Crown Land (Reserves) (Domestic Firewood) Regulations 2022

The Regulations rely on several key concepts, some defined within the instrument and others imported from other legislation. A “firewood collection area” and a “firewood collection season” are not defined in the Regulations; their meanings are left to the principal Act or to administrative notices, creating a gap that a collector must fill by consulting separate sources. “Heavy machinery” is defined broadly in regulation 5 to include any bulldozer, crane, excavator, forwarder, hydraulic log splitter, saw bench, skidder, skid steer loader, tractor and heavy vehicle. The list is inclusive (“includes”), meaning other similar machinery could also be captured if it falls within the ordinary meaning of “heavy machinery”. “Heavy vehicle” takes its meaning from the Road Safety Act 1986, which defines it by reference to gross vehicle mass. “Impermeable surface” is defined as any surface that would prevent oil or fuel from being absorbed into the ground if spilled, and expressly includes a tarpaulin, tray or trailer. This definition is critical for the chainsaw refuelling offence in regulation 7(5). “Watercourse” has the same meaning as in section 384 of the Land Act 1958, which covers natural watercourses and likely includes streams, rivers and creeks. The Regulations also import concepts from the Traditional Owner Settlement Act 2010: “agreed activity”, “traditional owner group”, “traditional owner group agreement”, and “traditional owner group entity”. These are used by regulation 9 to create an exemption from offence provisions for members of traditional owner groups who are bound by a Part 6 agreement and who carry out an agreed activity on land covered by that agreement. The nomination requirement in regulation 6 is tied to section 21M of the Crown Land (Reserves) Act 1978, which presumably allows a person to authorise another to collect firewood on their behalf. The prescribed form (Form 1) is the only means of nomination, and it requires the nominator to specify the maximum amount of fallen or felled trees (in cubic metres) that the nominee can collect. The maximum cannot exceed 16 cubic metres for the current financial year when added to amounts collected by the nominator or household members under either the Crown Land (Reserves) Act or the Forests Act. This cap effectively limits total household domestic firewood collection from public land in Victoria.

The Regulations directly affect any person who cuts or takes away fallen or felled trees for domestic firewood in a firewood collection area during a firewood collection season. This primarily means residents of rural and peri-urban Victoria who rely on firewood for home heating, cooking or other domestic purposes. It also affects people who are nominated by another to collect firewood on their behalf, because the nomination form (Form 1) must be used and the 16 cubic metre cap applies to the nominator’s household. The Regulations affect households collectively, because the cap is measured across all members of a household and across both the Crown Land (Reserves) Act and the Forests Act regimes. Holders of leases, licences, permits or authorisations under the Crown Land (Reserves) Act or any other Act are affected differently: they are exempt from the watercourse buffer and towing/winching prohibitions (regulation 7(1) and (2)), and also from the heavy machinery prohibitions (regulation 7(3) and (4)), provided they act in accordance with their authority. This creates a two-tiered system: the general public faces stricter restrictions than those with formal permissions, who may have their own conditions. Members of traditional owner groups are also affected: if their group has entered into a traditional owner group agreement under Part 6 of the Traditional Owner Settlement Act 2010, and they are carrying out an agreed activity on the land to which the agreement applies, they are exempt from any offence provision in the Regulations that would otherwise apply to that activity. This exemption was added by the 2022 amendment and recognises traditional owner rights under settlement agreements. Enforcement officers (such as authorised officers under the Crown Land (Reserves) Act or conservation officers) are affected in that they must enforce the offences and can issue infringement notices or prosecute. The Regulations also affect the Department of Environment, Land, Water and Planning (DELWP) or its successor, which determines firewood collection areas and seasons, thereby controlling the temporal and spatial application of the prohibitions. Finally, the Regulations affect the community at large by imposing rules that aim to reduce environmental harm, but also impose compliance costs on individuals who must now carry impermeable surfaces, avoid towing, measure distances from watercourses, and keep track of their household’s firewood collection across two separate legislative schemes.

