. That is a dataset which is provided to VicForests by DELWP, to ascertain whether any coupes identified for harvest are within an area zoned BMZ. This is done by reference to the relevant BMZ Groups/Management Units that cover the coupes in question, not individual polygons on the map that fall within the areas zoned BMZ. In the BMZ a high percentage of the area can be burnt. Sometimes there are areas of privately owned land etc between polygons, but they are managed as a Group/Management Unit level, not individually.

156 As previously mentioned, on 24 July 2012, the Department wrote to VicForests enclosing the final 2012 Prescriptions and a DVD containing maps and associated shapefiles for the new Fire Management Zones. The DVD provided shapefiles of management units for the purposes of applying the Prescriptions for commercial timber harvesting in the Bushfire Moderation Zone. The letter stated: [98]

As previously advised, the calculation of the maximum rolling 5-year average area that can be harvested within each management unit in accordance with these prescriptions commenced on 1 July 2012.

...

Fire Management Zones and management units may be reviewed and updated by the Department of Sustainability and Environment (DSE) when new or better information becomes available.

157 An example of the Department's use of management units occurred in July 2015 when changes were finalised to the management units in Gippsland, and the shapefiles that made up the Fire Management Zones. Following this, VicForests was consulted on the Bushfire Moderation Zone management units.[99] On 25 January 2016, that is fifteen months after the Management Standards containing cl 5.8 were adopted, the Department (Acting Regional Director Gippsland) wrote to VicForests about these Gippsland changes. The letter to which I have previously referred stated in part:

VicForests' commercial harvesting in fire management zones prescriptions were signed off in June 2011 and form part of the current Management Standards and Procedures for Timber harvesting Operations in Victoria's State Forest 2014 (section 5.8).

Alpine & Greater Gippsland Landscape (previously East Gippsland Area) have had BMZ Groupings as part of the prescriptions since 2011.

The changes to the Fire Management Zone in Alpine & Greater Gippsland Landscape are now reflected in updated BMZ groupings. Attached is a copy of the map of the updated BMZ groupings. ArcGIS files are available from DELWP Strategic Fire Planning Team.

VicForests planning staff have been significantly involved in the finalisation of the Bushfire Moderation Zone Groups. Whilst not all of VicForests requests have been included VicForests planning staff have accepted the groupings in principle.

In the implementation of the prescriptions VicForests will continue to manage the area limits at the Operational Plan level rather that at the Timber Release Plan stage; and calculations of area limits/rolling averages will continue as per procedure.[100]

158 Kinglake contended that the following problems existed with VicForests' construction of the term 'Bushfire Management Zone' and the suggestion that it included a reference to management units: it did not apply the plain meaning of the text; the term Bushfire Moderation Zone is defined in the Timber Code but 'management units' are not; and it was inconsistent with the context of cl 5.8, as cls 5.8.1.4-5.8.1.6 do not to refer to management units. In all, VicForests' interpretation would require wholesale rewriting of the clause.

159 Kinglake relied on the structure of cl 5.8.1 to support its argument that the words 'Bushfire Management Zone' should be read as Bushfire Moderation Zone, but without including reference to management units. It argued that the structure of cls 5.8.1.4, 5.8.1.5 and 5.8.1.6 strongly indicated that the second zone listed in those provisions corresponded with the Fire Management Zones listed in the Bushfire Code, particularly the second being the Bushfire Moderation Zone. The Bushfire Code, when dealing with the function of Fire Management Zones in 'undertak[ing] strategic planning for fuel management including planned burning', describes the aims of the four Fire Management Zones and lists them in the following order: Asset Protection Zone, Bushfire Moderation Zone, Landscape Management Zone and Planned Burning Exclusion Zone.[101] In the Management Standards, cl 5.8 is titled 'Fuel Hazard ratings in Fire Management Zones' and cls 5.8.1.4 - 5.8.1.6 lists the first three of those zones in the same order as does the Bushfire Code: the Asset Protection Zone, the incorrectly named 'Bushfire Management Zone' and the Landscape Management Zone.[102] Therefore Kinglake argued the structure of cls 5.8.1.4, 5.8.1.5 and 5.8.1.6 strongly suggested that the second zone referred to in cl 5.8.1.5 is intended to be the Bushfire Moderation Zone listed in the Bushfire Code and not a new zone called the Bushfire Management Zone or Bushfire Moderation Zone management units.

