The Treasurer, the Minister for Conservation, Forests and Lands, the Director-General of Conservation, Forests and Lands and Victree Forests Pty Ltd have agreed to certain arrangements for the supply of softwood for certain operations undertaken by Victree Forests Pty Ltd:
It is expedient to ratify the Agreement:
The Parliament of Victoria therefore enacts as follows:
1 Purpose
The purpose of this Act is to ratify an agreement with Victree Forests Pty Ltd for the supply of softwood sawlogs from Ballarat, Otways and Portland Softwood Plantations for certain operations undertaken by Victree Forests Pty Ltd.
2 Commencement
This Act comes into operation on the day on which it receives the Royal Assent.
3 Definition
In this Act, Agreement means the Agreement a copy of which is set out in the Schedule.
4 Act to bind Crown
This Act binds the Crown.
5 Ratification of Agreement
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(1) The Agreement is ratified and takes effect as if its provisions had been expressly enacted in this Act.
(2) The Director-General of Conservation, Forests and Lands is empowered to carry out the Agreement or the Agreement as amended from time to time.
6 Amendment or termination of Agreement
If the Agreement is amended or terminated in accordance with its provisions, the Minister must cause a report giving details of the amendment or termination to be laid before each House of the Parliament before the expiration of the fourteenth sitting day of that House after the Agreement is amended or terminated.
SCHEDULE
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VICTREE FORESTS AGREEMENT
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This agreement is made on 17 October 1989 between:
The Treasurer, State of Victoria,
of the first part
and:
The Minister for Conservation, Forests and Lands
of the second part
and:
Director-General of Conservation, Forests and Lands incorporated by the provisions of the Conservation, Forests and Lands Act 1987 of the State of Victoria
of the third part
and:
Victree Forests Pty Ltd a Company incorporated in the State of Victoria and having its registered office at 188 Blackshaws Road, Altona
of the fourth part
Whereas:
The Company a subsidiary of J Wright & Sons Pty Ltd has for some time with other companies in the group been engaged in operations in connection with the manufacture of sawn timber, and ancillary processing at Colac, Ballarat and Altona.
The Company desires to be satisfied that sufficient softwood sawlogs will be available to it over a period of time which will enable it to improve commercial viability.
The Government of the State of Victoria desires to provide a means by which the Company can be assured of its long term supply of softwood sawlogs and which also ensures that the public of Victoria receives an adequate return to cover the costs of certain forest production activities.
The parties hereto desire to enter into this Agreement so that upon an enabling Act being passed by Parliament and coming into operation the provisions hereinafter appearing shall have full force and effect.
Now it is hereby agreed as follows:
PART I—PRELIMINARY
In this Agreement unless inconsistent with the context or subject matter—
"the Act" means the enabling Act of the Parliament of Victoria to be passed to give effect to this Agreement;
"this Agreement" includes this Agreement as from time to time amended, supplemented or novated and includes hereto and conditions which the Director-General shall from time to time determine to apply pursuant to Clause 10(2) and 21;
"CDOB" means centre diameter over bark;
"CDUB" means centre diameter under bark;
"commencement date" means the latest of the date of this Agreement, the day of Royal Assent to the Act and (if any) the day the Act comes into operation as provided in the Act;
"Director-General" means the body corporate established by the Conservation, Forests and Lands Act 1987;
"Company" means Victree Forests Pty Ltd and upon each assignment to any other company in accordance with sub-clause (1) of Clause 4; that assignee company;
"forest officer" has the same meaning as in the Forests Act 1958;
"forest produce" has the same meaning as in the Forests Act 1958;
"the industry" means the manufacture by the Company of sawn timber, dressed timber, and further processed products from softwood sawlogs;
"minimum annual supply" means that set out in Clause 12;
"Minister" means Minister for Conservation, Forests and Lands;
"month" means calendar month;
"softwood sawlog" means sawlog timber (as defined in the Forests Act 1958) of Pinus radiata or other coniferous species meeting with specifications as determined from time to time by the Director-General provided that such specifications are consistent with Clause 13(1) of this Agreement;
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"Royalty Equation System" means the system used by the Director-General for fixing royalty rates for sawlogs;
"reading charge" means the charge determined by the Director-General which is levied from time to time on all forest produce extracted from forests to cover the cost of maintenance, improvement and construction of forest logging roads;
"person" and "persons" include a body corporate and any association of persons whether or not incorporated as a company or other body corporate;
"SEDUB" means small end diameter under bark;
"year" means a period of twelve months commencing on the first day of July and includes the period between the commencement date and 30 June 1990;
"State forest" has the same meaning as in the Forests Act 1958;
"Ballarat Plantations" means the State Softwood Plantations existing from time to time within the present Ballarat, Geelong, Horsham and Bendigo regions as classified by the State of Victoria's Department of Conservation, Forests and Lands;
"Otway Plantations" means the State Softwood Plantations existing from time to time within the present Colac Region as classified by the State of Victoria's Department of Conservation, Forests and Lands;
"Portland Plantations" means the State Softwood Plantations existing from time to time within the present Portland Region as classified by the State of Victoria's Department of Conservation, Forests and Lands.
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(1) In this Agreement unless inconsistent with the context or subject matter references to any Act shall include all amendments and re-enactments thereof for the time being in force and all supplemental legislation for the time being in force whether by regulation rule proclamation or order made or continuing under that Act or any amendment or re-enactment thereof and references to sections in any Act shall be deemed to include corresponding sections in any amending or re-enacting Act.
(2) The headings and side notes shall not affect the interpretation of this Agreement.
(1) This Agreement shall not be of any force or effect until the Act has been passed by the Parliament of Victoria and has come into operation and the passing of the Act and its coming into operation are both conditions precedent to this Agreement having any force validity or effect.