The Regulations impose five main prohibitions on persons in a firewood collection area during a firewood collection season. First, a person must not cut or take away fallen or felled trees within 20 metres of a watercourse (regulation 7(1), penalty 20 penalty units). Second, a person must not tow or winch fallen or felled trees along the ground (regulation 7(2), penalty 20 penalty units). This prohibition prevents the common practice of dragging logs to a collection point, forcing collectors to carry or lift them instead. Third, a person must not bring heavy machinery into a firewood collection area during a firewood collection season (regulation 7(3), penalty 20 penalty units). Fourth, a person must not operate heavy machinery in that area during that season (regulation 7(4), penalty 20 penalty units). These two prohibitions are separate: simply bringing heavy machinery into the area is an offence even if it is not operated, and operating it is a separate offence. The definition of heavy machinery is broad enough to capture many types of equipment, including hydraulic log splitters and tractors, which are commonly used in firewood collection. Fifth, a person must not fill a chainsaw with oil or fuel unless the chainsaw is situated on an impermeable surface (regulation 7(5), penalty 5 penalty units). This duty requires the collector to carry a tarpaulin, tray or trailer to prevent fuel spills from reaching the ground. The Regulations also create a right to nominate another person to cut and take away fallen or felled trees on one’s behalf, using the prescribed Form 1 (regulation 6). However, this right is limited by the note in the form that the total amount collected under the nomination must not exceed 16 cubic metres when added to amounts already collected by the nominator or household members under both the Crown Land (Reserves) Act and the Forests Act. There is also a right to be exempt from the watercourse buffer and towing prohibitions if the person is acting under a lease, licence, permit or authorisation under the Act or any other Act (regulation 8(1)). Similarly, the heavy machinery prohibitions do not apply if the person is acting under such an authority (regulation 8(2)). The traditional owner group exemption in regulation 9 provides a right for members of a traditional owner group bound by a Part 6 agreement to carry out agreed activities on the relevant land without being penalised for offences that would otherwise cover that conduct. There is no general right to appeal or seek a variation of the Regulations, as they are legislative instruments.

The Regulations prescribe penalties by reference to penalty units as defined in section 110 of the Sentencing Act 1991. For the financial year commencing 1 July 2022, the value of one penalty unit was $184.92, meaning the 20 penalty unit offences carry a maximum fine of $3,698.40 (rounded to the nearest dollar), and the 5 penalty unit offence (chainsaw refuelling) carries a maximum fine of $924.60. These values adjust annually on 1 July based on the Treasurer’s determination under the Monetary Units Act 2004. The penalties are relatively modest for a corporation but significant for an individual collecting firewood for domestic use. Regulation 7(1) to (4) each carry 20 penalty units, making a breach potentially costly relative to the value of the firewood collected. The Regulation does not specify whether the offences are strict liability or require proof of intention. Under Victorian law, regulatory offences are often strict liability unless a mental element is specified; this means a person can be liable even if they did not know they were in a firewood collection area or within 20 metres of a watercourse. Enforcement is likely to be carried out by authorised officers under the Crown Land (Reserves) Act 1978, or by conservation officers employed by DELWP. An officer can issue an infringement notice (on-the-spot fine) for the offences, or choose to prosecute the matter in the Magistrates’ Court. The Regulations do not create any additional enforcement powers such as seizure or detention of equipment; those powers, if any, would exist under the principal Act or other legislation. There is no defence of honest and reasonable mistake provided in the Regulations, though such a defence might be available under general criminal law principles depending on the wording of the principal Act. The traditional owner group exemption in regulation 9 could be raised as a defence if the accused is a member of a traditional owner group carrying out an agreed activity. The burden of proof would fall on the accused to show they fall within the exemption. The Regulations also do not provide for any review mechanism within the instrument itself; a person aggrieved by an enforcement decision would need to rely on general administrative law remedies. The low maximum penalty (20 penalty units) suggests these are summary offences, likely triable in the Magistrates’ Court. The practical effect of the penalty is to deter casual non-compliance, but for those who rely on firewood for heating, the cost of compliance (buying a tarp, avoiding towing, taking longer routes to stay 20 metres from watercourses) may be substantial relative to the fine, especially if the probability of detection is low.

