Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2022 - 2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATURE REPAIR MARKET BILL 2023
EXPLANATORY MEMORANDUM
(Circulated by the authority of the Minister for the Environment and Water,
the Hon Tanya Plibersek MP)
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NATURE REPAIR MARKET BILL 2023
GENERAL OUTLINE
The Nature Repair Market Bill 2023 (the Bill) would provide a framework for a voluntary
national market that delivers improved biodiversity outcomes. Eligible landholders who
undertake projects that enhance or protect biodiversity would be able to receive a tradeable
certificate that will be tracked through a national register. This framework would facilitate
private investment in biodiversity, including where carbon storage projects have biodiversity
co-benefits.
The nature repair market would be based on science and enable Aboriginal persons and
Torres Strait Islanders to promote their unique knowledge, on their terms. Establishing the
market in legislation would ensure its ongoing integrity, encourage investment in nature, and
drive environmental improvements across Australia.
To make it easier for landholders to undertake projects that deliver both carbon and
biodiversity benefits, the Bill has similarities with the Carbon Credits (Carbon Farming
Initiative) Act 2011 (CFI Act). Alignment between the carbon and nature markets will help
ensure investments in land sector carbon projects deliver biodiversity co-benefits.
The Bill would:
• promote investment in long-term repair and protection of biodiversity in native
species in Australia, including its external territories on land or waters;
• create a nationally consistent framework to describe and measure biodiversity
outcomes;
• enable biodiversity certificates describing biodiversity projects to be purchased,
transferred, claimed, used and publicly tracked. Under the framework each project
would be awarded one certificate. Consistent verifiable publicly available information
on projects and certificates would allow purchasers to make informed decisions;
• require project proponents to monitor and report on their project including the
biodiversity outcomes;
• encourage participation in the market by all persons, including Aboriginal persons and
Torres Strait Islanders;
• provide requirements to obtain consent from native title holders to carry out
biodiversity projects under the Bill on such areas (land or waters). This would ensure
that native title holders have the final say on whether, and what kind of, biodiversity
projects are carried out on or in native title areas. It would promote the engagement
and cooperation of Aboriginal persons and Torres Strait Islanders in the enhancement
or protection of biodiversity in native species in Australia;
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• establish project assurance and compliance systems to provide certainty to the market.
This would include providing appropriate and effective integrity measures that would
ensure that the scheme under the Bill only rewards genuine and verifiable biodiversity
protection or enhancement (including by requiring additionality) - so that certificates
are only issued for biodiversity protection or enhancement that would not normally
have occurred and, therefore, provide a genuine environmental benefit;
• establish the Nature Repair Market Committee, which would consist of independent
experts to, among other functions, advise and provide recommendations to the
Minister on the development of methodology determinations (methods). Methods
would set requirements on how registered biodiversity projects are to be carried out.
This would include requirements relating to activities to be carried out in the project
area, and conditions to be met for a biodiversity certificate to be issued. The Minister
would only be able to make or vary a method if the Committee has first advised that
the proposed method (or variation) complies with the biodiversity integrity standards
and the Minister is also satisfied the method meets the standards.
• establish a public register of all registered biodiversity projects and certificates to
allow for tracking of project progress and citizen oversight.
The Bill would establish a flexible framework to allow for market innovation and enable new
issues to be addressed as the market evolves. It would allow all landholders to participate,
including Aboriginal persons and Torres Strait Islanders, and would enable certificates to be
issued for a wide range of project types. This would recognise that landholders have different
circumstances, interests and aspirations, and would encourage participation and increase
supply.
The framework would enable certification of a wide range of project types. Projects could
involve replanting or nature restoration that increases carbon storage and improves
biodiversity. Projects could also involve the management of existing vegetation to improve
habitat condition or outcomes for native species. This flexibility would allow the market to
meet buyers' different needs. Demand for nature repair projects is evolving and growing
rapidly. Buyers are expecting to be able to invest in nature to achieve philanthropic
objectives, meet their social and environmental responsibilities, compensate for their impacts
on nature and manage risks associated with their dependencies on nature.
The Bill would allow elements of the scheme, such as the information on biodiversity
certificates and the different methods for undertaking projects, to be detailed in subordinate
legislation. Legislative instruments for these purposes would be made by the Minister,
informed by close consultation with stakeholders and across government. It is intended that
project methods would be co-designed with stakeholders, including Aboriginal persons and
Torres Strait Islanders. The Minister would be responsible for making, varying or revoking
methods, appointing Committee members and making rules to support the administration of
the scheme.
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The Bill would be primarily administered by the Clean Energy Regulator (the Regulator).
This would include registering projects, issuing certificates, maintaining the public register of
projects, undertaking compliance and enforcement, and providing oversight of the market.
This would ensure that the regulatory oversight of the CFI and the nature repair market
schemes is consistent and as streamlined as possible for landholders.
Methodology determinations
The Minister would be able to make methodology determinations (methods), which set out
requirements for undertaking a kind of biodiversity project. Examples could include
enhancing remnant vegetation and creating habitat for specific species.
A method would include, among other matters:
• the conditions that must be met for a project covered by the determination to be
registered and for a biodiversity certificate to be issued in respect of the project;
• the activities that are to be carried out or that are not to be carried out for the purposes
of the project;
• information on how the activity period for the project (if any) and the permanence
period for the project will be worked out. The permanence period would cover the life
of the project. A project would have either a 25-year or 100-year permanence period
unless a different period is provided for in the applicable method;
• conditions and requirements relating to the measurement and assessment of the
protection or enhancement of biodiversity.
A method could also impose requirements relating to reporting, notification, record-keeping
or project monitoring, as well as prohibiting specified activities.
Methods would be required to be consistent with the biodiversity integrity standards in the
Bill. The Minister would only be able to make or vary a method if the Nature Repair Market
Committee has provided advice that they consider the method (or method as varied) complies
with the biodiversity integrity standards, and if the Minister has also satisfied themselves of
the same.
The Committee's advice and the reasons for the Minister's decision would be published on
the Department's website, following mandatory public consultation on the proposed method
or method variation.
The Bill would allow the Committee to provide advice to the Minister on the prioritisation of
method development. It is intended that prioritisation would be informed by such factors as
demand from industry and the Government's environmental targets and priorities.
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Participation
All persons, including Aboriginal persons and Torres Strait Islanders, conservation groups,
corporations, governments and landholders (including farmers) would be able to participate
in the market.
Registration of biodiversity projects
The Regulator would be able to approve the registration of a biodiversity project. The
Regulator would need to be satisfied of specified criteria, including the project being covered
by a method specified in the application, that carrying out the project is likely to result in a
biodiversity certificate being issued, and that any consents required prior to registration have
been obtained. Where the applicable method requires a project plan to be submitted, the
Regulator would need to be satisfied that there is a project plan, and that implementation of
that project plan is likely to result in a biodiversity certificate being issued for the project.
Biodiversity projects would be able to be carried out on Torrens system land, Crown land or
in relevant Australian waters (both onshore and offshore). This includes lakes and rivers, as
well as marine and coastal environments. It also includes areas of land or waters that are
exclusive possession or non-exclusive possession native title areas.
Where the project area is or includes an exclusive possession native title area, the project
proponent would generally be the registered native title body corporate for that native title
area. However, the registered native title body corporate would be able to consent to another
person being the project proponent and carrying out the project in or on the native title area.
In these circumstances, consent from the registered native title body corporate (either to the
project's registration or to the project being carried out) would need to be obtained prior to
registration of the project. If the registered native title body corporate chooses, at the pre-
registration stage, to only consent to project's registration, further consent from that
registered native title body corporate to the project proponent carrying out the project would
be required before a biodiversity certificate could be issued for the project.
The Bill would allow legislative rules to define "excluded biodiversity projects", which
would be projects that could not be registered. Excluded biodiversity projects would cover
projects that have a material risk of a material adverse impact on availability of water, other
biodiversity, environmental matters, employment, the local community or Aboriginal persons
or Torres Strait Islander community or land access for agricultural production.
The registration of a biodiversity project could be varied or cancelled in certain
circumstances. These include the project not commencing within five years or the Regulator
being satisfied that the project is unlikely to result in the issuing of a biodiversity certificate.
The Bill would provide for a mandatory permanence period of 25 or 100 years unless the
method allows for a different permanence period. The permanence period would be the total
duration of the project and would be published on the public register. The activity period
would cover the period of active management to achieve the projected biodiversity outcome.
The permanence period may be longer than the activity period. For example, a project may
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have a 100-year permanence period but provide for active management for 25 years.
Methods would define the requirements for the permanence period as well as the activity
period.
Biodiversity certificates
The Bill would establish biodiversity certificates that are a form of tradeable personal
property. When a project is registered and has met any conditions and requirements,
including those stipulated under the method, the project proponent would be able to apply to
the Regulator for the issue of a biodiversity certificate. The biodiversity certificate would be
personal property. It would enable biodiversity outcomes to be owned and traded separately
from the underlying land. A biodiversity certificate would remain valid for the life of the
project, unless relinquished or cancelled.
The Regulator would be able to issue a biodiversity certificate for a registered biodiversity
project, subject to the applicant and the project meeting certain requirements. These
requirements include the proponent being a fit and proper person, and that the project is
sufficiently progressed to have resulted in, or be likely to result in, the biodiversity outcome
for the project. The powers of the Regulator and requirements set out in the Bill are designed
to ensure that biodiversity certificates have integrity and accurately reflect the environmental
improvements achieved by the project. This would enable buyers to invest in the market with
confidence.
The holder of the biodiversity certificate would be the legal owner of the certificate.
Biodiversity certificates would be personal property and transmissible by assignment, by will
and by devolution by operation of law. Biodiversity certificates would be able to be deposited
with the Regulator in circumstances where the project proponent wishes to reflect an ongoing
commitment to a project, including where other statutory requirements apply.
While biodiversity certificates would not be divisible, there would be provisions for allowing
defining of equitable interests in a certificate.
Biodiversity certificates would generally be purchased by private investors but would also be
able to be purchased by the Commonwealth. The Bill would empower the Secretary to enter
into biodiversity conservation contracts for the purchase of a biodiversity certificates on
behalf of the Commonwealth. The Bill would set out the biodiversity conservation
purchasing processes (such as tender processes), which are to be conducted by the Secretary.
Where the Commonwealth Procurement Rules are not applied, the Bill includes principles
and other matters (such as value for money, the extent and quality and importance of
biodiversity conservation that is likely to be achieved, the integrity of the process) that would
need to be applied when conducting purchasing processes.
Project reporting
Project proponents will be required to report on their projects at least every five years but
would be able to choose to report more frequently once a certificate is issued. Reports may
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also be required before a certificate is issued under requirements in the method or rules. The
legislative rules or methods would set out the requirements for project reports. It is
anticipated that reports would be required to include information about the activities
undertaken as well as the improvements in biodiversity achieve as a result of these activities.
Depending on the method, it is anticipated that some project reporting requirement could
allow for the description of biodiversity outcomes in units, for example units that represent an
amount of habitat improvement. It is also anticipated that reports publicly available via the
project register. Contracts between buyers and sellers can structure payments over the life of
a project (typically with some upfront payments to establish the project and periodic
payments for project outcomes over time).
Register
To ensure transparency, accountability and that information is publicly available, a public
register (to be named the Biodiversity Market Register) would be established under the Bill.
The register would be maintained by the Regulator. It would track biodiversity projects and
the issuance, ownership, transfer, relinquishment and cancellation of biodiversity certificates.
Legislative rules would be able specify additional information that must be listed on the
register. This could enable the register to show whether projects have been used for
regulatory purposes, to compensate for development impacts. Transparency about the
ownership and use of biodiversity certificates would promote public confidence in the
scheme and enable assessment of the overall contribution of the scheme to nature repair.
Information on the register would also allow buyers to assess and value biodiversity
certificates.
To support the development of the market and reduce the risk of greenwashing, it is intended
that the Government would establish guidance on the claims that would be able to be made in
relation to biodiversity certificates. Buyers who misrepresent or make false or misleading
claims about their contribution to nature repair may be liable under Australian consumer law.
Compliance and enforcement
The assurance and compliance requirements in the Bill would ensure the integrity of
environmental outcomes. This includes requirements for a project proponent to provide
reports about the biodiversity project. The Regulator would have the power to audit projects
and require third-party audits to be commissioned by a project proponent. The Bill would
also provide for project proponents to enter into alternative assurance agreements to verify
the progress of a project through mechanisms other than an audit. This could enable, for
instance, assurance to be conducted by new and evolving monitoring technologies where
appropriate without compromising biodiversity or other environmental standards.
The Regulator would also be empowered with information-gathering powers to monitor
general compliance or undertake more specific investigations into suspected breaches. Project
proponents would be subject to record-keeping and project monitoring requirements.