(2) Upon and after the commencement date, this Agreement shall supersede all previous Agreements, licences, and arrangements for the supply of sawlog to the Company as to the supply of such softwood to the Company from the commencement date but without prejudice to the obligations of either the Company or the Director-General under any previous agreements, licences or arrangements for the supply of sawlogs to the Company which have arisen prior to the commencement date. All representations and warranties inducing the Company to enter into this Agreement shall merge into this Agreement.
(1) The Company shall be at liberty at any time to assign its rights under this Agreement—
(a) to any company with which pursuant to the Companies (Victoria) Code it is deemed to be related but notwithstanding any such assignment the Company shall remain responsible to the Director-General for the performance of all the obligations and conditions imposed upon the Company by this Agreement; or
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(b) with the prior consent of the Director-General to any Company, such consent not to be unreasonably withheld, and thereupon the Company (whether or not there has been any previous assignment) shall be released totally and forever from all obligations and conditions imposed on the Company by this Agreement which are not up to the time of the assignment required to have been fulfilled.
(2) Upon each such assignment the assignee company shall by virtue of the Act be subject to all the obligations and conditions imposed upon the Company by this Agreement so far as they remain in force and are capable of taking effect and, save to the extent the contrary may be agreed, which are not required to have been performed by the Company prior to such assignment.
PART II—OPERATION OF INDUSTRY
Division A—Duration of Agreement
This Agreement shall remain in force until 30 June 2029 or until sooner determination in accordance with the provisions hereof.
The expiration or determination of this Agreement shall not affect the enforcement of any right obligation or liability theretofore acquired accrued or incurred.
Division B—Softwood Rights
Nothing in the Agreement shall affect the rights powers and privileges already acquired by any person under the Forests Act 1958 or any other Act.
This Agreement shall not restrict the Director-General's rights pursuant to the Forests Act 1958 to sell or grant licences to obtain forest produce but those rights shall be subject to the entitlement granted to the Company under Clause 11(1) to obtain softwood sawlog in the area of supply and the obligation by the Director-General to make available to the Company the minimum annual supply of softwood sawlog pursuant to Clause 12.
(1) Not later than the 31st day of March each year the Director-General in consultation with the Company shall draw up and deliver to the Company a plan of utilisation for the supply of softwood sawlogs for the following year and a provisional plan for supply of softwood sawlogs for the further two following years.
(2) The Company within 30 days after delivery of the plan of utilisation under Clause 9(1) may at its discretion request modification of the plan of utilisation for the following year and provided that such proposed modification is consistent with the principles of proper forest management the Director-General will not unreasonably refuse such modification.
(3) Subject to the provisions of Clauses 12 and 13 hereof, the plan of utilisation shall set out the locations from which softwood sawlogs may be obtained during the relevant period and shall specify the specific location area in hectares and the respective species, quantities, qualities and dimensions of softwood sawlogs which the Director-General estimates will be obtainable in each area, as well as the location and standard of road to be provided by the Director-General.
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(4) The Director-General and the Company may during the currency of any plan of utilisation agree to a modification of the plan.
(5) The Company shall conform with each plan or modified plan of utilisation.
(1) The Company shall comply with the provisions of the Forests Act 1958, with all regulations for the time being in force under the Forests Act as if the rights granted by this Agreement had been granted by licence under the Forests Act and with the Code of Forest Practices for Timber Production and any other relevant Codes of Practice for the time being in force under the Conservation, Forests and Lands Act 1987, and expressly including the Code of Practice for measuring and allowing for Defect Softwood Sawlogs (Metric Units) in the Third Schedule.
(2) Unless inconsistent with specific provisions of this Agreement, the Director-General may impose additional covenants terms and conditions (in this clause called "Conditions") as if this Agreement were a licence issued under Section 52 of the Forests Act 1958. Initially, such Conditions shall be those set out in the Second Schedule hereto excepting where inconsistent with specific provisions of this Agreement. Within one month of the commencement date and within thirty days prior to the first day of July in each year of this Agreement the Director-General may deliver to the Company in written form changed (including additional) Conditions as if on each first day of July the Company was being granted a further or renewed licence under the said Section 52 but such changed Conditions shall be no more onerous on the Company than those the Director-General applies generally throughout the State of Victoria in corresponding circumstances of forest management to those being so imposed. Any Conditions (whether initially or from time to time changed) shall remain imposed until replaced by some changed Conditions or further changed Conditions.
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(1) Subject to the provisions of this Agreement, the Company shall have the right to cut and remove softwood sawlogs by its servants agents or contractors as provided in Clause 12 hereof.
(2) Subject to the provisions of Clauses 12 and 13 hereof, the Company may be required to obtain softwood sawlogs suitable from which to satisfy the provisions of this Agreement from—
(a) standing trees indicated by a forest officer;
(b) softwood sawlogs produced in conjunction with a logging operation conducted by a person or persons other than the Company; or
(c) softwood sawlogs felled or felled and removed by or on behalf of the Director-General.
(3) The Director-General may in its discretion if so requested by the Company modify the Company's obligation to take softwood sawlog felled or felled and removed by or on behalf of the Director-General which has been included in the plan of utilisation for that year but any of such softwood sawlog not taken by the Company shall for the purpose of Clause 12 hereof be softwood sawlog made available to the Company by the Director-General.