160 Kinglake pointed to the Minister's statement in the s 12F Certificate, upon which VicForests relied, that the new Code 'essentially only restates the regulation applying to timber production in a clearer format'. Kinglake argued that VicForests' submission required the following changes to the Clause: the replacement of the term 'Bushfire Management Zone' with 'Bushfire Moderation Zone management units'; the insertion of a definition of that term, and deletion of the words 'defined in the Code of Practice for Bushfire Management on Public Land 2012'. Changes of that scale were unlikely to have been intended. In fact, cl 5.8 did away with the reference to management units and maps that were contained in the Prescriptions both in respect of the Asset Protection Zone and the misnamed Bushfire Management Zone. It was unlikely that the Clause intended a different interpretation to apply to the Asset Protection Zones, than to the Bushfire Moderation Zones referred to in cl 5.8.1.5. No reader of the Codes or the Management Standards would conclude that the term 'Bushfire Management Zones' was intended to refer to an aggregation of Bushfire Moderation Zones created by the Department and contained in management units.

161 Kinglake contended that the Clause refers to Bushfire Moderation Zone polygons within the Fire Management Zone spatial data, which were provided on a Government website. Each of Kinglake's zones is a particular polygon of that character.

162 VicForests submitted that the reference to Bushfire Management Zone was intended as a reference to a Bushfire Moderation Zone management unit. Management units are geographical areas set by the Department to manage compliance with timber harvesting obligations.

163 VicForests' case was that before, and after, the commencement of the Prescriptions, it used management units set by the Department to ensure compliance with its timber harvesting obligations.

164 VicForests contended that this interpretation was required because the Bushfire Moderation Zone is similar to a planning prescription and does not apply to particular areas of land, whereas management units are areas of forest identified by the Department which are designated as Bushfire Moderation Zone, or as other zones. Nor could the term 'Bushfire Moderation Zone' be applied in the plural as 'Bushfire Moderation Zones', because the term 'Bushfire Moderation Zone' is not a measurable geographic area, but refers to controls or prescriptions over areas of land, analogous to planning schemes. The formula for permitted harvesting contained in the Clause is to be applied to areas of forest land set by the Department as a management unit. Those areas of land do not have to be contiguous. VicForests contended that the areas that Kinglake describes as 'Bushfire Moderation Zone 1 to 10' are individual polygons, which have no function in the operation of the Clause. Kinglake's construction of the Clause was designed to minimise timber harvesting in an arbitrary manner divorced from the practical working operation in which it was to be applied.

165 I consider that the parties are correct that the terms 'Bushfire Management Zones' and 'Bushfire Management Zone' are intended to be 'Bushfire Moderation Zones' and 'Bushfire Moderation Zone'. While Forest Management Zones are contained in the Timber Code, they are not mentioned or defined in the Bushfire Code to which the Clause refers. Errors in legislation, subordinate instruments and policy documents can be corrected by courts where the error is apparent.[103] This is such a case. I accept Kinglake's submission that the structure of cls 5.8.1.4 to 5.8.1.6, when read with the comparable provisions in the Bushfire Code, indicates that the words 'Bushfire Management Zone' were intended to refer to the second category of Fire Management Zone which is 'Bushfire Moderation Zone'.

166 I read the Clause as referring to areas of forest land which are zoned Bushfire Moderation Zone. The opening reference to 'Bushfire Management Zones' refers to all areas so zoned. The reference in subparagraph (a) to 'that Bushfire Management Zone' refers to particular areas of land so zoned to which the harvesting formula is to be applied.