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Assurance and enforcement processes would be managed by the Regulator throughout the
project. To deter conduct that would reduce confidence in the market, and to ensure effective
enforcement, the Bill would provide for a range of powers that can be exercised by authorised
officers, including those triggered under the Regulatory Powers (Standard Provisions) Act
2014. Regulatory powers include monitoring, investigation, civil penalties, infringement
notices, enforceable undertakings, and injunctions. The Bill allows for cancellation of
biodiversity projects and relinquishment of certificates in response to specific circumstances
of non-compliance.
The Regulator would be able to make a biodiversity maintenance declaration in relation to a
specified area of land (known as a biodiversity maintenance area) where there has been non-
compliance or likely non-compliance with a relinquishment notice given by the Regulator.
The Bill would require the Regulator to publish information on the scheme and projects
through the register and other sources, including its website, to inform and engage
stakeholders and facilitate the development of the market.
CONSULTATION
The Government consulted on the design of the nature repair market in October 2022. This
included Minister led engagement events and over 50 discussions with individuals,
organisations, Aboriginal persons and Torres Strait Islander groups and Commonwealth and
State and Territory representatives. A request for submissions received over 200 responses.
An exposure draft of the Bill was released for public consultation on 23 December 2022, with
consultation closing on 3 March 2023. During the consultation period the Department
conducted over 60 engagement events including, Aboriginal persons and Torres Strait
Islander focused sessions, public information sessions and targeted meetings with individuals,
organisations and Commonwealth and State and Territory representatives. A request for
submissions received over 180 responses.
FINANCIAL IMPACT STATEMENT
The initial estimate of the cost to taxpayers of drafting, consulting on, and delivering the
market arrangements was $13.2m over two years from 2021-22 to 2022-23, although this is
sensitive to the scope of the market which is currently the subject of public consultation.
Further costs of implementation will be subject to future appropriations and decisions of
Government.
POLICY IMPACT ANALYSIS
The Policy Impact Analysis is attached to this explanatory memorandum (Attachment B).
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
The full statement of compatibility with human rights is attached to this explanatory
memorandum (Attachment A).
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NATURE REPAIR MARKET BILL 2023
NOTES ON CLAUSES
PART 1 - PRELIMINARY
GENERAL OUTLINE
1. Part 1 would deal with how the Bill is to be cited (when enacted), when its provisions
commence and the objects of the Bill. Part 1 would also set out the Bill's application to
the Crown and external Territories and contain a dictionary defining key terms used in
the Bill. Part 1 would also deal with when there is a vacancy in the office of a Nature
Repair Market Committee member and would define the phrase electronic notice
transmitted to the Regulator.
NOTES ON INDIVIDUAL CLAUSES
Clause 1 - Short title
2. Clause 1 would provide that the Bill, once enacted, may be cited as the Nature Repair
Market Act 2023.
Clause 2 - Commencement
3. The table in subclause 2(1) would have the effect that the whole of the Bill would
commence on the day after the Bill receives the Royal Assent.
4. Subclause 2(2) would clarify that any information in column 3 of the table in subclause
2(1) is not part of the Bill. Information may be inserted in this column, or edited in this
column, in any published version of the Bill. For example, the date the Bill commenced
will be inserted in this column once that has occurred.
Clause 3 - Objects of this Act
5. Clause 3 would set out the objects of the Bill.
6. The objects of the Bill would be:
• to promote the enhancement or protection of biodiversity in native species in
Australia;
• to contribute to meeting Australia's international obligations in relation to
biodiversity;
• to promote engagement and co-operation of market participants (including
Aboriginal persons and Torres Strait Islanders, governments, the community,
landholders and private enterprise) in the enhancement or protection of
biodiversity in native species in Australia;
• to support and promote the unique role of Aboriginal persons and Torres Strait
Islanders in enhancing and protecting biodiversity in native species in Australia;
and
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• to enable the use of the knowledge of Aboriginal persons and Torres Strait
Islanders related to biodiversity in native species in Australia, guided by the
owners of that knowledge; and
• to contribute to building a knowledge base and capacity related to the
enhancement or protection of biodiversity in native species in Australia.
7. The reference in the objects (and throughout the Bill) to biodiversity in native species is
intended to include diversity within and between native species as well as diversity of
ecosystems on which native species depend upon and inhabit. The purpose of referring
to native species is to clarify that projects are not to be focused on the enhancement or
protection of non-native species.
8. The list of potential market participants would be examples only; the definition of
eligible person in clause 7 would make it clear that all persons can participate in the
scheme. Other market participants could potentially include non-government
organisations, farmers, graziers, pastoralists and other primary producers, large and
small businesses, and the wider community.
Clause 4 - Simplified outline of this Act
9. Clause 4 would provide a simplified outline of the Bill. The simplified outline is
included to assist readers to understand the legislative framework that will be
established by the Bill. The outline is not intended to be comprehensive. It is intended
that readers will rely on the substantive clauses of the Bill.
Clause 5 - Crown to be bound
10. Subclause 5(1) would provide that the Bill binds the Crown in each of its capacities.
This would mean that all Australian Governments would be required to comply with the
provisions of the Bill.
11. However, in line with usual practice, subclause 5(2) would make it clear that the Crown
is not liable to a pecuniary penalty or to be prosecuted for an offence. The exception
would be the civil penalty provisions in clause 150 (complying with a relinquishment
notice) and clause 155 (carrying out declared prohibited activity in biodiversity
maintenance area), which would apply to the Crown (subclause 5(4)). This is
appropriate to ensure the objects of the Bill are able to be achieved.
12. Subclause 5(3) would clarify that the protections in clause 5 do not extend to an
authority of the Crown.
Clause 6 - Extension to external Territories
13. Clause 6 would have the effect that the Bill would apply to all external Territories.
Clause 7 - Definitions
14. Clause 7 would define key terms used in the Bill. This clause would also include some
'signpost' definitions that refer readers to the clauses of the Bill in which terms are
substantively defined. `
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15. Some key concepts in the Bill would be biodiversity, project, biodiversity project and
registered biodiversity project. These concepts are important because they define the
scope of the scheme established by the Bill; biodiversity certificates would only be able
to be issued (under subclause 70(2)) in respect of a registered biodiversity project.
Biodiversity would be defined to mean the variability among living organisms from all
sources (including terrestrial, marine and other aquatic ecosystems and the ecological
complexes of which they are part) and includes diversity within species and between
species, and diversity of ecosystems. This is consistent with the Convention on
Biological Diversity and is intended to include coral and other similar life forms.
16. A project would be defined to include a set of activities. A biodiversity project would
mean a project, carried out in a particular area, that is designed to enhance or protect
biodiversity in native species (whether the effect on biodiversity occurs within or
outside the area). The reference to biodiversity in native species is intended to include
diversity within and between native species as well as diversity of ecosystems on which
native species depend upon and inhabit. The purpose of referring to native species is to
clarify that projects are not to be focused on the enhancement or protection of non-
native species. Enhancement or protection may include, but would not be limited to,
conservation, restoration, maintenance, threat abatement, fire management, weed
management, pest management, regeneration, rehabilitation, remediation and habitat
augmentation. Specific examples of potential biodiversity projects under the scheme
would be reviving wetlands and mangroves, replanting koala habitat, reviving a nature
corridor, planting native vegetation, restoring a damaged waterway, or managing pests
and weeds.
17. A registered biodiversity project would mean a biodiversity project that is registered on
the Register (other than a former registered biodiversity project in relation to which
information is set out in the Register under rules made for the purpose of subclause
162(5)).
18. Additional concepts that are related to registered biodiversity projects would be
biodiversity outcome and project plan. A biodiversity outcome, in relation to a
biodiversity project, would mean the enhancement or protection of biodiversity that the
project is designed to achieve. It is intended that biodiversity outcomes would be
informed by science. Each project would have its own biodiversity outcome, depending
on the purpose and design of the project, however the intent would need to be consistent
with facilitating the improvement in native species and their associated ecosystems. A
project plan, in relation to a biodiversity project, would mean a plan that sets out how
the project is intended to be carried out and achieve its biodiversity outcome, that is
consistent with the methodology determination that covers (or is proposed to cover) the
project, that includes any information specified in the rules or the methodology
determination that covers the project, and that complies with any requirements specified
in the rules or the methodology determination that covers the project.
19. The concepts of eligible person and project proponent are relevant to who carries out the
project. An eligible person would be able to apply for approval to register a biodiversity
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project under the Bill. An eligible person would mean any of an individual, a body
corporate, a trust, a corporation sole, a body politic or a local governing body. The
project proponent, in relation to a registered biodiversity project, would mean the
eligible person who is recorded in the Register as the project proponent or (where there
are multiple project proponents for a project) each of the eligible persons who are
recorded in the Register as a project proponent.
20. The concepts of area, project area, native title area, exclusive possession native title
area, Torrens system land, Crown land, Australia and Australian waters would be
relevant to where projects are carried out.
21. A project area, in relation to a biodiversity project or a registered project under a related
scheme, would mean the area, or areas, on or in which the project has been, is being or
is to be carried out. An area would cover an area of land, an area of Australian waters or
an area that is a combination of land and Australian waters. Australian waters would
mean the territorial sea of Australia or of each external Territory, the waters of the sea
on the landward side of the territorial sea of Australia or of each external territory, or
inland waters. Australia, when used in the geographical sense, would include the
external territories. This means the project area for a biodiversity project would be able
to be located in or on mainland Australia or any of the external territories, in the inland
waters of mainland Australia or any of the external territories, or offshore from
mainland Australia or any of the external territories, up to 12 nautical miles from the
low water mark.
22. A project area under the Bill may include a native title area (including an exclusive
possession native title area). Where this is the case, specific consent requirements
would apply (see paragraph 15(6)(b) and clause 18A of the Bill). An area would be a
native title area if there is an entry on the National Native Title Register specifying that
native title exists in relation to the area. A native title area may be exclusive possession
or non-exclusive possession - the consent requirement in paragraph 15(6)(b) and clause
18A would apply to both kinds of native title areas. However, additional requirements in
the Bill would apply in relation to an exclusive possession native title area, which would
be a native title area where the native title confers a right of exclusive possession over
the area.
23. A project area under the Bill would be required to be in or on at least one of Torrens
system land, Crown land or Australian waters (see subclause 15(5)). Land would be
Torrens system land if the title to the land is registered under a Torrens system of
registration. Crown land would mean land that is the property of the Commonwealth, a
State or a Territory or a Commonwealth, State or Territory statutory authority. Clause 7
would also clarify that, for the purposes of the definition of Crown land, it is immaterial
whether the land is subject to a lease or a licence, whether the land is covered by a
reservation, proclamation, dedication, condition, permission, or authority (made or
conferred by the Commonwealth, the State or the Territory), whether the land is covered
by the making, amendment or repeal of legislation of the Commonwealth, the State or
the Territory under which the whole or a part of the land is to be used for a public
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purpose or public purposes, whether the land is held on trust for the benefit of another
person, or whether the land is subject to native title.
24. Another important term is the Regulator, who would administer the Bill. The Regulator
would mean the Clean Energy Regulator, established by the Clean Energy Regulator
Act 2011 (CER Act).
25. Some important signpost definitions in clause 7 would be Register (which would mean
the Biodiversity Market Register kept by the Regulator under subclause 161(1)), Nature
Repair Market Committee (which would mean the committee established by clause
194), methodology determination (which would mean a determination under subclause
45(1)), relinquishment notice (which would mean a notice given by the Regulator under
any of subclauses 144(2), 146(2), 147(2) and 147A(2)), and biodiversity integrity
standards (which would be set out in clause 57).
26. The holder of a biodiversity certificate would mean the person recorded in the Register
as the holder of the certificate.
27. References in the Bill to this Act would (except in relation to clauses 1, 2, 45 and 237)
include the provisions of a legislative instrument made under the Bill, and sections
134.1, 134.2, 135.1, 135.2, 135.4, 136.1, 137.1 and 137.2 of Schedule 1 to the Criminal
Code Act 1995 (the Criminal Code), in so far as those sections relate to the Bill or a
legislative instrument made under the Bill.
Clause 8 - Vacancy in the office of a Nature Repair Market Committee member
28. Clause 8 would clarify that, for the purposes of a reference in this Bill to a vacancy in
the office of a Nature Repair Market Committee member, or a reference in the Acts
Interpretation Act 1901 to a vacancy in the membership of a body, there are 4 offices of
Nature Repair Market Committee member, in addition to the Chair.
29. This means there would be one or more vacancies in the office of a Nature Repair
Market Committee member whenever there are less than 4 appointed members in
addition to the Chair.
Clause 9 - Electronic notice transmitted to the Regulator
30. Clause 9 would clarify the meaning of the phrase electronic notice transmitted to the
Regulator for the purposes of the Bill. This phrase is relevant to clause 152 of the Bill,
which allows a person who is the holder of a biodiversity certificate to relinquish that
certificate by electronic notice transmitted to the Regulator.