(1) Subject to the provisions of Clauses 24 and 26 hereof and to the payment of the annual licence fee as provided in Clause 17 hereof and not taking into account any softwood sawlogs not accepted according to the provisions of Clause 13 hereof the Director-General, subject always to the existing entitlement to other persons of softwood in the Ballarat, Otways and Portland Plantations, shall make available to the Company from the locations set out below a minimum annual supply of softwood sawlog with Radiata Pine as the major species but able to include up to 5500 m3 of Corsican Pine and Douglas Fir in any one year which unless increased pursuant to the provisions of sub-clause (3) hereof shall be—
(i) for the period 1989–90 to 1990–91—24 625 m3 per annum;
(ii) for the period 1991–92 to 1993–94—39 625 m3 per annum;
(iii) for the period 1994–95 to 1999–00—75 000 m3 per annum;
(iv) for the period 2000–01 to 2004–05—90 000 m3 per annum;
(v) for period 2005–06 to 2009–10—125 000 m3 per annum;
(vi) for period 2010–11 to 2028–29—140 000 m3 per annum.
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(2) Should the Company take less than the minimum annual supply of softwood sawlog in any one year, it has the right to carry forward the deficiency to any of the five years next following so that such as is carried forward will be used in addition to the minimum annual supply in the year or years of utilisation.
(3) The Director-General may in its discretion offer the Company in any year a quantity of softwood sawlog additional to the minimum annual supply.
(1) The annual volume of softwood sawlog equal to or greater than 20 cm CDUB shall be at least 95% of the minimum annual supply and of the volume less than 20 cm CDUB the Director-General shall endeavour to make supply available such that—
(i) at least 50% of the volume shall be between 18·0 cm CDUB and 19·9 CDUB; and
(ii) knot size and frequency does not render the material unsuitable for the manufacture of lining boards or similar material—
and if the Company declines from time to time in any one year to take any sawlog below 20 cm CDUB then so declining that sawlog shall not prejudice the Company's right to continue to take sawlog above 20 cm CDUB in that year.
(2) The Company shall not be bound to accept—
(a) any softwood sawlog which not being sound, clean and free from rot, doze, blue stain, hail damage and the result of Sirex wasp infestation is beyond the tolerances provided in the Code of Practice Measuring and Allowing for Defect Softwood Sawlogs (Metric Units), a copy of which is set out as the Third Schedule hereto, or such other code as from time to time may be adopted in lieu thereof but should any sawlog be accepted by the Company which is not sound, clean and free from rot, doze, blue stain, hail damage and the results of Sirex wasp infestation then that sawlog shall only be accepted when measured and allowed for defect in accordance with that code of practice;
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(b) any softwood sawlog which is below the following specification—
(i) 15 cm SEDUB;
(ii) log length of 3·0 m and sweep equal to or more than 20% CDUB for a 3·0 m log length.
(3) Unless inconsistent with the preceding paragraphs (a) and (b) the defect allowance and produce specifications which apply generally to the clients, that is to say the various purchasers and/or licensees and/or persons bound by agreement to the Director-General, shall apply with respect to this Agreement.
13A. In consideration for the Director-General entering this Agreement the Company agrees to carry out the investment programmes in the First Schedule hereto.
(1) For all softwood sawlogs obtained by it under this Agreement the Company shall pay—
(a) as to softwood sawlogs which the Company by its servants agents or contractors removes or fells and removes the royalty and roading charges as provided for in Clauses 16 and 18 of this Agreement; and
(b) as to softwood sawlogs either felled or felled and removed by or on behalf of the Director-General the royalty and roading charges as aforesaid and a charge to be agreed upon from time to time between the Director-General and the Company for—
(i) the cost to the Director-General of felling or felling and removal of softwood sawlog in or from the particular area; and
(ii) the overhead expenses of the Director-General in connection therewith.
(2) Failing agreement within fourteen days on the charge referred to in paragraph (b) of sub-clause (1) hereof the charge shall be determined by the Director-General but so that the charge for the cost of felling or felling and removal of softwood sawlogs in or from any area shall be comparable to the cost generally incurred by the Company for felling and felling and removal (as the case may be) of softwood sawlogs at that time in similar form in or from areas which are similar with respect to yield of softwood sawlogs physical circumstances of extraction and situation in regard to means of transport provided that the arbitration provisions in Clause 27 shall be applicable to the Director-General's determination.
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(1) Subject to the provisions of Clauses 25 and 26 hereof the Company shall be bound in each year from 1 July 1994 in which the minimum annual supply of softwood sawlogs to which it is entitled in that year is available to it either—
(a) to take not less than 90% of softwood sawlog required to be made available in the plan of utilisation; or
(b) if it takes less than the quantities set out in the preceding paragraph (a) hereof to pay royalty to the Director-General on the deficiency at a rate equal to the royalty rate payable in that year under Clause 18 hereof.
(2) If the Company during any of the five years next following any year in which there is a deficiency obtains a quantity of softwood sawlog in excess of the minimum annual supply the royalty payable on such excess shall be reduced by the amount of royalty paid in respect of the deficiency and interest accrued thereon. Interest shall be calculated from the date of payment of the royalty paid on such excess with daily rests until the date of utilisation at a rate from time to time being fixed under Section 30 of the Conservation, Forests and Lands Act 1987.
The following provision shall apply with respect to royalty and roading charges payable under this Agreement:
(a) Royalty and roading charges shall be payable at such times and in such manner as the Director-General from time to time determines after the amounts have been ascertained by weighing and/or measuring in accordance with this Agreement.
(b) Without prejudice to the obligations of the Company under Clause 15 hereof if any account remains overdue for more than 14 days the Director-General may without limiting the obligations of the Company under Clause 15 hereof by notice in writing to the Company suspend its right to obtain softwood sawlog under this Agreement until payment is made.
(c) If the Company disputes the amount of any payment demanded by the Director-General it shall make the payment under protest and thereafter shall be entitled to take proceedings for recovery of, and recover, any amount in excess of the amount it was liable to pay, and interest thereon at the rate from time to time being fixed under Section 30 of the Conservation, Forests and Lands Act 1987.
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(1) In addition to royalty and roading charges payable in accordance with Clause 14 hereof an annual licence fee shall be paid by the Company to the Director-General with respect to the acquisition by the Company of the right to cut and remove sawlog as provided in Clause 11(1) hereof.