The Regulations do not operate in isolation. They are made under the Crown Land (Reserves) Act 1978 and directly interact with that Act, particularly section 21M which allows the nomination of another person to cut and take away fallen or felled trees for domestic firewood. The nomination form prescribed in Schedule 1 gives effect to that provision, and the cap of 16 cubic metres noted on the form ties the Regulations to the Forests Act 1958 regime, because the cap includes amounts collected under that Act. This means a person who collects firewood under both the Crown Land (Reserves) Act and the Forests Act must aggregate their collection to avoid exceeding the limit. The Traditional Owner Settlement Act 2010 is central to regulation 9, which imports the definitions of “agreed activity”, “traditional owner group”, “traditional owner group agreement”, and “traditional owner group entity” from that Act. The exemption only applies if the traditional owner group has entered into a Part 6 agreement, and the activity must be an agreed activity carried out on land to which the agreement applies. This creates a layered system: on land covered by such an agreement, traditional owner group members are not subject to the offence provisions in the Regulations for agreed activities. The Road Safety Act 1986 defines “heavy vehicle”, which is part of the definition of “heavy machinery”. The Land Act 1958 defines “watercourse” via section 384, which is used to determine the 20 metre buffer zone. The Sentencing Act 1991 and the Monetary Units Act 2004 fix the penalty unit value, which changes annually. The Subordinate Legislation Act 1994 sets the ten year sunset period (regulation 3 endnote shows sunset on 9 August 2032). If a person holds a lease, licence, permit or authorisation under another Act (e.g., a forestry licence under the Forests Act 1958, or a mining licence under the Mineral Resources (Sustainable Development) Act 1990), regulation 8 exempts them from the watercourse buffer, towing/winching, and heavy machinery prohibitions. This means a timber harvesting contractor operating under a permit can bring heavy machinery into the area and tow logs, while a domestic firewood collector cannot. The interplay with the Forests Act 1958 is particularly important because the 16 cubic metre cap applies across both regimes. A household could collect, say, 10 cubic metres under the Forests Act and then only 6 cubic metres under the Crown Land (Reserves) Act. The Regulations do not describe any cross-reporting mechanism; the onus is on the household to keep accurate records. Finally, the Regulations do not affect private land or state forest outside reserves, so a person collecting firewood on private land faces no restriction under these Regulations.

The Crown Land (Reserves) (Domestic Firewood) Regulations 2022 were originally made on 9 August 2022 as S.R. No. 62/2022 and commenced on 27 August 2022. That version contained regulations 1 through 8 and Schedule 1, with the definitions in regulation 5 not yet including the traditional owner group terms or the agreed activity definition. Shortly afterward, on 20 September 2022, the Crown Land (Reserves) (Domestic Firewood) Amendment Regulations 2022 (S.R. No. 83/2022) were made and commenced on the same date. This amendment inserted the definitions of “agreed activity”, “traditional owner group”, “traditional owner group agreement”, and “traditional owner group entity” into regulation 5. It also inserted a new regulation 9, titled “Application of these Regulations to traditional owner groups”, which provides the exemption for members of traditional owner groups bound by a Part 6 agreement under the Traditional Owner Settlement Act 2010. No other amendments have been made as of the version incorporated as at 20 September 2022. The amendment appears to have been a targeted response to ensure the Regulations did not inadvertently criminalise traditional owner activities under settlement agreements. The timing suggests the original drafter may have overlooked the need for an exemption, requiring a prompt corrective instrument. The Regulations revoked the earlier Crown Land (Reserves) (Domestic Firewood) Regulations 2012 (S.R. No. 92/2012), which had been in force for ten years. The 2012 Regulations likely contained similar prohibitions but would have used older penalty unit values (e.g., $151.67 per penalty unit in 2012-13) and may not have included the traditional owner group exemption, which reflects policy developments after 2012. The amendment history is therefore minimal but significant for those affected by traditional owner group agreements. The Regulations themselves will sunset on 9 August 2032 under section 5 of the Subordinate Legislation Act 1994, unless revoked earlier or remade. Any further amendments will require a new statutory rule or amending regulation.