31. The effect of clause 9 would be that such notices would need to be transmitted to the
Regulator by means of electronic communication, in accordance with any particular
information technology requirements required by the Regulator.
32. The notice would also be required to comply with any rules made for the purpose of
subclause 9(2). Subclause 9(2) would allow the rules to make provision for or in relation
to the security and authenticity of notices transmitted to the Regulator by means of
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electronic communication. Without limiting the rules that could be made for the
purposes of subclause 9(2), such rules would be able to deal with encryption and
authentication of identity (subclauses 9(3) and (4)).
33. It is appropriate for the requirements concerning electronic transmission of notices
(including matters relating to the security and authenticity of such notices) to be
prescribed in the rules, as technology and security-related threats are likely to change
and evolve over time. Including these requirements in the rules would allow the
Minister to quickly adapt to changes and emerging threats to ensure the integrity of this
aspect of the regulatory regime.
34. Subclause 9(5) would clarify that clause 9 does not, by implication, limit the regulations
that may be made under the Electronic Transactions Act 1999. This provision is
included to remove any doubt concerning the scope of clause 9.
PART 2 - REGISTERED BIODIVERSITY PROJECTS
GENERAL OUTLINE
35. Part 2 of the Bill would provide for the registration of biodiversity projects. A project
proponent would be able to apply to the Regulator for the registration of a biodiversity
project. The Regulator would need to be satisfied that certain requirements have been
met before approving the registration of a biodiversity project, and the registration may
be subject to certain conditions. This Part would also provide for the variation or
cancellation of a biodiversity project's registration. This Part would also provide for
excluded biodiversity projects that are not eligible to be registered, and for the duration
of the permanence period for a project.
NOTES ON INDIVIDUAL CLAUSES
Division 1 - Introduction
Clause 10 - Simplified outline of this Part
36. Clause 10 would provide a simplified outline of Part 2 of the Bill. The outline is not
intended to be comprehensive and has been included to assist readers to understand the
substantive provisions of Part 2, rather than to replace these provisions. It is intended
that readers will rely on the substantive clauses of Part 2.
Division 2 - Registration of biodiversity project
Clause 11 - Application for approval of registration of biodiversity project
37. Clause 11 would provide for an eligible person to apply to the Regulator to approve the
registration of a biodiversity project on the Register.
38. The term eligible person would be defined in clause 7 of the Bill as covering an
individual, a body corporate (including a registered native title body corporate), a trust,
a corporation sole, a body politic and a local governing body. This means that land
holders, including native title holders (both exclusive possession and non-exclusive
possession), would be able to apply to register projects on their land. A person would
also be able to apply to register a project on land that does not belong to them; however,
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in such circumstances, certain consents or approvals would be required to ensure that
the applicant has the legal right to carry out the project (see clauses 15, 17, 18 and 18A).
39. Clause 7 would also define the terms biodiversity and biodiversity project. Biodiversity
would mean the variability among living organisms from all sources (including
terrestrial, marine and other aquatic ecosystems and the ecological complexes of which
they are part) and includes diversity without species and between species, and diversity
of ecosystems. A biodiversity project would mean a project, carried out in a particular
area, that is designed to enhance or protect biodiversity in native species (whether the
effect on biodiversity occurs within or outside the area). As noted above, this could
include projects for species, habitat or ecosystem management, restoration,
regeneration, rehabilitation, remediation and habitat augmentation.
40. The Register would be established by Part 15 of the Bill and would set out details of
each registered biodiversity project.
41. The first note following subclause 11(1) would explain that the applicant would be
registered as the project proponent, or one of the project proponents, for the project.
This would be a requirement of paragraph 15(4)(h) of the Bill (criteria for approval of
registration).
42. The second note following subclause 11(1) would explain that the Regulator's functions
would include providing advice and assistance in relation to the making of applications
and would refer the reader to clause 219 of the Bill.
43. Subclause 11(2) would have the effect of preventing any applications under clause 11
from being made until a day determined by the Minister by legislative instrument.
Allowing the Minister to set the day on which applications open would ensure that there
is sufficient time for the key implementation-related elements of the proposed scheme to
be established before applications can be considered. This would include developing
resources, systems and processes within the responsibility of the Regulator, the
establishment of the Nature Repair Market Committee, the development of biodiversity
assessment instruments (with which methodology determinations must comply) and
methodology determinations (with which projects must comply), and the creation of
information resources for scheme participants.
Clause 12 - Form of application
44. Clause 12 would set out the requirements of an application made under clause 11 for the
Regulator to approve the registration of a biodiversity project.
45. Subclause 12(1) would require an application made under clause 11 to be in writing and
to be in a form approved, in writing, by the Regulator.
46. Subclause 12(2) would set out what must be included in the application (in addition to
any requirements in the approved form itself). An application would be required to:
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• specify the proposed project area. Clause 7 of the Bill would define project area,
in relation to a biodiversity project, to mean the area, or areas, on or in which the
project has been, is being, or is to be carried out;
• if the applicant is not to be the only project proponent for the project - specify the
eligible persons who are proposed to be the project proponents, along with the
applicant;
• specify the methodology determination that is proposed to cover the project;
• specify the proposed activity period for the project (if any). The activity period is
intended to cover the period that the proposed actions and activities that make up
the project would be carried out, in order to achieve the intended biodiversity
outcome. The length of the activity period would be required to be worked out in
accordance with the methodology determination that covers the project;
• specify the proposed permanence period for the project. The permanence period is
intended to cover the life of the project. Where the project has an activity period,
the permanence period would be made up of both the activity period and the
period following the activity period that would generally consist of monitoring
activities to continue protection of the relevant biodiversity and ensure that there
is no significant reversal in biodiversity outcome, preventing or responding to
negative outcomes, and meeting any requirements set out in the methodology.
i. The applicant would be required to choose a 25-year or 100-year
permanence period for the project, unless the applicable methodology
determination provides for a different permanence period. Requirements
about the length of permanence period (including the Regulator's power to
extend the length of the permanence period for a project) would be set out
in clause 34 of the Bill;
• include any other information required by the rules or the methodology
determination that covers the project.
47. Subclause 12(3) would set out the documents that would be required to accompany the
application. An application under clause 11 would be required to be accompanied by:
• a prescribed audit report prepared by a registered greenhouse and energy auditor -
but only if required by the rules or the methodology determination that covers the
project. The rules would set out the requirements of such a report (including the
content). A registered greenhouse and energy auditor is appointed as such under
the National Greenhouse and Energy Reporting Act 2007 (NGER Act);
• if there are to be project proponents for the project other than the applicant -
evidence that each project proponent consents to being a project proponent for the
project. Such evidence may be in the form of a statutory declaration or other
document signed by the proposed project proponent;
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• if a registered indigenous land use agreement is relevant to the Regulator's
decision on the application - a copy of the relevant parts of the agreement. Clause
7 of the Bill would define a registered indigenous land use agreement to mean an
indigenous land use agreement the details of which are entered on the Register of
Indigenous Land Use Agreements (within the meaning of the Native Title Act
1993 (Native Title Act));
• a project plan for the project - but only if the methodology determination that
covers the project requires that the project have a project plan.
i. Clause 7 of the Bill would require a project plan, in relation to a
biodiversity project, to set out how the project is intended to be carried out
and how the project is intended to achieve the biodiversity outcome for the
project. A project plan would also be required to be consistent with the
methodology determination that covers the project, and include such
information, and comply with such requirements, as are specified in the
rules or the methodology determination.
ii. Project plans are an integrity measure, designed to allow a more accurate
assessment by the Regulator of the appropriateness of a project, and
therefore increase the likelihood that a biodiversity project will only be
approved for registration if it is likely to achieve the relevant biodiversity
outcome. Project plans would enable the requirements of, and options in,
the methodology determination that covers the project to be tailored to
regional and site-specific factors to ensure that management activities are
appropriate and support adaptive management. The extent to which a
project plan is implemented would also be relevant to the decision whether
to issue a biodiversity certificate for the project (see clause 70);
• any additional documents specified in either the rules or the methodology
determination that covers the project;
• the fee (if any) specified in the rules.
48. Subclause 12(4) would have the effect that the approved application form would be able
to require statements made in an application under clause 11 to be verified by statutory
declaration.
49. Subclause 12(5) would clarify that an application fee specified in the rules must not
amount to taxation. This means that the amount of any fee specified for an application
under clause 11 must approximately reflect the cost to the Regulator of assessing the
application.
50. Subclauses 12(6) and (7) provide an additional requirement for applications under clause
11 that are made:
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• by a person who is a native title holder for an exclusive possession native title
area; and
• where the proposed project area consists of, or includes, the exclusive possession
native title area.
51. In these circumstances, the applicant would be required to specify the registered native
title body corporate for that native title area as a project proponent for the project (along
with the applicant) - unless the registered native title body corporate does not consent to
being a project proponent.
52. In other words, where the exclusive possession native title holders are doing the project,
the registered native title body corporate would generally be specified as a project
proponent for the project. The purpose of this requirement is to avoid, where possible,
having to apply the requirements of the Bill to the common law native title holders,
which may be a large, imprecise and changing group of persons. Instead, the intention is
that the registered native title body corporate would act on behalf of the native title
owners for the purposes of the Bill.
53. This would not, however, prevent another person (who is not the native title holder or
the registered native title body corporate) from applying to register a project on a project
area that consists of, or includes, an exclusive possession native title area - or from
being specified as a project proponent for such a project. However, registering such a
project would require the consent of the registered native title body corporate for the
area (on behalf of the native title holders) (see clause 15).
Clause 13 - Further information
54. Clause 13 would allow the Regulator by written notice, to require the person who has
applied for approval of the registration of a biodiversity project (the applicant) to
provide further information in connection with the application within a specified period.
The period within which the information is required to be provided must be specified in
the notice.
55. Subclause 13(2) would make it clear that if the applicant does not provide the required
further information in the period specified in the notice, the Regulator may refuse to
consider, or to take any action or further action in relation to, the application.
56. The purpose of this provision is to ensure that decisions on applications for approval of
the registration of a biodiversity project are based on all relevant information.
Clause 14 - Withdrawal of application
57. Clause 14 would clarify that an applicant is able to withdraw their application for
approval of the registration of a biodiversity project at any time before the Regulator
makes a decision on the application. If the applicant withdraws their application, they
would still be able to make a fresh application at a later date.
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58. Subclause 14(3) would require the Regulator, on behalf of the Commonwealth, to refund
any application fee the applicant has paid in respect of an application for approval of the
registration of a biodiversity project that has been withdrawn.
59. This provision is intended to recognise that it will normally be preferable for the
Regulator to advise an applicant of substantive deficiencies in their application and
allow them to withdraw and resubmit the application without cost, rather than rejecting
the application for not meeting the legislative requirements.
Clause 15 - Approval of registration of biodiversity project
60. Clause 15 would deal with the Regulator's decision whether to approve the registration
of a biodiversity project (on application by an eligible person under clause 11). A
registered biodiversity project would be recorded in the Register (see part 15).
61. Subclause 15(2) would require the Regulator, after considering an application made
under clause 11, to decide whether to approve or refuse to approve the registration of
the biodiversity project that is the subject of the application.
62. A decision made under subclause 15(2) to approve, or refuse to approve, the registration
of a biodiversity project would be a reviewable decision. The note following subclause
15(2) directs the reader to Part 20 of the Bill, which deals with reviewable decisions.
63. Subclause 15(3) would require the Regulator to give written notice of a decision under
subclause 15(2) to the applicant.
64. The Regulator would also be required to give written notice of the decision to approve
the project's registration to the relevant land registration official. The relevant land
registration official would be the Registrar of Titles or other proper officer of the State
or Territory in which the project is wholly or partly situated (see clause 7). The purpose
of requiring the Regulator to inform the relevant land registration official of the
registration of the biodiversity project is so that the official would be able to place a
notification on the relevant land title that would alert anyone taking an interest in the
project land that it is subject to obligations under this Bill.