(2) The annual licence fee will be due and payable in each year on the 30th day of June with respect to the minimum annual supply of softwood sawlogs required to be made available in the following year. The Director-General may in his discretion determine that the annual fee may be paid in six monthly instalments.
(3) The annual licence fee will be determined annually by adjusting the fee paid in the preceding year (the base rate) by the same proportion by which royalty rates are to be adjusted that year provided that—
(a) with respect to the first annual licence fee payable on 1 July 1990 the base rate shall be deemed to be $1.19 per cubic metre;
(b) with respect to determining the annual licence fee payable on 1 July 1991 the base rate shall be replaced by the new base rate of $2.78 per cubic metre as adjusted in the same proportion as each annual adjustment to royalty rates since 1 July 1989;
(c) with respect to determining the annual licence fee payable on 1 July 1994 the base rate shall be replaced by a new base rate of $4.31 per cubic metre as adjusted in the same proportion as each annual adjustment of royalty rates since 1 July 1989.
(d) with respect to determining the annual licence fee payable on I July 1998 and thereafter, at five yearly intervals sub-clause (4) of this clause shall apply.
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(4) The amount of the annual licence fee will be reviewed between 1 April 1998 and 30 June 1998 and thereafter between the 1st day of April and the 30th day of June at five yearly intervals from 1 April 1998 and in the following manner:
(a) A review is to be conducted by the Director-General and the Company jointly;
(b) The review will establish if a new base rate shall apply;
(c) The review will take account of—
(i) the ongoing liability of the Company to maintain its competitive position in domestic and international sawn timber and related products markets taking into account circumstances not of its own making;
(ii) changes in the average domestic market price of sawn timber relative to general cost increases in the community as measured by the consumer price index;
(iii) changes in the landed price of imported sawn timber and related products, relative to economy wide indices of capital and labour costs;
(iv) the benefit of the special rights granted to the Company under this Agreement;
(d) The review will last no longer than the 30th day of June in the year in which it commenced. In the event that agreement is not reached between the Director-General and the Company, on or before that date the matter will be referred to arbitration as provided by Clause 27 hereof.
(e) Any new base rate so determined will be adjusted in each of the subsequent four years, similarly as set out in sub-clause (3) hereof.
(5) In the event of any dispute that can touch upon the calculation of the annual licence fee which is referred to arbitration the annual licence fee shall be paid on the 30th day of June as if no such dispute had existed; but if the resolution of the dispute (whether by agreement between the parties or arbitration) causes a different annual licence fee to become applicable the Company shall pay to the Director-General or the Director-General shall pay to the Company forthwith an amount being the difference between the amount of the annual licence fee so paid and the amount which would have been paid had the resolution of the dispute been achieved on that 30th day of June.
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(1) The royalty payable from time to time for sawlogs shall be at the rate as determined in accordance with the Royalty Equation System and consistent with general softwood sawlog pricing from public forests in the State of Victoria.
(2) The roading charge payable on all softwood sawlogs removed under this Agreement shall be determined by the Director-General from time to time in the light of projected expenditure on timber extraction roads accessing softwood plantations in the Ballarat, Otways and Portland Softwood Management Areas and the advice of the Forest Management Area Roading Advisory Committees on which the Company may at its option be represented.
The Company shall not construct within State forest any road track or passage or any chute without the prior written consent of a forest officer and shall not construct within State forest any tramway flume or building or erect any haulage or conversion unit without the prior written consent of the Director-General, such consent in each case not to be unreasonably withheld.
(1) The quantity of softwood sawlogs upon which royalty and roading charge is payable under this Agreement shall be determined in such manner (allowance being made for bark and defect) and at such place as may be agreed upon by the Director-General and the Company or failing agreement within thirty days as the Director-General may direct provided that the arbitration provisions in Clause 27 shall be applicable to this direction.
(2) If the royalty so payable is to be determined by mass—
(a) the Company shall provide at its plant a weighbridge of a pattern which meets the requirements of the Weights and Measures Act 1958 shall while this Agreement remains in force have the weighbridge maintained and periodically verified and stamped in accordance with the provisions of that Act and shall operate the weighbridge in accordance with the reasonable requirements of the Director-General;
(b) at all times while the weighbridge is in accurate working order the quantity of softwood sawlogs upon which royalty is payable under this Agreement shall be determined by weighing it on the weighbridge; and
(c) at all times while the weighbridge is not in accurate working order the quantity of softwood sawlogs upon which the royalty is payable under this Agreement shall be determined in such manner as may be agreed upon by the Director-General and the Company or failing agreement within fourteen days as the Director-General may reasonably direct.
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The Director-General may from time to time give to the Company written notice of reasonable conditions not inconsistent with the provisions and intent of this Agreement which conditions are, having regard to the overall provisions of this Agreement, of a minor nature and which further are of a temporary or passing nature and which shall apply in the areas from which the Company is obtaining softwood under this Agreement. The Company shall comply with the said conditions.
(1) The Company shall inform the Director-General in writing once in each year of the names of its servants agents and contractors who are engaged in obtaining softwood sawlogs under this Agreement.
(2) The Company shall supply to each such person for production when required by a forest officer evidence in a form satisfactory to the Director-General that such person is engaged in obtaining softwood sawlogs under this Agreement and the Company shall forthwith inform the Director-General in writing whenever any such person ceases to be so engaged.
(3) (a) The Company shall include in every contract entered by it with a contractor for obtaining softwood sawlogs under this Agreement provisions requiring the contractor to comply with the Forests Act 1958 the regulations made under the Forests Act the conditions referred to in Clause 22 hereof which are applicable to that contractor the conditions referred to in Clause 10(2) hereof which are applicable to that contractor and with the Code of Forest Practices for Timber Production and any other relevant Codes of Practices for the time being in force under the Conservation, Forests and Lands Act 1987.