167 However, this conclusion does not enable the identification of the land to which the words 'that Bushfire Management Zone' are meant to refer. The error in naming the Zone as Bushfire Management Zone suggests that the wording of the Clause was not carefully considered and does not state all the matters that the drafters may have had in mind and which were known to the Department and VicForests. The Management Standards are intended to provide:

standards and procedures to instruct managing authorities, harvesting entities and operators in interpreting the requirements of the [Timber] Code.[104]

168 The phrase 'the area harvested' in the Clause refers to particular forest areas zoned Bushfire Moderation Zone. It does not refer to all forest land that is in a Bushfire Moderation Zone, but to particular areas that have been, or are planned to be, harvested or that are available for harvesting. The Department has included such land or area in management units displayed on maps given to VicForests.

169 The Management Standards were drafted by the Department in consultation with VicForests, and things known to and assumed by both of them, may not have been mentioned in the way they would otherwise have been. The Management Standards were issued against an operational practice in which timber harvesting was conducted in timber coupes contained in management units. It is not remarkable that the drafters did not refer to VicForests' previous and continuing operational practice of timber harvesting that had occurred, and continued to occur, although management units were referred to in the Prescriptions. Read without knowledge of the existing operational practice, the Clause does not enable the identification of 'that Bushfire [Moderation] Zone' to which the harvesting formula will apply. The evidence of Mr Gunn and Mr Rutherford supports the importance of the management units in VicForests' operational practice. Interpreting the words Bushfire Moderation Zone as carrying with it reference to management units is to acknowledge the practical consideration of the need to identify the areas of forest to which the harvesting formula will apply. I do not consider that the Clause intends to refer to the polygons of areas zoned Bushfire Moderation Zone that Ms McKinnon identified in her evidence. Those polygons had no direct connection with the timber harvesting that the Department permitted through the setting up of management units.

170 In my opinion, the term 'that Bushfire Moderation Zone' refers to an area of land that is zoned 'Bushfire Moderation Zone' which is part of a management unit. Those areas can only be identified from the maps which contain the management units established by the Department. Although not the subject of separate submissions, I do not see why the same conclusion does not apply to cl 5.8.1.4 and Asset Protection Zones.

171 A 'Bushfire Moderation Zone management unit' is a geographical area with a meaning understood by the Department and VicForests. Management units have been used by the Department and VicForests for timber harvesting operations since before the Prescriptions commenced in 2012. Mr Gunn's and Mr Rutherford's evidence establishes that management units continued to be used by the Department and VicForests after the issue of the Management Standards. Management units are marked on the relevant planning overlays as units of the 'Bushfire Moderation Zone(s)'. A distinction is to be drawn between land that is subject to a 'Bushfire Moderation Zone' in the sense of a zoning control analogous to planning schemes and 'Bushfire Moderation Zone management units' being particular coupes of land in a Bushfire Moderation Zone, which are discrete areas that the Department has identified as suitable for harvesting and bushfire management purposes. Particular areas zoned Bushfire Moderation Zone are aggregated into management units. In my opinion, the Clause is intended to apply to particular areas of land, which the Department has identified as management units.

172 I have concluded that cl 5.8.1.5(a) of the Management Standards means that:

(a) in Bushfire Moderation Zones as defined in the Code of Practice for Bushfire Management on Public Land 2012;

(d) the area harvested using clearfall or seed tree harvesting must not exceed an average of 1% each year of the GMZ and SMZ area of each Bushfire Moderation Zone management unit;

(e) with the average being measured each year as an unweighted rolling average.

173 VicForests has succeeded on the disputed issues of interpretation of cl 5.8.1.5(a) of the Management Standards. I will hear the parties as to the appropriate orders to give effect to this judgment.

[1] While the provision is technically a subparagraph, it will be referred to as a clause for ease of use throughout this judgment.

[2] Affidavit of James Gunn dated 8 December 2020, [46] ('Second Gunn Affidavit').

[3] Court Book, Kinglake Friends of the Forest Inc v VicForests (Supreme Court of Victoria, S ECI 2020 04058, Ginnane J, 26 October 2020) 1402 ('CB').

[4] Kinglake Friends of the Forest Inc v VicForests [2020] VSC 865.

[5] State Owned Enterprises Act 1992 s 18.

[6] [2021] VSCA 195.

[7] Kinglake Friends of the Forest Inc v VicForests (No 4) [2021] VSC 70.

[8] VicForests v Kinglake Friends of the Forest Inc [2021] VSCA 195, [95].