65. Subclause 15(4) would set out the criteria of which the Regulator must be satisfied in
order to approve the registration of a biodiversity project on the Register. The Regulator
would only be able to approve the registration of a biodiversity process if satisfied that:
• the project is being, or is to be, carried on in Australia. Clause 7 of the Bill would
make it clear that Australia, when used in a geographical sense, includes the
external territories. The term Australia would also include Australia's coastal sea
which, in turn, covers Australia's territorial sea, the seabed and subsoil beneath it
and the airspace over it (see definition of Australia in section 2B of the Acts
Interpretation Act 1901 (AI Act);
i. This means biodiversity projects located in mainland Australia, any of the
external territories or in Australia's coastal sea (or any combination
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thereof) can be registered for the purposes of the Bill, provided the project
meets all other relevant requirements;
• the project is covered by the methodology determination that is specified in the
application;
• the activity period for the project (if any) has been worked out in accordance with
the applicable methodology determination;
• the permanence period for the project complies with clause 34. This means the
permanence period specified in the application must be either 25 years or 100
years, or another period worked out in accordance with the methodology
determination that covers the project;
• the project meets any conditions set out in the methodology determination that
covers the project;
• if the applicable methodology determination requires a project plan for the project
- there is a project plan for the project, and that implementation of the project plan
is likely to result in a biodiversity certificate being issued in respect of the project;
i. this criterion is a key integrity measure for projects that require a project
plan, as it would ensure that projects are only registered if they are likely
to result in a biodiversity certificate;
ii. to issue a biodiversity certificate in respect of a project, the Regulator
would need to be satisfied that the project is sufficiently progressed to
have resulted in, or be likely to result in, the biodiversity outcome for the
project (and all other relevant requirements are met) (see paragraph
70(2)(f));
• if the applicable methodology determination does not require a project plan for the
project - carrying out the project is likely to result in a biodiversity certificate
being issued in respect of the project;
i. this criterion is a key integrity measure for projects that do not require a
project plan. Similar to the equivalent requirement for projects that require
a project plan, this criterion would ensure that projects are only registered
if they are likely to result in a biodiversity certificate;
• the applicant is to be registered as the project proponent (or as one of the project
proponents) for the project. The purpose of this requirement is to ensure that the
applicant is responsible for meeting the requirements of the Bill for the project on
an ongoing basis;
• the proposed project proponent (or, in the case of multiple project proponents, that
each of the proposed project proponents) is an eligible person. The term eligible
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person would be defined in clause 7 of the Bill as covering an individual, a body
corporate (including a registered native title body corporate), a trust, a corporation
sole, a body politic or a local governing body;
• the proposed project proponent (or, in the case of multiple project proponents, that
each of the proposed project proponents) is a fit and proper person. The fit and
proper person test would be set out in Part 8 of the Bill;
• the project area meets the requirements set out in subclause 15(5). These
requirements are described below in detail;
• the project area does not consist of, or include, a biodiversity maintenance area or
part of a biodiversity maintenance area. A biodiversity maintenance area is an
area over which a biodiversity maintenance declaration (under clause 154) is in
effect;
• the project area meets the requirements set out in subclause 15(6). These
requirements are set out below in detail;
• the project meets any additional eligibility criteria prescribed in the rules. It is
appropriate that the rules be able to prescribe additional eligibility criteria to allow
the scheme to tailor the criteria to different kinds of projects (where appropriate)
and to be able to respond to changing circumstances (including technological
advances and changes in the environment);
• the project is not an excluded biodiversity project. Clause 33 of the Bill would
provide for the rules to prescribe kinds of biodiversity projects that are excluded
biodiversity projects and therefore cannot be registered.
66. The first note following subclause 15(4) would explain that methodology determinations
are made under clause 45 of the Bill. The second note following subclause 15(4) would
direct the reader to clause 33 of the Bill for the meaning of excluded biodiversity
projects. The third note following subclause 15(4) would direct the reader to clauses 97-
99A for the fit and proper person test.
67. Subclause 15(5) would require the project area for a registered biodiversity project to be
(or to be any combination of) Torrens system land, Crown land or Australian waters,
and to not be excluded by rules made for the purposes of that provision. Under clause 7,
land would be Torrens system land if the title to the land is registered under a Torrens
system of registration. Clause 7 would also define Crown land as land that is the
property of the Commonwealth, a State or a Territory, or of a statutory authority of the
Commonwealth, a State or a Territory.
68. The purpose of limiting the eligible land to Torrens system land and Crown land is to
ensure that ownership of the land on which the project is situated is clear, unambiguous
and can be tracked easily. Similarly, notations would be able to be made on the relevant
22
land title so that persons with future interests in the land are aware of the project and
any obligations it confers on the land holder.
69. Native title land will generally be either Crown land or Torrens system land. In addition,
most categories of land rights land will be either Crown land or Torrens system land.
Accordingly, biodiversity projects that are located on native title land (both exclusive
possession and non-exclusive possession) or most kinds of land rights land would be
able to be registered for the purposes of the Bill. Persons who wish to register a project
on land that is not Torrens System land or Crown land (such as old system title and
some kinds of land rights land) would be able to register their land under the Torrens
system of the relevant State or Territory in which the land is situated. Once registered as
Torrens system land, projects on that land would be able to be registered under the Bill.
70. Clause 7 of the Bill would also define the term Australian waters to cover the territorial
sea of Australia and of each external territory, the waters on the landward side of the
territorial sea of Australia and of each external territory, and inland waters (including
lakes, rivers, ponds, estuaries). It is intended that marine biodiversity projects in any of
these kinds of waters (including waters that are part of a native title area) would be able
to be registered for the purposes of the Bill.
71. Subclause 15(6) would impose additional requirements that must be satisfied before the
Regulator can approve the registration of certain biodiversity projects. These
requirements are directed at ensuring that the project proponent has the legal right to
carry out the project (subject to obtaining necessary Commonwealth, State or Territory
regulatory approvals), by requiring consent to do so from the owner or holder of the
relevant land.
72. Paragraph 15(6)(a) deals with Torrens system land. The Regulator would only be able to
approve the registration of a biodiversity project located on Torrens system land if one
of the following criteria is met:
• the project proponent (or, in the case of multiple project proponents, a project
proponent) holds an estate in fee simple in the land (ie the proponent owns the
relevant land, whether or not that ownership is subject to a mortgage);
• the project proponent (or, in the case of multiple project proponents, a project
proponent) holds a lease over the relevant land and the lease is consistent with the
project being carried out on the land;
• a person who holds an estate in fee simple in the land has consented to the project
being carried out on the land by the proposed project proponent as a registered
biodiversity project;
• the project proponent (or, in the case of multiple project proponents, a project
proponent) holds another legal estate or interest in the land that is prescribed by
the rules;
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• a person who holds another legal estate or interest in the land that is prescribed by
the rules has consented to the project being carried out on the land by the
proposed project proponent as a registered biodiversity project.
73. This would allow the Minister to, in appropriate circumstances, require the consent of
other (additional) eligible interest holders prior to registration, including persons with
certain indigenous-related legal interests (other than native title rights, which would be
covered by paragraph 15(6)(b)).
74. The purpose of these requirements is to ensure that the owner of the relevant Torrens
system land either is the project proponent, or has consented to the project being carried
out on their land as a registered biodiversity project. This would prevent projects being
registered on a person's land without their knowledge or consent, which could
undermine the emerging market.
75. Paragraph 15(6)(b) would impose a similar consent requirement for projects that have a
project area consisting of, or including, a native title area. Clause 7 of the Bill would
define an area to be a native title area if there is an entry on the National Native Title
Register (within the meaning of the Native Title Act) specifying that native title exists
in relation to the area.
76. Under paragraph 15(6)(b), the Regulator would only be able to approve the registration
of a biodiversity project that is situated on, or that includes, a native title area, and where
there is a registered native title body corporate for the native title area, if one of the
following criteria is met:
• the project proponent (or, in the case of multiple project proponents, a project
proponent) is the registered native title body corporate; or
• the registered native title body corporate has consented to the proposed project
proponent carrying out the project on or in the native title area as a registered
biodiversity project; or
• the registered native title body corporate has consented to the registration of the
project.
77. The requirement at paragraph 15(6)(b) would apply to both exclusive possession native
title areas and non-exclusive possession native title areas. In practice, this means that all
biodiversity projects to be carried out on native title land or waters would need either to
be undertaken by the relevant native title holders, or would require the consent of the
relevant native title holders before the project could be registered. This would ensure
that native title holders have the final say on whether, and what kind of, biodiversity
projects are carried out on or in native title areas.
78. The consent provided by the registered native title body corporate at this stage may be to
the project proponent carrying out of the project as a registered biodiversity project, or
just to the registration of the project. This would be up to the registered native title body
24
corporate. If the registered native title body corporate consents, prior to registration, to
the proponent carrying out the project as a registered biodiversity project, the project
proponent would not be required to obtain any further consent from the registered native
title body corporate. In contrast, if the registered native title body corporate only
consents to the project being registered, the project's registration would be subject to a
condition that the project proponent obtain consent from the registered native title body
corporate to the proponent carrying out the project as a registered biodiversity project
prior to applying for a biodiversity certificate for the project (see clauses 18A and 67).
79. Subclause 15(7) would set out the matters that must be included in the approval notice if
the Regulator approves the registration of a biodiversity project. The approval notice
would be required to:
• set out, in accordance with the rules, the project area;
• set out the project proponent or project proponents for the project;
• set out the applicable methodology determination (that covers the project);
• set out the activity period (if any) and the permanence period for the project;
• set out any conditions under clauses 17, 18 or 18A (concerning, respectively,
obtaining required regulatory approvals and consents) that the project's
registration is subject to;
• set out such attributes of the project as are specified by the rules;
• set out any other matters required by the rules.
80. Subclause 15(8) would require the Regulator to take all reasonable steps to ensure that a
decision is made on an application to register a biodiversity project within 90 days after
the application is made, or 90 days after requested further information has been given to
the Regulator.
81. Subclause 15(9) would have the effect that the registration of a biodiversity project takes
effect the day after the approval notice is given to the applicant.
Clause 16 - Suspension of processing of applications for registrations of biodiversity
projects
82. Clause 16 would allow the Minister to make a legislative instrument ordering the
Regulator to cease considering (and not make a decision on) existing applications to
register a biodiversity project for a specified period, where the project proposes to be
covered by a specified methodology determination (subclause 16(1)). The period
specified would need to be 12 months or less, commencing when the order commences
(subclause 16(2)).
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83. However, the Minister would only be able to make a legislative instrument under clause
16 if the Nature Repair Market Committee has advised the Minister that the Committee
is satisfied there is reasonable evidence that the methodology determination in question
does not comply with one or more of the biodiversity integrity standards (subclause
16(3)). The biodiversity integrity standards would be set out in clause 57 of the Bill.
84. This is an important integrity measure, as it would prevent the registration of projects
that would be inconsistent with the biodiversity integrity standards. The biodiversity
integrity standards would form an important test for methodology determinations,
providing assurance to the market that methodology determinations would only provide
for projects that deliver biodiversity outcomes, and that information about those
outcomes could be relied upon by those who are purchasing biodiversity certificates.
Where there is evidence that a particular methodology determination no longer meets
the biodiversity integrity standards, allowing projects to continue to be registered in
reliance on that determination would undermine the market and may also result in harm
to the biodiversity that is intended to be protected or enhanced by the project. In such
circumstances, it would be appropriate for the Minister to temporarily prevent the
Regulator from continuing to assess applications against that methodology
determination, until the methodology determination can be varied (to fix the relevant
issue) or revoked (in accordance with the requirements at Part 4 of the Bill).
85. The Nature Repair Market Committee would be able to give the Minister such advice on
its own initiative, or at the Minister's request (subclause 16(4)). Subclause 16(5) would
require the Department to publish any such advice received on its website (whether or
not the Minister follows the advice by making a legislative instrument under clause 16).
86. Subclause 16(6) would clarify that the requirements in subdivisions D and E of Division
2 of Part 4 would not apply to the Committee's advice for the purposes of clause 16.
Subdivisions D and E would set requirements that must be complied with by the
Committee when providing advice on the making, varying or revoking of methodology
determinations (including public consultation). These requirements are not appropriate
in the context of a legislative instrument made under clause 16, which is likely to be an
interim measure while the methodology determination is either revoked or varied to
address the issues in question.
87. The Regulator would be required to comply with an order made in a legislative
instrument under subclause 16(1) (subclause 16(7)). Where such an order is in effect,
the timing requirements for making a decision on an application (set out in clause 15(8))
would not apply to applications that fall within the order.
Clause 17 - Registration may be subject to condition about obtaining regulatory
approvals
88. Clause 17 would apply if the Regulator decides to approve the registration of a
biodiversity project but is not satisfied that all regulatory approvals have been obtained
for the project.
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89. In these circumstances, the Regulator would be able to approve the registration of the
biodiversity project, but would be required to impose a condition on the registration to
the effect that a biodiversity certificate is not to be issued in respect of the project until
all regulatory approvals are obtained for the project.
90. This condition would be required to be set out in the approval notice given to the
applicant under subclause 15(3) (see subclause 17(2)).
91. This is intended to allow project proponents some certainty regarding the registration of
their project, before going to the expense of obtaining the required regulatory approvals.
It would also allow the proponent additional time to obtain regulatory approvals for the
project, while informing potential purchasers of the fact that there are outstanding
regulatory approvals needed for the project to be legally carried out. The outstanding
regulatory approvals may be requirements under Commonwealth, State, Territory or
local government laws in relation to, for example, land use and development, the
environment or water. For example, a project (including a marine project) may require a
licence or approval under state environmental laws before it can legally proceed.