The Regulations are relatively new (commenced 27 August 2022) and have no reported litigation history in the source document. The endnotes do not mention any court cases, and the author is not aware of any reported decisions that interpret or challenge these particular Regulations. However, the broader area of domestic firewood collection on Crown land has generated occasional disputes, including challenges to the validity of firewood collection areas, the reasonableness of restrictions, and the application of penalty units. Because the Regulations are a subordinate instrument, any litigation would likely involve a challenge to their validity under the Crown Land (Reserves) Act 1978 or the Subordinate Legislation Act 1994. For example, a person could argue that the Regulations exceed the power conferred by section 32 of the principal Act, or that the definition of “heavy machinery” is so broad as to be uncertain. The traditional owner group exemption could also spawn disputes about what constitutes an “agreed activity” or whether a particular group has a valid Part 6 agreement. A prosecution for an offence under regulation 7 could test whether the area was properly declared a firewood collection area or whether the season was properly notified. The Regulations also import definitions from other Acts, which might be litigated if there is a dispute about the meaning of “watercourse” under the Land Act 1958 or “heavy vehicle” under the Road Safety Act 1986. Defences based on honest and reasonable mistake of fact (if available) could also be argued. The absence of litigation so far may reflect the low stakes of individual firewood collection, the cost of legal challenge relative to the penalty, or the efficient operation of the infringement notice system. Over the ten year life of the Regulations, test cases may emerge, particularly if enforcement becomes aggressive in areas where firewood is a primary energy source. Those affected should monitor any delegate’s decisions regarding firewood collection area declarations, as those could be subject to judicial review. The litigation history under the similar 2012 Regulations, if any, could provide guidance, but the source does not provide that history. In summary, the Regulations have no known litigation to date, but the provisions contain several interpretative points that could be tested in court.

Several aspects of the Regulations may catch collectors unaware. First, the terms “firewood collection area” and “firewood collection season” are not defined in the instrument. This means the geographic and temporal application of the offence provisions depends on separate declarations or determinations made by the administering agency (likely DELWP). A collector may assume a particular park is open for collection when it is not, or may inadvertently collect outside the declared season. The Regulations do not require the agency to publish these areas and seasons in the Regulations themselves, so collectors must consult external sources (e.g., the department’s website or notices). Second, the prohibition on bringing heavy machinery into a firewood collection area (regulation 7(3)) is separate from operating it (regulation 7(4)). Even if a collector never uses the machinery, merely having it in the area (e.g., a tractor parked on a trailer) is an offence. The broad definition of “heavy machinery” includes a hydraulic log splitter, which many households use. If the collector brings a trailer-mounted log splitter into the collection area but does not operate it, they still risk a 20 penalty unit fine. Third, the chainsaw refuelling offence (regulation 7(5)) requires the chainsaw to be on an impermeable surface. The definition of impermeable surface includes a tarpaulin, tray or trailer, but a collector who forgets to bring one, or whose tarp has a hole, could be liable. The offence applies even if no spill occurs; the act of filling without an impermeable surface is itself an offence. Fourth, the 20 metre watercourse buffer (regulation 7(1)) may be difficult to estimate in the field, especially near an undefined or intermittent watercourse. A collector who measures incorrectly could be liable. The definition of watercourse under the Land Act 1958 may include ephemeral streams, so even a dry creek bed could trigger the prohibition. Fifth, the cap of 16 cubic metres per financial year is easily exceeded if multiple household members collect or nominate others. The note on Form 1 makes clear that the cap applies to the total of all nominations and all collections by the nominator and household members under both the Crown Land (Reserves) Act and the Forests Act. A household that collects 10 cubic metres under the Forests Act and then nominates someone to collect another 10 cubic metres under the Crown Land (Reserves) Act will exceed the cap and may be in breach of the principal Act (though the Regulations themselves do not create an offence for exceeding the cap; the nomination form seems informational). However, the principal Act (section 21M) may contain its own penalty for exceeding a nomination limit. Sixth, the exemption for traditional owner groups only applies if the activity is an “agreed activity” under a Part 6 agreement. Not all traditional owner groups have such agreements, and the exemption does not cover other cultural activities outside the agreement. Seventh, the exemption for lease/licence/permit/authorisation holders (regulation 8) only applies if the person is acting in accordance with that authority. A contractor who brings heavy machinery into the area but deviates from the permit conditions loses the exemption. Finally, the Regulations do not provide a grace period or transitional arrangements for households that had already collected firewood under the 2012 Regulations; the cap and prohibitions apply from commencement. Collectors should treat the Regulations as creating new compliance obligations from 27 August 2022, and the 16 cubic metre cap resets each financial year (1 July to 30 June).