[9] CB 276. Ms McKinnon provided a table that detailed how she determined the harvested area of each relevant coupes: see CB 276-282.

[12] Sustainable Forests Act, s 1.

[14] Sustainable Forests Act, s 40.

[15] Sustainable Forests Act, s 14.

[16] Pursuant to Allocation Order 2013 as amended and s 40 of the Sustainable Forests Act.

[17] Affidavit of Susan Mary McKinnon sworn 5 November 2020 ('Second McKinnon Affidavit'); Exhibit SMM-87 to the Second McKinnon Affidavit; VicForests, Management of High Conservation Values Status Update (May 2020) 28, 81 (CB 1212, 1265). See also column 3, rows 2 and 3 of the 2011 and 2012 Statewide Prescriptions.

[19] Second Gunn Affidavit, [26]-[27].

[20] Second Gunn Affidavit, [30]; Exhibit JMG-10 to the Second Gunn Affidavit.

[21] Second Gunn Affidavit, [32], Exhibit JMG-11 (CB 3201-3202, 3401).

[23] CB 1423 at 1 'Statewide prescriptions for commercial timber harvesting in fire management zones 2012, updated 19 July 2012' ('2012 Prescriptions'). The asterisks marks where a term is defined elsewhere in the Prescriptions.

[27] Exhibit JMG-1 to the First Gunn Affidavit, 26 [122]; CB 1402.

[28] Exhibit JMG-1 to the First Gunn Affidavit, 26 [124]-[125]; CB 1402.

[29] Exhibit JMG-1 to the Affidavit of James Gunn affirmed 10 November 2020 ('First Gunn Affidavit'), 26 [126]-[132] (CB 1402).

[31] Second Gunn Affidavit, [6]; Exhibit JMG-2 to the Second Gunn Affidavit (CB 3197, 3307).

[32] Department of Primary Industries, 'Timber Industry Action Plan', (December 2011) Action 1.1 (CB 3313).

[33] Department of Environment and Primary Industries, 'Timber harvesting regulatory framework review: problem statement and scope of review' (2014) (CB 3329).

[34] Exhibit JMG-3 to the Second Gunn Affidavit.

[36] Exhibit JMG-1 to the Second Gunn Affidavit ('2007 Code') at 13 (CB 3231); Department of Environment and Primary Industries, 'Code of Practice for Timber Production' (2014) ('Timber Code') 31 (Book of Authorities 75).

[39] Sustainable Forests Act, s 46,

[41] Timber Code, 2 (emphasis in original).

[42] Timber Code, 21 (emphasis in original).

[43] Timber Code, 28-29 (emphasis in original).

[45] Second Gunn Affidavit, [56]-[57].

[47] Department of Environment and Primary Industries, 'Management Standards and Procedures for timber harvesting operations in Victoria's State forests 2014' (2014) ('Management Standards and Procedures') 21 (CB 1527-1528) (emphasis in original).

[50] Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78].

[51] Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78].

[52] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27, 46-47 [47].

[53] [2019] HCA 35; (2019) 269 CLR 507 (citations omitted).

[54] Ibid [32]-[37]; see also Bell and Gageler JJ at [124].

[55] [2010] NSWCA 198; (2010) 78 NSWLR 704, 707-708 [12].

[56] Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297, 320-321.

[57] See, e.g., Interpretation of Legislation Act 1984 s 35.

[58] Environment Protection Authority v Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) [2014] NSWCA 149; (2014) 86 NSWLR 499, 508-9.

[59] Kinglake relied on the judgment of Basten JA in Wingecarribee Shire Council v De Angelis [2016] NSWCA 189, [20] and 4nature Incorporated v Centennial Springvale Pty Ltd (2017) 95 NSWLR 361; [2017] NSWCA 191, [45].

[61] [1963] 1 WLR 929.

[62] Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 929, 933-934.

[63] [2020] VSC 345 (Garde J) and on appeal [2020] VSCA 332, [147].

[64] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69].

[65] Plaintiff's Reply to Defendant's Submissions dated 5 February 2021, [15]. See also Transcript of Proceeding (S ECI 2020 04058, Kinglake Friends of the Forest v VicForests, Ginnane J, Supreme Court of Victoria, 8, 10 and 11 February 2021) 202-203 ('T').