Required regulatory approvals may also include approvals associated with undertaking
protects on public land (including Indigenous Protected Areas and areas in the reserve
system).
92. Once the necessary approvals have been obtained, the project proponent would be able
to apply to the Regulator (under rules made for the purposes of clause 21) to vary the
project's registration to remove the condition, on the basis that the condition has been
met.
93. In contrast, if the project proponent does not obtain all necessary regulatory approvals
within 5 years of the project's registration, the Regulator may be able to unilaterally
cancel the project's registration, under rules made for the purpose of clause 26 (on the
basis that a condition of registration has not been met) or, potentially, rules made for the
purpose of clause 27 (on the basis that the project has not commenced). This would
ensure that projects do not stay on the Register for many years without the necessary
regulatory approvals being obtained.
Clause 18 - Registration may be subject to condition about obtaining consents from
eligible interest holders
94. Clause 18 would have the effect that the Regulator would be able to conditionally
approve the registration of a biodiversity project under clause 15 even if satisfied that
not all persons who are eligible interest holders for the project area (or a part of the
project area) have yet consented to the application being made. Part 7 of the Bill would
deal with who is an eligible interest holder for an area of land.
95. In these circumstances, the Regulator would be required to impose a condition on the
registration to the effect that a biodiversity certificate is not to be issued in respect of the
project until the written consent of all eligible interest holders has been obtained. This
condition would be required to be set out in the approval notice given to the applicant
under subclause 15(3) (see subclause 18(2)).
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96. This means that, while the project is able to be registered without all eligible interest
holder consents, it would not be eligible to progress to the biodiversity certificate stage
(and thus enter the market) until all such consents have been obtained.
97. Furthermore, rules made for the purposes of clause 26 of the Bill could allow the
Regulator to unilaterally cancel the project's registration if any outstanding eligible
interest holder consents have not been obtained within five years after registration.
These measures are intended to incentivise project proponents to take the necessary
actions to obtain all required eligible interest consents as early as possible.
98. Subclauses 18(3) to (5) would have the combined effect that the consent of an eligible
interest holder would be required to be in a form approved, in writing, by the Regulator
or, alternatively, to be set out in a registered indigenous land use agreement.
99. The condition in clause 18 would not apply to consent from eligible interest holders who
fall within subclause 15(6) of the Bill.
100. Consent from persons covered by paragraph 15(6)(a) (such as owners of the project
area) to the project being carried out on their land would need to be obtained prior to
registration (and would include consent to the application for registration being made).
This is to ensure that projects are not registered on land belonging to a person without
their knowledge or consent.
101. Consent from persons covered by paragraph 15(6)(b) (registered native title body
corporates) would be covered by clause 18A of the Bill.
Clause 18A - Registration may be subject to condition about obtaining consent from
registered native title body corporate
102. Clause 18A would have the effect that the Regulator would be able to conditionally
approve, under clause 15, the registration of a biodiversity project that is to be located
(wholly or partly) on a native title area even if the registered native title body corporate
for the native title area has not yet consented, in writing, to the project being carried out
by the project proponent on or in the native title area as a registered biodiversity project.
103. Under paragraph 15(6)(b), the registered native title body corporate may, prior to
registration, consent to the proposed project proponent carrying out the project as a
registered biodiversity project, or just consent to the registration of the project. This
would be up to the registered native title body corporate. If written consent to the
carrying out of the project is provided prior to registration, the project proponent would
not be required to obtain any further consent from the registered native title body
corporate - and clause 18A would not apply.
104. In contrast, if the registered native title body corporate chooses to only consent, at the
registration stage, to the project being registered, clause 18A would apply. In these
circumstances clause 18A would allow the Regulator to approve the project's
registration subject to a condition to the effect that a biodiversity certificate is not to be
28
issued in respect of the project until written consent is obtained from the registered
native title body corporate to the project proponent carrying out the project in or on the
native title area as a registered biodiversity project (see subclause 18A(2)).
105. This means that, while the project is able to be registered without consent from the
registered native title body corporate to the carrying out of the project, it would not be
eligible to progress to the biodiversity certificate stage (and thus enter the market) until
such consent has been obtained.
106. Furthermore, rules made for the purposes of clause 26 of the Bill could allow the
Regulator to unilaterally cancel the project's registration if consent from the registered
native title body corporate to the carrying out of the project has not been obtained within
five years after registration. These measures are intended to incentivise project
proponents to take the necessary actions to obtain all required consents as early as
possible.
107. Subclauses 18A(3) to (5) would have the combined effect that the consent of a
registered native title body corporate would be required to be in a form approved, in
writing, by the Regulator or, alternatively, to be set out in a registered indigenous land
use agreement.
Division 3 - Variation of registration
Clause 19 - Voluntary variation of registration of biodiversity project - change in
identity of project proponent
108. Subclause 19(1) would allow the rules to make provision for and in relation to
empowering the Regulator to vary the registration of a registered biodiversity project to
change the identity of the project proponent (or proponents).
109. Such a variation may be to add an additional eligible person as a project proponent for
the project, or to remove a project proponent from the project (so long as they are not
the only project proponent for the project).
110. Rules made for the purposes of subclause 19(1) would only be able to empower the
Regulator to vary the registration of a biodiversity project on application from the
project proponent (or, in the case of multiple project proponents, a project proponent)
(subclause 19(2)). In other words, rules made for the purposes of subclause 19(1) would
not be able to empower the Regulator to unilaterally vary a project's registration.
111. The rules would also have to provide for the following additional requirements to be
met:
• if the proposed variation involves adding an eligible person to be a project
proponent for the project - the Regulator would need to be satisfied that the
person has consented (in writing) to be a project proponent for the project, and
that the person is a fit and proper person (within the meaning of Part 8);
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• if a biodiversity certificate is in effect in relation to the biodiversity project and is
held by a person who is not a project proponent for the project - the holder of the
certificate would need to have been notified of the proposed variation and given
the opportunity to provide submissions.
112. Subclause 19(3) would allow rules made for the purpose of subclause 19(1) to empower
the Regulator to require security be given to the Commonwealth in relation to the
fulfilment of any requirements to relinquish biodiversity certificates that may be
imposed under Part 13 in relation to the project. Security may be required even if the
circumstances that may result in relinquishment do not exist at the time of the proposed
variation. This is important, as it provides assurance to the Regulator, and the market
more generally, that the new project proponent (or proponents) would be able to meet
any future relinquishment requirements that may arise.
113. The rules would also be able to provide a power for the Regulator to refuse an
application unless the Regulator is satisfied that the remaining project proponents would
have the capability and resources to carry out the project (subclause 19(4)).
114. Biodiversity projects would typically operate for long periods, with most likely to
provide for the protection or enhancement of biodiversity for 25 or 100 years. The
purpose of this clause is to provide a mechanism for a project proponent to transfer their
project to another eligible person, for example, if they sell land together with a
registered biodiversity project - while maintaining appropriate safeguards to ensure the
biodiversity outcome intended to be achieved by the project is protected.
115. It is appropriate for the circumstances in which the Regulator may vary a project's
registration to change the identity of the project proponent to be set out in rules, as it
may be necessary to tailor requirements and circumstances to different kinds of projects.
However, the criteria set out at subclauses 19(2) to (4) would set appropriate parameters
in the Bill that the Minister would need to comply with when making such rules. The
rules would be subject to ordinary Parliamentary scrutiny processes, including
disallowance and sunsetting.
116. The first note following subclause 19(1) would refer the reader to clause 22 of the Bill,
which deals with the procedures for the voluntary variation of the registration of a
biodiversity project.
117. A decision under rules made for the purposes of subclause 19(1) to vary, or refuse to
vary, a registered biodiversity project would be a reviewable decision. The second note
following subclause 19(1) directs the reader to Part 20 of the Bill, which deals with
reviewable decisions.
118. The note following subclause 19(2) would refer the reader to the fit and proper person
test in clauses 97 to 99A of the Bill.
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Clause 20 - Voluntary variation of registration of biodiversity project - changes in
project area etc.
119. Subclause 20(1) would allow the rules to make provision for and in relation to
empowering the Regulator to vary the registration of a registered biodiversity project in
respect of the project area, the methodology determination that covers the project, the
project's activity period (if any) or the project's permanence period.
120. Where the proposed variation is to the methodology determination that covers the
project, the rules would only be able to empower the Regulator to approve a variation
where the methodology proposed to cover the project is in effect. This means that a
project proponent would not be able to successfully apply for their project to be covered
by a methodology determination that is still in development, or that has been revoked.
Where a variation to change the methodology determination covering the project is
approved, the new determination would apply to the project as it exists at the date the
variation is approved (including any variations to the methodology determination that
have come into effect by that date).
121. Rules made for the purposes of subclause 20(1) would only be able to empower the
Regulator to vary the registration of a biodiversity project on application from the
project proponent (or, in the case of multiple project proponents, a project proponent)
(subclause 20(3)). In other words, rules made for the purposes of subclause 20(1) would
not be able to empower the Regulator to unilaterally vary a project's registration.
122. In addition, where a biodiversity certificate is in effect for the biodiversity project, and
is held by a person who is not a project proponent for the project, rules made for the
purposes of subclause 20(1) would only be able to empower the Regulator to vary the
project's registration if the holder of the certificate has consented (in writing) to the
variation and the Regulator is satisfied that the variation would not result in a material
change to the certificate (subclause 20(3)).
123. The purpose of clause 20 is to provide a mechanism for project proponents to vary their
projects as circumstances change. A project proponent may wish to vary their project to
apply an updated or different methodology determination that provides, for example,
more cost-effective methods of assessing changes in biodiversity or delivering
biodiversity outcomes. Proponents may also want to incorporate new areas into their
project or remove project areas, including when land is transferred or sold.
Alternatively, new information about the biodiversity on the project area or how to
manage it may become available, necessitating a change in the project.
124. It is appropriate for the circumstances in which the Regulator may vary a project's
registration to be set out in rules, as it may be necessary to tailor requirements and
circumstances to different kinds of projects. However, the criteria set out at subclauses
20(2) and (3) would set appropriate parameters in the Bill that the Minister would need
to comply with when making such rules. The rules would be subject to ordinary
Parliamentary scrutiny processes, including disallowance and sunsetting.
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125. The first note following subclause 20(1) would refer the reader to clause 22 of the Bill,
which deals with the procedures for the voluntary variation of the registration of a
biodiversity project. The second note would also refer the reader to clause 34 of the Bill,
which provides for the permanence period for a project.
126. A decision under rules made for the purposes of subclause 20(1) to vary, or refuse to
vary, a registered biodiversity project would be a reviewable decision. The third note
following subclause 20(1) directs the reader to Part 20 of the Bill, which deals with
reviewable decisions.
Clause 21 - Voluntary variation of conditional registration of biodiversity project -
condition of registration has been met
127. Subclause 21(1) would allow the rules to make provision for and in relation to
empowering the Regulator to vary the registration of a registered biodiversity project to
remove a condition of registration imposed under clause 17 (obtaining regulatory
approvals), 18 (obtaining eligible interest holder consents) or 18A (obtaining consent
from the registered native title body corporate to carrying out the project in or on a
native title area). This is an important step in the process, as it would not be possible for
a biodiversity certificate to be issued in respect of the project until any conditions on the
project's registration have been removed.
128. Rules made for the purposes of subclause 21(1) would only be able to empower the
Regulator to vary the registration of a biodiversity project on application from the
project proponent (or, in the case of multiple project proponents, a project proponent)
(subclause 21(2)). In other words, rules made for the purposes of subclause 21(1) would
not be able to empower the Regulator to unilaterally vary a project's registration.
129. In addition, the rules would only be able to empower the Regulator to remove a
condition of registration if the Regulator is satisfied that the condition has been met.
130. It is appropriate for the circumstances in which the Regulator may vary a project's
registration to be set out in rules, as it may be necessary to tailor requirements and
circumstances to different kinds of projects. However, the criteria set out at subclause
21(2) would set appropriate parameters in the Bill that the Minister would need to
comply with when making such rules. The rules would be subject to ordinary
Parliamentary scrutiny processes, including disallowance and sunsetting.
131. The first note following subclause 21(1) would refer the reader to clause 22 of the Bill,
which deals with the procedures for the voluntary variation of the registration of a
biodiversity project.
132. A decision under rules made for the purposes of subclause 21(1) to vary, or refuse to
vary, a registered biodiversity project would be a reviewable decision. The second note
following subclause 21(1) directs the reader to Part 20 of the Bill, which deals with
reviewable decisions.