(b) The Company shall upon making any such contract forthwith give to the Director-General written notice of the contract specifying the name of the contractor, the duration of the contract and the quantity of and location from which softwood sawlogs are to be obtained thereunder.
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(1) If any of the softwood plantations upon which supply is dependent are damaged or destroyed by fire disease or other similar cause beyond the control of the Director-General to such extent that it is impracticable for the Director-General to comply with the provisions of Clause 12 hereof or if by reason of any other cause beyond the control of the Director-General it is prevented from complying with those provisions—
(a) the Company shall have no claim against the Director-General for the non-fulfilment of its obligations under those provisions as far as non-fulfilment is due to any such cause; and
(b) the Director-General shall use its best endeavours to provide a supply of softwood sawlogs to the Company which is economically viable to the Company and having regard on the one hand to the obligation of the Director-General under this Agreement to make available to the Company certain supplies of softwood sawlog and on the other hand the duty of the Director-General to protect State forests and control and manage State forests throughout the State of Victoria in a manner which is not unduly damaging financially to the Director-General or to the revenues of the State of Victoria and the obligations of the Director-General under other agreements and licences to other persons.
If, in the opinion of the Director-General, extensive damage occurs to State forest softwood plantations within 250 kilometres road distance from the Company's mill at Colac, softwood sawlog salvaged from these plantations may be offered to the Company in addition to the minimum annual supply at a royalty after making allowance as determined by the Director-General for additional harvesting, freight and manufacturing costs necessarily incurred.
If—
(a) any of the softwood plantations upon which supply is dependent are damaged or destroyed by fire disease or other cause to such an extent that it is impracticable for the Director-General to comply with the provisions of Clause 12 hereof or if by reason of any other cause beyond the control of the Director-General it is prevented from complying with those provisions;
(b) the Company's plant or any works used by it for the purpose of the industry are substantially damaged or destroyed by fire or other calamity in such circumstances as the Company is not reasonably (as to amount and risk) indemnified under a policy of insurance (which is not avoided by the insurer) having regard to the insurance cover existing at the time of entering into this Agreement;
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(c) by reason of war riot civil commotion strike lockout or action in the nature of a strike or lockout ban or limitation on work or restraint of labour act or restraint of any Government or semi-government or other public or statutory authority (including any amendment to legislation currently in force or to the Act which adversely affects the Company's position under this Agreement) or any other cause substantially beyond the control of the Company (excepting events to which paragraph (b) of this clause applies) the Company is substantially impeded from obtaining softwood sawlogs or carrying on the industry; or
(d) by reason of any change in the circumstances which exist at the time of entry into this Agreement, which are substantially beyond the control of the Company, the carrying on of the industry or the continued performance by the Company of its obligations under Clauses 14, 15 and 17 hereof becomes commercially impracticable;
then in any of those events—
(i) the Company may apply to the Director-General for termination, suspension or a reasonable modification of the extent or operation of its obligations under this Agreement or for an extension of time for the performance or observance thereof;
(ii) the Director-General upon any such application by the Company shall decide to grant or refuse termination, a suspension of the said obligations or a reasonable modification of their extent or operation or an extension of time for their performance or observance;
(iii) if the Company is dissatisfied with the decision of the Director-General upon any such application—
A. arising out of the provisions of the preceding paragraphs (a) and/or (b) and/or (c); or
B. with the delay (not being less than ten working days from the date of application) in making the decision arising out of the provisions of the preceding paragraphs (a) and/or (b) and/or (c); or
C. with the delay (not being less than sixty days from the date of application) in making the decision arising out of the provisions of the preceding paragraph (d);
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then the matter shall if the Company so elects be determined by arbitration and the arbitrators may determine the matter with reference to considerations of general justice and fairness;
(iv) if the Company is dissatisfied with the decision of the Director-General upon any such application arising out of the provision of the preceding paragraph (d) the Company shall suggest to the Director-General that the Company and the Director-General should negotiate in good faith to reach a decision acceptable to the Company and the Director-General but if the Company and the Director-General after negotiating in good faith cannot within a reasonable time (and in any event not less than fifteen weeks) reach a decision acceptable to the Company and the Director-General and if it is then after 1 July 1998 the matter shall if the Company so elects be determined by arbitration and the arbitrators may determine the matter with reference to considerations of general justice and fairness.
If this Agreement has been suspended or modified in accordance with Clause 25(d) and if afterwards the industry or the continued performance by the Company of its obligations under Clauses 14, 15 and 17 hereof are considered by the Director-General to be commercially viable then—
(i) the Director-General may apply to the Company for a further reasonable modification of the extent or operation of the Company's obligations under this Agreement but not so as to exceed the obligations of the Company initially imposed by this Agreement;
(ii) the Company upon any such application by the Director-General shall decide to grant or refuse a further reasonable modification of this extent;
(iii) if the Director-General is dissatisfied with the delay (not being less than thirty days) in making the decision the matter shall if the Director-General so elects be determined by arbitration and the arbitrators may determine the matter with reference to considerations of general justice and fairness;
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(iv) if the Director-General is dissatisfied with the decision of the Company upon any such application the Director-General shall suggest to the Company that the Director-General and the Company should negotiate in good faith to reach a decision acceptable to the Director-General and the Company but if the Director-General and the Company after negotiating in good faith cannot within a reasonable time (and in any event not less than fifteen weeks) reach a decision acceptable to the Director-General and the Company the matter shall if the Director-General so elects be determined by arbitration and the arbitrators may determine the matter with reference to considerations of general justice and fairness but the arbitrators shall not make any award by which the obligations of the Company shall exceed those obligations initially imposed by this Agreement nor any award which has an effect prior to the date of the Director-General's application made under the preceding paragraph (i) which is referred to arbitration.