[67] Plaintiff's Reply to Defendant's Submissions dated 5 February 2021, [16].

[69] Management Standards, 3 (CB 1509).

[70] See Amended Defence, [26B](a), including the particulars subjoined thereto (CB 153), and Schedule 1 (CB 180). These are admitted in Amended Reply, [1A] (CB 199). See also Second Gunn Affidavit [46]-[51] (CB 3204 - CB 3205) and [53]-[54] (CB 3206).

[71] The areas have changed a further 15 times since November 2014: see Amended Defence, Schedule 1 (CB 180).

[72] [1987] HCA 12; (1987) 162 CLR 514, 518 [4].

[74] Affidavit of Craig Rutherford affirmed 28 January 2021 ('Rutherford Affidavit'), [9]-[18], [20] (CB 3450-3451).

[75] B.S. Everitt and A Skrondal, The Cambridge Dictionary of Statistics (Cambridge University Press, 4th ed., 2012), which defines 'moving average' as '[a] method used primarily for the smoothing of time series, in which each observation is replaced by a weighted average of the observation and its near neighbours...'. See also Organisation for Economic Co-operation and Development, Data and Metadata Reporting and Presentation Handbook (OECD, Paris, 2005), Section 4: Guidelines for the reporting of different forms of data and Y Dodge (ed), The Oxford Dictionary of Statistical Terms (Oxford University Press, 2003), which defines 'moving average' in mathematical terms as a summation formula. The reference to 'weighted average' in the Cambridge definition does not necessarily mean that a moving or rolling average must be unevenly weighted, as the weight applied to each value in the average can be the same, resulting in a simple moving average.

[76] Taylor v Owners -Strata Plan No 11564 (2014) 253 CLR 531.

[78] Exhibit JMG-3 of Second Gunn Affidavit.

[79] Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514.

[80] Interpretation of Legislation Act 1984 s 35(b).

[82] Exhibit JMG-12 of the Second Gunn Affidavit.

[83] Re Bolton; Ex Parte Beane [1987] HCA 12; (1987) 162 CLR 514.

[84] Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 929, 933-934.

[86] Interpretation of Legislation Act 1984 s 35 (a).

[87] Aquawest Pty Ltd v Twynham [2017] NSWSC 652, [24].

[88] Gill v Department of Industry, Technology and Resources [1987] VicRp 58; [1987] VR 681, 685-686.

[89] Pileggi v Australian Sports Drug Agency [2004] FCA 955; (2004) 138 FCR 107, 118 [37].

[90] See Dennis Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019) [2.46], [2.50]; see, e.g., Pileggi v Australian Sports Drug Agency [2004] FCA 955; (2004) 138 FCR 107. See Commissioner of Taxation v Industrial Equity Ltd [2000] FCA 420; (2000) 98 FCR 573, 577 [20] for a similar example.

[91] See, e.g., R F Brown & Co Ltd v T and J Harrison (1927) 43 TLR 633, 639 (Atkin LJ) cited in Minister for Immigration and Ethnic Affairs v Baker [1997] FCA 105; (1997) 73 FCR 187, 195 (Burchett, Branson and Tamberlin JJ).

[92] Bushfire Code, [128]-[129] (CB 1402).

[94] Second Gunn Affidavit, [38]-[40] (CB 3203); Rutherford Affidavit, [17]-[18], [20] (CB 3453-3454, 3455).

[95] Affidavit of James Gunn affirmed 28 January 2021 ('Third Gunn Affidavit'), [4].

[99] Second Gunn Affidavit, [44]-[45].

[100] Exhibit JMG-12 to the Second Gunn Affidavit.

[101] Code of Practice for Bushfire Management on Public Land 2012, Victorian Government Department of Sustainability and Environment, June 2012, [121]-[135].

[102] No reference is made to Planned Exclusion Zones in which harvesting is not permitted.

[103] See Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627 and Sandvik Australia Pty Ltd v Commonwealth (1989) 89 ALR 213.

[104] Management Standards, cl 1.2.1.1 (emphasis in original).