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Clause 22 - Procedures for voluntary variation of biodiversity project
133. Subclause 22(1) would clarify that the rule-making powers in clauses 19, 20 and 21
(concerning voluntary variations of the registration of a biodiversity project) extend to
allowing the rules to make provision for or in relation to the following procedural
matters:
• applications for variations under those rules and the approval by the Regulator of
a form for such an application;
• information or documents that would be required to accompany a variation
application;
• verification by statutory declaration of statements in a variation application;
• consents that would be required to be obtained before making a variation
application;
• authorising a person to issue a certificate to certify a matter in relation to a
variation application;
• the fee (if any) that would be required to accompany a variation application;
• empowering the Regulator to require a variation applicant to provide additional
information in connection with their application, and to refuse to consider the
application any further until that information is provided;
• varying a biodiversity certificate issued in respect of a registered biodiversity
project.
134. Subclause 22(2) would clarify that clause 22 would not limit the rule-making power in
any of subclauses 19(1), 20(1) or 21(1).
135. Subclause 22(3) would make it clear that any application fee charged for a voluntary
variation to the registration of a biodiversity project under rules made for the purposes
of subclauses 19(1), 20(1) or 21(1) must not be such as to amount to taxation.
136. Subclauses 22(4) and (5) would provide additional notification requirements for rules
made under any of subclauses 19(1), 20(1) or 21(1). Rules made for the purposes of any
of these provisions would have to require the Regulator to give a copy of the variation
to the applicant, the relevant land registration official (if any) and the holder of the
certificate (where the holder is a different person to the project proponent) (subclause
22(4)). The rules would also have to require the Regulator to give written notice to the
applicant of a decision to refuse to vary the registration of a registered biodiversity
project (subclause 22(5)).
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137. It is appropriate for the procedural matters concerning the Regulator's decision whether
or not to vary a project's registration to be set out in the rules, as it may be necessary to
tailor requirements and circumstances to different kinds of projects. The rules would be
subject to ordinary Parliamentary scrutiny processes, including disallowance and
sunsetting.
Division 4 - Cancellation of registration of biodiversity project
Subdivision A - Voluntary cancellation of registration of biodiversity project
Clause 23 - Voluntary cancellation of registration of biodiversity project - certificate in
effect
138. Subclause 23(1) would allow the rules to make provision for and in relation to
empowering the Regulator to cancel the registration of a registered biodiversity project.
139. Rules made for the purpose of subclause 23(1) would only be able to empower the
Regulator to cancel the registration of a biodiversity project if the project proponent
applies to the Regulator for the registration to be cancelled, and a biodiversity certificate
has been issued in respect of the project (whether or not the original certificate is still in
effect) (subclause 23(2)).
140. In other words, rules made for the purpose of subclause 23(1) would deal with the
voluntary cancellation of a project's registration during the period after a biodiversity
certificate is issued for the project.
141. Paragraph 23(2)(c) would provide an additional requirement that rules made for the
purposes of subclause 23(1) must satisfy. Rules made for the purposes of subclause
23(1) would only be able to empower the Regulator to cancel the registration of a
biodiversity project on application if the original biodiversity certificates issued for the
project have been relinquished in accordance with the Bill.
142. It is appropriate that, following the issue of a biodiversity certificate for a project, the
only time that the registration of that project can be voluntarily cancelled is where that
certificate has been relinquished and is no longer in effect. This is because cancelling
the registration of a biodiversity project for which a certificate has been issued, on
application of the project proponent, may undermine confidence in the market and cause
financial disadvantage, particularly if the certificate in question is held by a person other
than the project proponent.
143. If the project proponent is unable to relinquish the original biodiversity certificate issued
for that project (because, for example, they have on sold it to another person who is
unwilling or unable to sell it back to the project proponent), the project proponent would
not be able to cancel the registration of the project under rules made for the purpose of
subclause 23(1). There would be no ability to relinquish one or more equivalent
biodiversity certificates in place of the original biodiversity certificate.
144. The power in subclause 23(1) would include the power to make rules that make
provision for or in relation to applications for cancellation of the registration of a
34
biodiversity project, for the approval by the Regulator of a form for such an application,
and other conditions that must be satisfied for the Regulator to cancel the registration
(subclause 23(3)). However, this would not otherwise limit the scope of the power in
subclause 23(1) (subclause 23(4)).
145. It is appropriate for the circumstances in which the Regulator may cancel a project's
registration on application by the project proponent to be set out in rules, as it may be
necessary to tailor requirements and circumstances to different kinds of projects.
However, the criteria set out at subclauses 23(2) and (3) would set appropriate
parameters in the Bill that the Minister would need to comply with when making such
rules. The rules would be subject to ordinary Parliamentary scrutiny processes,
including disallowance and sunsetting.
Clause 24 - Voluntary cancellation of registration of biodiversity project - no certificate
in effect
146. Subclause 24(1) would allow the rules to make provision for and in relation to
empowering the Regulator to cancel the registration of a registered biodiversity project.
147. Rules made for the purpose of subclause 24(1) would only be able to empower the
Regulator to cancel the registration of a biodiversity project if the project proponent
applies to the Regulator for the registration to be cancelled, and no biodiversity
certificate has been issued in respect of the project (subclause 24(2)).
148. In other words, rules made for the purpose of subclause 24(1) would deal with the
voluntary cancellation of a project's registration during the period before a biodiversity
certificate is issued for the project.
149. The power in subclause 24(1) would include the power to make rules that make
provision for or in relation to applications for cancellation of the registration of a
biodiversity project, and for the approval by the Regulator of a form for such an
application (subclause 24(3)). However, this would not otherwise limit the scope of the
power in subclause 24(1) (subclause 24(4)).
150. It is appropriate for the circumstances in which the Regulator may cancel a project's
registration on application by the project proponent to be set out in rules, as it may be
necessary to tailor requirements and circumstances to different kinds of projects.
However, the criteria set out at subclauses 24(2) and (3) would set appropriate
parameters in the Bill that the Minister would need to comply with when making such
rules. The rules would be subject to ordinary Parliamentary scrutiny processes,
including disallowance and sunsetting.
Clause 25 - Procedures for voluntary cancellation of registration of biodiversity project
151. Subclause 25(1) would clarify that the rule-making powers in clauses 23 and 24
(concerning voluntary cancellation of the registration of a biodiversity project) extend to
allowing the rules to make provision for or in relation to the following procedural
matters:
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• applications for cancellation under those rules and the approval by the Regulator
of a form for such an application;
• information or documents that would be required to accompany an application for
cancellation of a project's registration;
• verification by statutory declaration of statements in an application for
cancellation of a project's registration;
• consents that would be required to be obtained before making an application for
cancellation of a project's registration;
• authorising a person to issue a certificate to certify a matter in relation to an
application for cancellation of a project's registration;
• the fee (if any) that would be required to accompany an application for
cancellation of a project's registration;
• the withdrawal of an application for the cancellation of a project's registration;
• empowering the Regulator to require an applicant to provide additional
information in connection with their application to cancel a project's registration,
and to refuse to consider the application any further until that information is
provided.
152. Subclause 25(2) would clarify that clause 25 would not limit the rule-making power in
subclauses 23(1) or 24(1).
153. Subclause 25(3) would make it clear that any application fee charged for a voluntary
cancellation of the registration of a biodiversity project under rules made for the
purposes of subclauses 23(1) or 24(1) must not be such as to amount to taxation.
154. Subclauses 25(4) and (5) would provide additional notification requirements for rules
made under subclauses 23(1) or 24(1). Rules made for the purposes of any of these
provisions would have to require the Regulator to give notice of the cancellation to the
applicant, the relevant land registration official and the holder of the certificate (where
the holder is a different person to the project proponent) (subclause 25(4)). The rule
would also have to require the Regulator to give written notice to the applicant of a
decision to refuse to cancel the registration of a registered biodiversity project
(subclause 25(5)).
155. It is appropriate for the procedural matters concerning the Regulator's decision whether
or not to cancel a project's registration be set out in rules, as it may be necessary to
tailor requirements and circumstances to different kinds of projects. The rules would be
subject to ordinary Parliamentary scrutiny processes, including disallowance and
sunsetting.
36
Subdivision B - Unilateral cancellation of registration of biodiversity project
Clause 26 - Unilateral cancellation of registration of biodiversity project - condition of
registration has not been met
156. Subclause 26(1) would allow the rules to make provision for and in relation to
empowering the Regulator to cancel the registration of a registered biodiversity project.
157. Rules made for the purposes of subclause 26(1) would only be able to empower the
Regulator to cancel the registration of a biodiversity project where the registration is
subject to a condition mentioned in any of subclauses 17(2), 18(2) or 18A(2) and the
Regulator is satisfied both that the condition has not been met and that at least 5 years
have passed since the project was registered. The conditions mentioned in subclauses
17(2), 18(2) and 18A(2) are to obtain, respectively, required regulatory approvals or
necessary consents (subclause 26(2)).
158. In other words, rules made for the purposes of subclause 26(1) would deal with the
unilateral cancellation of a project's registration on a basis that a condition of
registration had not been met.
159. The purpose of these requirements is to ensure that, if the Regulator approves the
registration of a biodiversity project for which not all required consents or regulatory
approvals have been obtained, the project proponent would be obligated to take the
means necessary to obtain such consents or approvals in the first five years of
registration, or risk the project's registration being cancelled. This would assist in
ensuring that projects do not substantially progress without the required consents. Such
rules would enable, for example, the Regulator to cancel a project in circumstances
where an eligible interest holder or a registered native title body corporate does not
consent to the project going ahead as a registered biodiversity project, or where the
refusal of a necessary regulatory approval at Commonwealth, State or Territory level
means the project cannot legally progress. This would also ensure that the Register only
reflects projects which are legally able to go ahead.
160. Subclause 26(3) would provide that rules made for the purpose of subclause 26(1)
would need to require the Regulator to consult with the project proponent for the project
before deciding to cancel the registration. This would ensure that the principles of
natural justice are complied with.
161. It is appropriate for the circumstances in which the Regulator may unilaterally cancel a
project's registration to be set out in rules, as it may be necessary to tailor requirements
and circumstances to different kinds of projects. However, the criteria set out at
subclauses 26(2) and (3) would set appropriate parameters in the Bill that the Minister
would need to comply with when making such rules. The rules would be subject to
ordinary Parliamentary scrutiny processes, including disallowance and sunsetting.
162. A decision under rules made for the purposes of subclause 26(1) to cancel the
registration of a registered biodiversity project would be a reviewable decision. The note
37
following subclause 26(1) directs the reader to Part 20 of the Bill, which deals with
reviewable decisions.
Clause 27 - Unilateral cancellation of registration of biodiversity project - project not
commenced, or unlikely to result in issuing of biodiversity certificate
163. Subclause 27(1) would allow the rules to make provision for and in relation to
empowering the Regulator to cancel the registration of a registered biodiversity project.
164. Rules made for the purposes of subclause 27(1) would only be able to empower the
Regulator to cancel the registration of a biodiversity project where a biodiversity
certificate has not yet been issued for the project and either:
• 5 years have passed since the project was first registered and the Regulator is not
satisfied that the project has begun to be carried out; or
• the Regulator is satisfied that the project is not being carried out; or
• the Regulator is satisfied the project is unlikely to be carried out in a way that
would result in a biodiversity certificate being issued (subclause 27(2)).
165. In other words, rules made for the purposes of subclause 27(1) would deal with the
unilateral cancellation of a project's registration in circumstances where the project has
not commenced or is not likely to result in a biodiversity certificate.
166. The purpose of these requirements is to ensure that, if the Regulator approves the
registration of a biodiversity project which is then not carried out, or not carried out in a
way that is likely to result in a biodiversity certificate, the Regulator is able to cancel the
project and remove it from the Register. This would incentivise project proponents for
registered biodiversity projects to take the necessary actions to carry out their proposed
project in a timely manner, so to ensure the intended biodiversity outcomes are met.
167. This would also ensure that the Register only reflects projects which are, in practice,
being carried out and likely to result in a biodiversity outcome. This is a key integrity
measure for the Bill.
168. Subclause 27(3) would provide that rules made for the purpose of subclause 27(1)
would need to require the Regulator to consult with the project proponent for the project
before deciding to cancel the registration. This would ensure that the principles of
natural justice are complied with.
169. It is appropriate for the circumstances in which the Regulator may unilaterally cancel a
project's registration to be set out in rules, as it may be necessary to tailor requirements
and circumstances to different kinds of projects. However, the criteria set out at
subclauses 27(2) and (3) would set appropriate parameters in the Bill that the Minister
would need to comply with when making such rules. The rules would be subject to
ordinary Parliamentary scrutiny processes, including disallowance and sunsetting.
38
170. A decision under rules made for the purposes of subclause 27(1) to cancel the
registration of a registered biodiversity project would be a reviewable decision. The note
following subclause 27(1) directs the reader to Part 20 of the Bill, which deals with
reviewable decisions.
Clause 28 - Unilateral cancellation of registration of biodiversity project - eligibility
requirements not met etc.
171. Subclause 28(1) would allow the rules to make provision for and in relation to
empowering the Regulator to cancel the registration of a registered biodiversity project.