Wherever it is provided that any matter shall or may be determined by arbitration—
(a) the matter shall be referred to two arbitrators one to be appointed by the Company and one by the Director-General;
(b) the provisions of the Commercial Arbitration Act 1984 shall apply to the reference;
(c) the arbitrators or umpire or some other person appointed on their behalf may investigate the Company's or Director-General's affairs and accounts so far as may be necessary to assist them to determine any matter referred to them and the Company and the Director-General each shall give them full access to all accounts and papers necessary for that purpose and shall afford them full information and assistance having due regard to confidential nature of investigation.
(1) If the Company contravenes or fails to comply with the provisions of this Agreement in circumstances where the failure represents a breach capable of remedy, the following shall apply:
(a) The Director-General shall give notice in writing to the Company (by handing the same personally to a Director or the Secretary of the Company) specifying with specific detail the contravention or failure complained of together with details of the date and form in which the Regional Manager or the Assistant Director of the Department of Conservation, Forests and Lands (as the case may be) first became aware of the same;
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(b) If the Company fails to remedy the contravention or fails to cease the contravention or failure (as the case may be) within ninety days of receipt of the notice referred to in the preceding paragraph (a), then with the approval of the Minister the Director-General by notice in writing under its common seal or over the hand of its Secretary may determine this Agreement.
(2) If the Company contravenes or fails to comply with the provisions of this Agreement in circumstances where such breach is not capable of being remedied, the following shall apply:
(a) The Director-General shall give notice to the Company (by handing the same personally to a Director or the Secretary of the Company) specifying with specific detail the contravention or failure complained of together with details of the date and form in which the Regional Manager or the Assistant Director of the Department of Conservation, Forests and Lands (as the case may be) first became aware of the same and requiring it forthwith to desist from repeating the contravention or failure;
(b) If within a period of two years from the service of the aforesaid notice the Company has repeated the breach complained of, then with the approval of the Minister the Director-General by notice in writing under its common seal or over the hand of its Secretary may determine this Agreement.
(3) If the Company—
(a) fails to complete any of the investment programmes as contained in the First Schedule of the Agreement within the times specified therein;
(b) has had a receiver or a receiver and manager appointed over its property; or
(c) enters into any scheme or arrangement for the benefit of its creditors generally which has not been totally fulfilled within sixty days, then with the approval of the Minister the Director-General by notice in writing under its common seal may in its absolute discretion determine this Agreement.
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(4) Notwithstanding the provisions of the preceding sub-clauses (1), (2) and (3), if the Company enters into liquidation (other than a voluntary liquidation for the purposes of reconstruction) with the approval of the Minister the Director-General by notice in writing under its Common Seal or over the hand of its Secretary may determine this Agreement.
(1) The Director-General and the Company may from time to time amend this Agreement by such additions deletions and variations of matters of detail as may be necessary or desirable to facilitate the carrying on of the industry.
(2) The Director-General and the Company may with the approval of the Minister determine this Agreement upon such terms as they deem fit.
Notwithstanding any thing in any Act the Company shall not be required to obtain any lease licence permit or authority beyond this Agreement to cut and remove softwood sawlog as provided in Clause 12 hereof.
(1) In the last three years of this Agreement the Director-General shall if the Company seeks a further Agreement to assure to it supply of softwood sawlogs for the continuance and/or expansion of the industry investigate the development of the industry and if satisfied that the Company needs to have supplies of softwood sawlogs assured to it by a further Agreement enter into negotiations with the Company for that purpose.
(2) If a further Agreement has been agreed upon and executed the Director-General shall (if necessary) recommend to the Minister that a Bill be introduced into the Parliament of Victoria as soon as possible to ratify validate approve and otherwise give effect to it.
The Minister approves this Agreement.
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In witness whereof the parties hereto have executed as a deed this Agreement the day and year first before written.
Signed sealed and delivered by the Honourable, the
Treasurer in the presence of: R. A. JOLLY L.S.
S. POSTLETHWAITE
Signed sealed and delivered by the Honourable, the
Minister for Conservation, Forests and Lands
in the presence of: K. SETCHES L.S.
GAVIN JENNINGS
The common seal of Director-General of
Conservation, Forests and Lands was hereunto
affixed in the presence of: L. FOSTER L.S.
K. HARBECK
The common seal of Victree Forests Pty. Ltd. was
hereto affixed by authority of the Directors in
the presence of: L.S.
J. F. L. WRIGHT
ASHLEY A. WRIGHT
FIRST SCHEDULE
INVESTMENT PROGRAMMES TO BE UNDERTAKEN BY VICTREE FORESTS PTY LTD
(1) The Company undertakes and agrees to construct in the Colac area of the State of Victoria:
(a) A new high temperature fast drying kiln to be installed in 1990–1991 at a cost equivalent to $1·25 M ($ 1989); and
(b) A new Green Sawmill with an initial capacity of 50 000 cubic metres of softwood sawlog timber which has been designed by an Australian firm and shall be constructed in 1991–92, at a cost equivalent to $4·0 M ($ 1989). The infeed and debarking section of this mill has already been completed and is in operation. The capacity of the mill is to be increased to 100 000 cubic metres of softwood sawlog timber and 150 000 cubic metres of softwood sawlog timber in 1995 and 2005 respectively. The mill is scheduled to start processing at the end of 1992.
(2) The Company undertakes and agrees to invest in the Altona area of the State of Victoria as follows:
(a) In the years 1989–1991 the Company is to spend equivalent to $300 000 ($ 1989) in installing a new cyclone burner system. This system shall be locally produced and will use local labour during its installation.
(b) The Company will expend in the years 1989–1990 equivalent to $200 000 ($ 1989) in material and packing equipment in respect of the handling of added value timber products.