Compliance with the Crown Land (Reserves) (Domestic Firewood) Regulations 2022 requires a household to undertake several practical steps. First, before any collection, locate the current firewood collection areas and firewood collection seasons. These are not in the Regulations; consult the website of the administering department (DELWP) or contact the relevant regional office. Collect only within designated areas and only during the declared season. Second, identify whether the land is a regional park (the regulations apply to “certain regional parks” per the objective) and ensure you are not in a prohibited zone. Third, when selecting where to cut or take fallen or felled trees, measure at least 20 metres from any watercourse. If in doubt, assume a watercourse exists wherever water flows or has flowed, including dry creek beds. Mark the 20 metre boundary if necessary. Fourth, do not tow or winch any fallen or felled trees along the ground. Carry them by hand, use a vehicle to transport already-cut pieces (but not by dragging), or use a wheelbarrow. Fifth, do not bring any heavy machinery into the area. “Heavy machinery” includes tractors, hydraulic log splitters, saw benches, and even a forwarder or skidder. Use only hand tools, a chainsaw, and perhaps a small vehicle that is not a heavy vehicle. If you need a log splitter, use a manual one or split wood outside the collection area. Sixth, when refuelling or adding oil to a chainsaw, place the chainsaw on an impermeable surface such as a tarpaulin, plastic tray, or a trailer tray. Do not refuel directly on the ground or on grass. Keep the impermeable surface clean to prevent spills. Seventh, if you wish to nominate another person to collect firewood on your behalf, obtain Form 1 from the department or from the Victorian Legislation website. Complete it with the nominee’s name and address, and specify the maximum amount in cubic metres. Note that the amount specified, when added to all other nominations by you or your household members and to all amounts already collected by you or your household in the current financial year (under either the Crown Land (Reserves) Act or the Forests Act), must not exceed 16 cubic metres. Keep a record of all collections by every household member, under both Acts, to stay within the cap. Eighth, if you or your household members have collected firewood under the Forests Act in the same financial year, subtract that amount from the 16 cubic metre cap before using the nomination form. Maintain a simple log of dates, amounts, and the Act under which collection occurred. Ninth, if you are a member of a traditional owner group that has a Part 6 agreement under the Traditional Owner Settlement Act 2010, ensure the activity you are carrying out is an agreed activity under that agreement, that the land is covered by the agreement, and that you are bound by the agreement. If so, the offence provisions in regulation 7 do not apply to you. Keep a copy of the agreement and evidence of membership. Tenth, if you hold a lease, licence, permit or authorisation under any Act that allows you to cut or take trees in a regional park, ensure you are acting strictly in accordance with its terms. The exemptions in regulation 8 only apply when you are acting under that authority. Finally, if you are uncertain about any requirement, seek advice from the department or a lawyer familiar with Crown land law. Non-compliance risks an infringement notice of up to $3,698.40 for the most serious offences. The cost of buying a tarp and measuring tape is small relative to the potential fine. Also note that the Regulations sunset on 9 August 2032; any subsequent remaking may change the obligations.