172. Rules made for the purposes of subclause 28(1) would only be able to empower the
Regulator to cancel the registration of a biodiversity project where the project no longer
meets a requirement that is set out in subclause 15(4) of the Bill and is specified in the
rules (subclause 28(2)). Subclause 15(4) would set out the matters of which the
Regulator must be satisfied in order to approve the registration of a biodiversity project.
173. In other words, rules made for the purpose of subclause 28(1) would deal with the
unilateral cancellation of a project's registration on the basis that a specified eligibility
criteria for registration is no longer met.
174. The purpose of these requirements is to ensure that a biodiversity project does not meet
the eligibility requirements in subclause 15(4) at the time of registration and then is later
changed (post-registration) in a manner that means it no longer meets those
requirements. Such rules would also enable, for example, the Regulator to cancel
projects in circumstances where the project becomes an excluded biodiversity project
(within the meaning of clause 33).
175. Subclause 28(3) would provide that rules made for the purpose of subclause 28(1)
would need to require the Regulator to consult with the project proponent for the project
before deciding to cancel the registration. This would ensure that the principles of
natural justice are complied with.
176. It is appropriate for the circumstances in which the Regulator may unilaterally cancel a
project's registration to be set out in rules, as it may be necessary to tailor requirements
and circumstances to different kinds of projects. However, the criteria set out at
subclauses 28(2) and (3) would set appropriate parameters in the Bill that the Minister
would need to comply with when making such rules. The rules would be subject to
ordinary Parliamentary scrutiny processes, including disallowance and sunsetting.
177. A decision under rules made for the purposes of subclause 28(1) to cancel the
registration of a registered biodiversity project would be a reviewable decision. The note
following subclause 28(1) directs the reader to Part 20 of the Bill, which deals with
reviewable decisions.
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Clause 29 - Unilateral cancellation of registration of biodiversity project - project
proponent ceases to be a fit and proper person
178. Subclause 29(1) would allow the rules to make provision for and in relation to
empowering the Regulator to cancel the registration of a registered biodiversity project.
179. Rules made for the purposes of subclause 29(1) would only be able to empower the
Regulator to cancel the registration of a biodiversity project where:
• the Regulator is satisfied that a project proponent for the project is no longer a fit
and proper person and,
• after an additional 90 days have passed, the Regulator is still not satisfied that
each of the project proponents for the project is a fit and proper person (subclause
29(2)).
180. The matters the Regulator is required to take into account when deciding whether a
person is a fit and proper person would be set out in Part 8 of the Bill (see clauses 97 to
99A, as referred to in the note after subclause 29(2)).
181. In other words, rules made for the purpose of subclause 29(1) would deal with the
unilateral cancellation of a project's registration on a basis that a project proponent for
the project is not a fit and proper person.
182. The purpose of the requirements is to ensure that the Regulator is able to take
appropriate action if satisfied that a project proponent for a registered biodiversity
project is no longer a fit and proper person. A project proponent who was a fit and
proper person when the project was registered may no longer be considered a fit and
proper person if they, for example, are convicted of an offence or ordered to pay a
pecuniary penalty under Commonwealth, State or Territory law that relates to the
environment, climate change, work, health or safety, or fraudulent or dishonest conduct.
183. The purpose of providing an additional 90 days to have passed before the Regulator is
able to cancel the biodiversity project's registration is to allow time for the person to
resolve the relevant issue (if it can be resolved) or for an application to be made to
change the identity of the project proponent (to remove the person who is no longer a fit
and proper person). After 90 days, the Regulator would need to reassess whether each of
the project proponents for the project (including any new project proponents) are fit and
proper persons. The rules would be required to provide that if, at this stage, the
Regulator is now satisfied that each of the project proponents for the project are fit and
proper persons, the Regulator would not be able to cancel the project's registration.
184. This would ensure that the cancellation of a project's registration is only done as a last
resort when the project proponent who is no longer a fit and proper person cannot
resolve the relevant issue or be replaced by another project proponent who is a fit and
proper person.
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185. Subclause 29(3) would provide that rules made for the purpose of subclause 29(1)
would need to require the Regulator to consult with the project proponent for the project
before deciding to cancel the registration. This would ensure that the principles of
natural justice are complied with.
186. It is appropriate for the circumstances in which the Regulator may unilaterally cancel a
project's registration to be set out in rules, as it may be necessary to tailor requirements
and circumstances to different kinds of projects. However, the criteria set out at
subclauses 29(2) and (3) would set appropriate parameters in the Bill that the Minister
would need to comply with when making such rules. The rules would be subject to
ordinary Parliamentary scrutiny processes, including disallowance and sunsetting.
187. A decision under rules made for the purposes of subclause 29(1) to cancel the
registration of a registered biodiversity project would be a reviewable decision. The note
following subclause 29(1) directs the reader to Part 20 of the Bill, which deals with
reviewable decisions.
Clause 30 - Unilateral cancellation of registration of biodiversity project - project
proponent ceases to exist etc.
188. Subclause 30(1) would allow the rules to make provision for and in relation to
empowering the Regulator to cancel the registration of a registered biodiversity project.
189. Rules made for the purposes of subclause 30(1) would only be able to empower the
Regulator to cancel the registration of a biodiversity project where Regulator is satisfied
that the project proponent has died or ceased to exist (and there are no other project
proponents for the project) or that the project is not being carried out (except to the
extent that this is in accordance with the methodology determination that covers the
project), that 90 days have passed since these circumstances started to exist, and that the
circumstances still exist (subclause 30(2)).
190. In other words, rules made for the purpose of subclause 30(1) would deal with the
unilateral cancellation of a project's registration on a basis that there is no project
proponent for the project or the project is not being carried out.
191. The purpose of these requirements is to ensure that the Regulator can take action to
cancel the registration of a biodiversity project if it no longer has a project proponent or
is no longer being carried out. This would also ensure that the Register only reflects
projects which are being carried out for the purpose of achieving a biodiversity
outcome.
192. The purpose of requiring an additional 90 days to have passed before the Regulator is
able to cancel the biodiversity project's registration is to allow time for a new project
proponent to be specified for the project, and for the project proponent to recommence
carrying out the project. After 90 days, the Regulator would need to reassess whether
the circumstances in subclause 30(2) still exist. The rules would be required to provide
that if, at this stage, the Regulator is now satisfied there is a project proponent for the
project or that the project is now being carried out (as relevant), the Regulator would not
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be able to cancel the project's registration. This would ensure that the cancellation of a
project's registration is only done as a last resort when the project proponent cannot be
replaced or where no project proponent is prepared to continue carrying out the project.
193. Subclause 30(3) would provide that rules made for the purpose of subclause 30(1)
would need to require the Regulator to consult with the project proponent for the project
(where there is one) before deciding to cancel the registration. This would ensure that
the principles of natural justice are complied with.
194. It is appropriate for the circumstances in which the Regulator may unilaterally cancel a
project's registration to be set out in rules, as it may be necessary to tailor requirements
and circumstances to different kinds of projects. However, the criteria set out at
subclauses 30(2) and (3) would set appropriate parameters in the Bill that the Minister
would need to comply with when making such rules. The rules would be subject to
ordinary Parliamentary scrutiny processes, including disallowance and sunsetting.
195. A decision under rules made for the purposes of subclause 30(1) to cancel the
registration of a registered biodiversity project would be a reviewable decision. The note
following subclause 30(1) directs the reader to Part 20 of the Bill, which deals with
reviewable decisions.
Clause 31 - Unilateral cancellation of registration of biodiversity project - false or
misleading information
196. Subclause 31(1) would allow the rules to make provision for and in relation to
empowering the Regulator to cancel the registration of a registered biodiversity project.
197. Rules made for the purposes of subclause 31(1) would only be able to empower the
Regulator to cancel the registration of a biodiversity project where the Regulator is
satisfied that false or misleading information in connection with the project was given to
the Regulator - either in (or in connection with) an application made under the Bill or
rules, or in a biodiversity report or a notification under Division 3 of Part 9.
198. In other words, rules made for the purpose of subclause 31(1) would deal with the
unilateral cancellation of a project's registration on a basis that false or misleading
information was provided to the Regulator in relation to the project.
199. The purpose of these requirements is to ensure that the Regulator can take action to
cancel the registration of a biodiversity project if it becomes aware of false and
misleading information having been provided about the project.
200. Subclause 31(3) would provide that rules made for the purpose of subclause 31(1)
would need to require the Regulator to consult with the project proponent for the project
before deciding to cancel the registration. This would ensure that the principles of
natural justice are complied with.
201. It is appropriate for the circumstances in which the Regulator may unilaterally cancel a
project's registration to be set out in rules, as it may be necessary to tailor requirements
42
and circumstances to different kinds of projects. However, the criteria set out at
subclauses 31(2) and (3) would set appropriate parameters in the Bill that the Minister
would need to comply with when making such rules. The rules would be subject to
ordinary Parliamentary scrutiny processes, including disallowance and sunsetting.
202. A decision under rules made for the purposes of subclause 31(1) to cancel the
registration of a registered biodiversity project would be a reviewable decision. The note
following subclause 31(1) directs the reader to Part 20 of the Bill, which deals with
reviewable decisions.
Clause 32 - Notice of unilateral cancellation of registration of biodiversity project
203. Clause 32 would provide an additional notification requirement for rules made under
any of subclauses 26(1), 27(1), 28(1), 29(1), 30(1) or 31(1) (concerning the Regulator
unilaterally cancelling the registration of a registered biodiversity project).
204. Rules made for the purposes of any of these provisions would have to require the
Regulator to give notice of the cancellation to the relevant land registration official and
the holder of the certificate (where the holder is a different person to the project
proponent). The rules would also be able to require the Regulator to give notice of the
cancellation to other people.
Subdivision C--Cancellation of registration of biodiversity project at the end of the
permanence period for the project
Clause 32A - Cancellation of registration of biodiversity project at the end of the
permanence period for the project
205. Clause 32A would have the effect that a project's registration would be automatically
cancelled at the end of the permanence period for the project. This is consistent with the
fact that the permanence period is intended to cover the life of the project and there
would be no obligations for project proponents (or any other person) in respect of the
project after the end of the permanence period. Any biodiversity certificate issued for
the project would also be cancelled at the end of the permanence period (see clause 77).
206. The note following clause 32A would refer the reader to clause 34 which provides for
the duration of the permanence period for a project.
Division 5 - Excluded biodiversity projects
Clause 33 - Excluded biodiversity projects
207. Clause 33 would allow the rules to specify kinds of projects that are excluded
biodiversity projects. An excluded biodiversity project would not be able to be
registered under the Bill.
208. In deciding to make such rules, the Minister would need to consider whether there is a
material risk that the kind of project will have a material adverse impact on the
availability of water, biodiversity (other than those kinds of biodiversity to be addressed
by the kind of project in question), the environment (which would include land
contamination and dust) employment, the local community or any local Aboriginal or
43
Torres Strait Islander community who have a connection to the project area, and land
access for agricultural production.
209. The purpose of this provision is to allow the Minister to make rules to ensure that
particular kinds of biodiversity projects cannot be registered on the basis that such
projects are likely to have material adverse impacts. For example, an excluded
biodiversity project might include a project to plant a species in an area where it is a
known weed species, a project to plant trees through previously treeless ecosystems and
turning a degraded native grassland into a woodland, or a project to plant non-wetland
species on a previously drained wetland, reducing the ability to restore the wetland to its
previously natural state in the future.
210. In consideration of whether a kind of project will have adverse impacts to the local
community, the Minister would be able to consider matters such as (but not limited to)
the scale of the agricultural production system that may be impacted and the resulting
impact to the related agricultural production in the local community, the relevant
national resource management regional plan, healthy country plan or other land and sea
management plans where applicable, and cumulative societal impacts and
intergenerational equity in regions.
211. It is appropriate for the rules to prescribe the excluded biodiversity projects as whether a
particular kind of project should be excluded from the scope of the proposed legislation
is likely to change over time as technologies become more advanced and communities
and biodiversity evolve. The rules would be subject to ordinary Parliamentary scrutiny
processes, including disallowance and sunsetting.
Division 6 - Permanence period
Clause 34 - Permanence period
212. Clause 34 would set out the duration of the permanence period for a registered
biodiversity project.
213. The permanence period for a registered biodiversity period would be defined in clause 7
of the Bill, as the period set out in the notice of approval of registration for the project
(subject to any variation of the permanence period made under rules made for the
purpose of paragraph 20(1)(d)). The permanence period would be required to comply
with the requirements in clause 34. The permanence period for a registered biodiversity
project sets the time for which the project (and the biodiversity affected by the project)
must be monitored and protected. A biodiversity certificate issued for a registered
biodiversity project would only be in force until the end of the permanence period for
the project (see clause 77).