(c) An automatic docking saw, valued at equivalent to $300 000 ($ 1989) is to be installed in 1990–1991.
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SECOND SCHEDULE
SOFTWOOD SAWLOG LICENCE
Allocation
(a) In its operations the licensee shall follow each plan of utilisation or modified plan, and shall ensure forest operations are confined to the area of supply and are conducted in accordance with specifications operational procedures and prescriptions as directed by the Director-General.
(b) From time to time during this licence, the Director-General or an authorised officer shall specify whether timber to be taken by the licensee shall be taken from trees to be felled by the licensee or shall be taken from timber produced or to be produced by the Director-General or others. Any timber produced by the licensee from trees felled by or on behalf of the licensee may be directed by the Director-General for supply to others.
(c) The Director-General or an authorised officer may also specify any or all of—
what trees shall be felled by the licensee;
the kinds of timber which may be taken by the licensee;
from what places the licensee shall take timber produced or to be produced by the Director-General or others.
Operational
(a) The licensee shall comply with any lawful directions given by an authorised officer for the purposes of this licence.
(b) The licensee shall carry out, at the cost of the licensee such post logging rehabilitation works during and on completion of a forest operation as directed by an authorised officer. Where two or more licensees undertake joint logging operations the Director-General may require those licensees to lodge joint security to provide for reasonable costs of post logging rehabilitation should the contractor(s) engaged by those licensees fail to undertake post logging rehabilitation works as directed by an authorised officer. Work performed as directed by an authorised officer in additional to that specified in any applicable code of practice or licence conditions shall be reimbursed to the licensee by the Director-General.
(c) The Director-General will establish and maintain a network of major extraction roads to facilitate logging during typical seasonal conditions. The licensee may be required to construct and maintain such major extraction roads as may be agreed upon between the licensee and the Director-General. Reasonable costs of such work shall be reimbursed to the licensee by the Director-General.
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(a) As from 1 September 1989 all persons employed by the licensee to obtain forest produce under the authority of this licence shall be licensed by the Director-General to operate in public forests.
(b) The licensee shall ensure that each person employed by the licensee in cutting trees and taking timber under this licence is—
(i) licensed for the particular operation or operations for which the person is employed or engaged under an approved training scheme;
(ii) properly equipped with all requisite safety equipment; and
(iii) properly supervised to ensure compliance with proper operational procedures.
Royalty, Annual Licence Fee and Charges
Royalty rates shall be determined by the Director-General from time to time and paid by the licensee to Director-General pursuant to the licence. The Director-General shall advise the licensee in writing of such royalty rates no less than 14 days prior to the application of such rates in royalty accounts issued under the provisions of Condition 8 hereof.
Royalty payments shall be calculated on the kind and quantity of timber taken. Measurement of the quantity of timber shall be made in such a manner as is determined by the Director-General and at such locations as are indicated by the Director-General. If the licensee considers that the defect allowances, measurements or log grades recorded in respect of any particular log are incorrect, the log concerned may be set aside for inspection by an authorised officer, whose decision shall be final. No additional allowance shall be given if sawing operations have been commenced on that log.
Royalty shall be charged on all timber taken under this licence. Where in the opinion of an authorised officer, timber which the licensee is authorised to take under this licence remains in any tree felled by or on behalf of the licensee, royalty may be charged on such timber at rates applicable to the kind or kinds of the timber not removed and the quantity of timber equivalent to that remaining in the trees shall be included in the quantity taken pursuant to this licence.
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Royalty rates shall be subject to variation at any time.
(a) Variation in individual rates may be made on account of a change in any of the factors used in the determination of that rate. Any variation to royalty rates resulting from a particular written request by the licensee shall operate from the date of the request.
(b) A general review shall take place annually, and shall reflect—
(i) changes in the costs of production as reflected in commercial accounting systems developed by the Director-General;
(ii) utilisation standards for various species and grades of timber;
(iii) market prices for timber products; and
(iv) the findings of timber pricing studies.
(a) Accounts for royalty shall be issued monthly.
(b) An account issued for royalty is due for payment immediately it is rendered and becomes overdue if not paid by thirty (30) days from the date the account is rendered.
(c) If royalty is not paid after becoming overdue the licensee shall pay interest on the sum due but unpaid, from the date that sum became overdue at the rate for the time being fixed under Section 30 of the Conservation, Forests and Lands Act 1987.
(d) If an account remains overdue for more than 14 days then the Director-General, or a Regional Manager of the Department of Conservation, Forests and Lands, may direct by notice in writing to the licensee that no further timber shall be taken on credit by the licensee under this licence until the outstanding amount has been paid in full.
Fire
For the purpose of ensuring, so far as possible, the availability of timber which is permitted to be taken by the licensee, the licensee shall—
(a) take all reasonably practicable action to avoid the occurrence of any fire which may occur within the area of supply or adjacent to the area of supply and for the purpose of suppressing any fire which may occur;
(b) if called upon by the Director-General or any authorised officer the licensee shall make available all assistance in the form of personnel, plant and equipment, to the Director-General for the purpose of suppressing any fire which may occur in the area of supply or adjacent to the area of supply;
(c) the licensee shall free any contractor and any or all of the personnel, plant or equipment of such contractor engaged by the licensee from all contractual obligations towards the licensee for use by the Director-General for the purpose of fire suppression;
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(d) except as hereinafter provided, the Director-General shall reimburse the licensee for reasonable costs in making any personnel, plant or equipment available to the Director-General for the purposes of fire suppression. The rate of reimbursement to be paid by the Director-General shall be based upon a schedule of rates which shall be revised annually by the Director-General;
(e) the Director-General shall indemnify the licensee for loss incurred with respect to any personnel, plant or equipment while engaged in fire suppression including associated travelling. Without affecting the generality of the foregoing, such loss shall include—
any claim for compensation or damage to equipment by employees or contractors made available by the licensee due to accident resulting from such fire suppression activities;
any insurance premium increase which results from claims made due to loss or damage suffered during such fire suppression activities, provided such increase is clearly related to a particular such activity and that alone;
(f) the Director-General shall not be liable to pay compensation to the licensee for any loss of production or profit occasioned by the licensee making available its employees, plant or equipment for fire suppression;
(g) no compensation or reimbursement shall be made by the Director-General to the licensee with respect to a fire when in the opinion of the Director-General there was sufficient evidence to establish beyond reasonable doubt that the fire was knowingly or negligently lit, caused or maintained by the licensee or any of its employees or contractors in the course of their employment or contractual obligations;
(h) no compensation or reimbursement shall be made by the Director-General to the licensee for any loss or damage caused by any fire which breaks out within 800 metres of its logging operations or sawmill unless the Director-General is satisfied that the licensee or any of its employees on being informed or on becoming aware of the fire took prompt and effective steps to engage in fighting the fire;
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(i) reimbursement made to the licensee by the Director-General under sub-section (d) hereof shall be made within 30 days of the last day of the month of supply of the services, and if not made by that date, the amount due shall attract interest at the rate specified in Condition 16(c) hereof from the due date.
Other Contracts
The licensee shall include in every contract made by it with a contractor for cutting trees and/or taking away of timber for the purposes of this licence, clauses which incorporate similar obligations to those referred to in Clauses 1(a), 2(a), (b), 3(a), (b) and 9 above as if the contractor were the licensee.
THIRD SCHEDULE
CODE OF PRACTICE
MEASURING AND ALLOWING FOR DEFECT SOFTWOOD SAWLOGS
(Metric Units)
This Code is intended to cover—
(a) tree lengths, trimmed and headed off but not crosscut to long lengths;
(b) logs cut to length for cartage.
Note: In reference to (b) above, it is assumed that some of the defects present in tree lengths will be docked out by judicious crosscutting into log lengths for cartage.
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Measurement
Measurement of sawlogs shall be made at such locations as are indicated by the Director-General and shall be made in such a manner as determined by the Director-General.
The Director-General may use net measurement or gross measurement to specify the quantities of timber taken and may specify those quantities by volume or weight.
Measuring Volume
Measurement may take place at stump or at landing at the discretion of the Regional Manager.
All measurements shall be taken over bark. (Rennick excepted).
In normal tree length measurement sawlogs shall be measured as successive 6·3 m lengths commencing at the butt except that top lengths may be any length not exceeding 8·4 metre.
Where it is the practice of the sawmiller to mill in 1·5 m lengths, 6·0 m lengths shall be measured in lieu of 6·3 metre.
An allowance of 0·1 m for all recorded lengths shall be given for cross cutting.
Centre diameter over bark of each log or length shall be measured, using steel diameter callipers, at mid length irrespective of whether a length allowance for defect has been made or not. (Rennick excepted).
Where there is a whorl of knots or other enlargement at mid length the diameter shall be measured at a point above or below the whorl or enlargement where the log is of normal conformation.
Where it is not practicable to use diameter callipers for a particular measurement the diameter may be measured by tape.
Diameters shall be recorded to the backward whole centimetre.
Allowing for Defect
In determining allowances for defects, or supervising the docking out of defects, it should be assumed that a wide range of lengths of logs is acceptable to the sawmiller irrespective of the lengths that are actually cut. "Wide range" in this context means 2·1 m and up but also includes lengths shorter than 2·1 m in every case where it is the normal practice of the particular miller to cut such short lengths for any purpose.
Allowances shall not be given for falling or snigging damage except where in any particular case the Regional Manager is satisfied that such damage was completely unavoidable.
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Allowance for blue stain, fire damage, hail damage, sirex treatment etc., shall only be made on specified approval from Head Office following report and recommendation by the Regional Manager.
Where a fork occurs the section of the tree affected by twin heart and bends in the limbs at their junctions with the trunk shall be subject to an allowance. The limbs (if merchantable) of the tree above and the bole below the defective section shall be measured as if they were separate trees.
A bend occurs where the distance between the surface of the bark and a 2·1 m straight edge laid along the log exceeds one-fifth of the diameter of the log. The allowance for bend shall be the length of log affected by bend.
Knots exceeding 75 mm in diameter, measured across the shorter axis, shall be subject to allowance. The allowance to be given shall be determined by multiplying the length of log affected (angular projection of the knot into the log) by the proportion of the cross-section of the log affecting and expressing the result as a length allowance to the nearer 0·1 metre.
An allowance of the full length affected shall be given where two or more whorls of cone holes occur within any 0·9 m length of log.
For the purpose of this clause whorl of cone holes means three or more cone holes within 0·1 m length of log.
Miscellaneous defects subject to allowance are:
(i) Twisted stem and break resulting from stem. The allowance shall be the length of log visibly affected.
(ii) Rot, dry side, fire scar and previous mechanical damage. The allowance shall be determined by multiplying the length of log affected by the average cross-sectional area of the log affected and expressing the result as a length allowance to the nearer 0·1 metre.
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ENDNOTES
Endnotes
General Information
Minister's second reading speech—
Legislative Assembly: 14 November 1989
Legislative Council: 17 November 1989
The long title for the Bill for this Act was "A Bill to ratify an agreement with Victree Forests Pty Ltd and for other purposes.".
The Forests (Victree Forests Agreement) Act 1989 was assented to on 5 December 1989 and came into operation on 5 December 1989: section 2.
Table of Amendments
Endnotes
There are no amendments made to the Forests (Victree Forests Agreement) Act 1989 by Acts and subordinate instruments.