214. The combined effect of subclauses 34(1) to (4) would be to set a default permanence
period for all registered biodiversity projects of 25 years or 100 years from the day after
the project is registered on the Register. Project proponents would be able to choose
whether their project has a 25-year or 100-year permanence period (see subclause
12(3)).
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215. However, this default permanence period would not apply if the methodology
determination that covers the project allows for a different permanence period to be
ascertained. A methodology determination would be able to provide for a shorter or
longer permanence period for a registered biodiversity project (or a kind of registered
biodiversity project) covered by that methodology determination (subclause 34(5)).
216. The permanence period of a registered biodiversity project would be able to be varied
under rules made for the purposes of subclause 20(1) (see note following subclause
34(1)).
217. Subclause 34(6) would allow the Regulator to unilaterally extend the permanence period
of a registered biodiversity project if the Regulator is satisfied that there has been a
significant reversal of the biodiversity outcome to which the project relates, and the
extension is necessary to restore the biodiversity outcome, or mitigate the reversal. This
is an integrity measure in the Bill. It would ensure that a project proponent is provided
an avenue and time to undertake necessary remediation activities to protect or restore
biodiversity following a significant reversal of the biodiversity outcome to which their
project relates.
218. Subclause 34(7) would allow the Regulator to extend the permanence period of a
registered biodiversity project on request from the project proponent. The Regulator
would only be able to approve a request to extend the permanence period for a project if
the Regulator is satisfied that the biodiversity outcome to which the project relates has
not been achieved, and the extension is necessary for the biodiversity outcome to be
achieved.
219. A decision under either subclause 34(6) (to extend a registered biodiversity project's
permanence period) or subclause 34(7) (to extend or refuse to extend a registered
biodiversity project's permanence period) would be a reviewable decision. This is
reflected in the notes under both subclauses, which direct the reader to Part 20 of the
Bill (dealing with reviewable decisions).
220. A request under subclause 34(7) would need to be in writing and made in a form
approved in writing by the Regulator (subclause 34(8)). The Regulator would be
required to take all reasonable steps to ensure that a decision is made on the request
within 30 days after the request was made (subclause 34(9)).
221. Under subclause 34(10), if the Regulator extends the permanence period for a registered
biodiversity project, the Regulator would be required to notify the following persons of
the extension: the project proponent, the holder of the biodiversity certificate for the
project (where different from the project proponent), the relevant land registration
official, the registered native title body corporate (if the project area is in or on a native
title area) and any other person specified in the rules.
222. The Regulator would be required to notify the relevant land registration official of the
end of the permanence period of a registered biodiversity project (subclause 34(11)).
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223. If the biodiversity certificate for a registered biodiversity project sets out the
permanence period for that project, the Regulator would be required to vary that
certificate to any extension of the permanence period for the project (subclause 34(12)).
PART 3 - MULTIPLE PROJECT PROPONENTS
GENERAL OUTLINE
224. Part 3 of the Bill would provide for arrangements for registered biodiversity projects
that have more than one project proponent, including the obligations that may be
imposed on and discharged by the multiple project proponents. For example, this would
provide flexibility for projects undertaken by landholders of adjacent properties to
establish wildlife corridors.
225. It would also allow multiple project proponents to nominate a nominee for the service of
documents, and for the taking of eligible voluntary actions.
NOTES ON INDIVIDUAL CLAUSES
Division 1 - Introduction
Clause 35 - Simplified outline of this Part
226. Clause 35 would provide a simplified outline of Part 3 of the Bill. The outline is not
intended to be comprehensive and has been included to assist readers to understand the
substantive provisions of Part 3, rather than to replace these provisions. It is intended
that readers will rely on the substantive clauses of Part 3.
Division 2 - References to project proponents
Clause 36 - References to project proponents
227. Clause 36 would clarify that, where there are 2 or more eligible persons who are
registered as the project proponent for a registered biodiversity project (the multiple
project proponents):
• each of the multiple project proponents is a project proponent for the registered
biodiversity project for the purposes of the Bill; and
• a reference in the Bill, the rules or another instrument made under the Bill to the
project proponent for the registered biodiversity project is to be read as a reference
to each of the multiple project proponents.
228. This would allow all multiple project proponents to share in the benefits of the
registered biodiversity project, and to also be jointly and severally liable for
responsibilities relating to the project. It is intended that participation in the market
created by the Bill would involve a broad range of landholders including, in some
circumstances, multiple project proponents. The approach in clause 36 would
appropriately balance flexibility and participation with the need to ensure the integrity
of the scheme.
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Division 3 - Nominee of multiple project proponents
Clause 37 - Nomination of nominee by multiple project proponents - nomination
accompanying application
229. Clause 37 would apply where it is proposed that there be more than one project
proponent for a registered biodiversity project. This will arise where 2 or more eligible
persons are specified as proposed project proponents in the application for registration
of the biodiversity project (under clause 11), or where an application is made (under
rules made for the purpose of clause 19) to change the identity of the project proponent
for an already registered biodiversity project so that the project has multiple project
proponents (such as an application to add a new project proponent).
230. Subclauses 37(2) and (3) would require the application to be accompanied by a notice
nominating one of the eligible persons who would be project proponents as the nominee
in relation to the biodiversity project. The notice would be required to be made in
writing in the approved form. It would also be required to be made jointly by all the
proposed project proponents for the biodiversity project.
231. The purpose of requiring a nominee for projects with multiple project proponents is to
reduce the burden on the multiple proponents to undertake joint projects and to allow
for streamlined interactions with the Regulator. The nominee would be able to receive
documents and act on behalf of the other project proponents.
232. Subclauses 37(4) and (5) would clarify that if the application is granted, the nomination
would take effect at the time the project is registered (for new projects) or at the time the
variation takes effect (for already registered projects applying to change the identity of
the project proponent). This would ensure that there is a nominee for all registered
biodiversity projects with multiple project proponents. If the relevant application is not
granted, the nomination would not take effect.
Clause 38 - Nomination of nominee by multiple project proponents - other nominations
233. Clause 38 would provide a separate mechanism to nominate one of the project
proponents as the nominee for the registered biodiversity project in circumstances where
there is no application being made under either clause 11 (because the project is already
registered) or under rules made for the purposes of clause 19 (because there is no
change in the identity of the project proponents).
234. This provision would be relevant if, for example, the multiple project proponents for a
registered biodiversity project wished to change which one of them is the nominee for
the purposes of the Bill.
235. As with applications under clause 37, an application to nominate one of the project
proponents to be the nominee in relation to the registered biodiversity project would be
required to be made in writing (in the approved form) and would be required to be made
jointly by the project proponents for the registered biodiversity project.
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236. Subclauses 38(4) and (5) would have the combined effect that a nomination made under
clause 38 would take effect at the time it is given to the Regulator, at which time any
other (previous) nomination in relation to the biodiversity project ceases to be in force.
This would ensure that each registered biodiversity project that has multiple project
proponents only has one nominee.
237. The note following subclause 38(2) refers the reader to clause 42 of the Bill, which
would have the effect that the Regulator may cancel the registration of a biodiversity
project that has multiple project proponents where there is no nomination in force for 90
days or more.
Clause 39 - Revocation and cessation of nomination
238. Clause 39 would deal with the revocation and cessation of a nomination made under
clauses 37 or 38 in relation to a registered biodiversity project that has multiple project
proponents.
239. A nomination made under clause 37 or 38 for a registered biodiversity project would
cease to be in force in two circumstances.
240. The first is where one of the project proponents revokes the nomination by written
notice to the Regulator. As all project proponents for a registered biodiversity project
must agree on a nominee, any one of the project proponents for that project would be
able to unilaterally revoke the nomination at any time.
241. The second circumstance where a nomination will cease to be in force is where the
nominee ceases to be a project proponent for the registered biodiversity project. For
instance, following a variation to the project's registration (under rules made for the
purpose of clause 19) that has the effect of changing the identity of the project
proponent to remove the nominee as a project proponent for the project.
242. The note following subclause 38(2) refers the reader to clause 42 of the Bill, which
would have the effect that the Regulator may cancel the registration of a biodiversity
project that has multiple project proponents where there is no nomination in force for 90
days or more. Accordingly, where the nomination ceases to be in force under clause 39,
the project proponents (or the remaining project proponents) for the project would need
to nominate a new nominee in a timely manner or risk the registration for the
biodiversity project being cancelled.
Clause 40 - Service of documents on nominee
243. Clause 40 would have the effect that where:
• there are 2 or more project proponents for a registered biodiversity project; and
• the multiple project proponents have nominated a nominee (under subclause 37(2)
or 38(2)) in relation to the project; and
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• the nomination is in force,
a document relating to the registered biodiversity project that is given to the nominee is
taken to have been given to each of the multiple project proponents.
Clause 41 - Eligible voluntary action taken by nominee
244. Clause 41 would clarify that:
• the nominee (under clause 37 or 38) for a registered biodiversity project would be
able to take an eligible voluntary action on behalf of the multiple project
proponents for that project; and
• where the nominee takes an eligible voluntary action, the Bill (and any instrument
made under the Bill) has effect as if the eligible voluntary action had been made
jointly by the multiple project proponents for the registered biodiversity project.
245. In such circumstances, a reference to the 'applicant' in the Bill or an instrument made
under the Bill would be taken to refer to each of the multiple project proponents, not just
to the nominee.
246. The purpose of this clause is to streamline interaction with the Regulator, while
acknowledging that the multiple project proponents are jointly and severally responsible
for the registered biodiversity project under the proposed legislation.
247. An eligible voluntary action would be defined in clause 7 of the Bill to mean making an
application, giving information in connection with an application, withdrawing an
application, giving a notice (including an electronic notice), making a submission,
making a request, or giving information in connection with a request, where the action
is permitted (but not required) under the Bill or an instrument made under the Bill.
248. Subclause 41(3) would have the effect that only the nominee would be able to take an
eligible voluntary action on behalf of the multiple project proponents for a registered
biodiversity project (not another of the project proponents).
Clause 42 - Unilateral cancellation of registration - failure of multiple project
proponents to nominate a nominee
249. Subclause 42(1) would allow the rules to make provision for and in relation to
empowering the Regulator to cancel the registration of a registered biodiversity project.
250. Rules made for the purpose subclause 42(1) would only be able to empower the
Regulator to cancel the registration of a biodiversity project where a nomination made
by multiple project proponents under clauses 37 or 38 ceases to be in force, and the
Regulator is not provided with a new nomination within 90 days (subclause 42(2)).
251. This is consistent with the policy that, for projects with multiple project proponents,
there must be a nominee at all times. It would also enable, for example, the Regulator to
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cancel projects in circumstances where multiple project proponents cannot agree or
make joint decisions in relation to the project.
252. Subclause 42(3) would provide that rules made for the purpose of subclause 42(1)
would need to require the Regulator to consult with the multiple project proponents
before deciding to cancel the registration. This would ensure that the principles of
natural justice are complied with.
253. Subclause 42(4) would have the effect that the rules would need to require the Regulator
to give notice of the cancellation to the relevant land registration official and the holder
of the certificate (if any, and where the holder is a different person to the project
proponent) if a decision is made to cancel the registration of a registered biodiversity
project. The rules would also be able to require the Regulator to give notice of the
cancellation to other people.
254. It is appropriate for the circumstances in which the Regulator may unilaterally cancel a
project's registration to be set out in rules, as it may be necessary to tailor requirements
and circumstances to different kinds of projects. However, the criteria set out at
subclauses 42(2) to (4) would set appropriate parameters in the Bill that the Minister
would need to comply with when making such rules. The rules would be subject to
ordinary Parliamentary scrutiny processes, including disallowance and sunsetting.
255. A decision under rules made for the purposes of subclause 42(1) to cancel the
registration of a registered biodiversity project would be a reviewable decision. The note
following subclause 42(1) directs the reader to Part 20 of the Bill, which deals with
reviewable decisions.
Division 4 - Obligations of multiple project proponents
Clause 43 - Obligations of multiple project proponents
256. Clause 43 would clarify that, where a registered biodiversity project has multiple project
proponents, all obligations imposed by the Bill (or an instrument made under the Bill)
on the project proponent are imposed equally on all the multiple project proponents for
the project.
257. The intention is that the Regulator would be able to take action against any of the
multiple proponents in relation to enforcing any obligation under the Bill.
258. Notwithstanding this, the obligation would be able to be discharged by any one or more
of the project proponents for the project. This means that the multiple project
proponents would not need to act jointly to discharge an obligation imposed on the
project proponent by the legislation. Rather, where one project proponent takes an
action that discharges an obligation, that obligation would no longer apply to any of the
project proponents for that project.
259. Subclause 43(3) would allow the rules to exempt a specified obligation from the general
rules in clause 43.
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260. For example, a rule may be made under Part 9 of the Bill which would set out a
notification obligation in relation to factors that affect a proponent passing the fit and
proper person test. It would not necessarily be reasonable to expect one proponent to be
aware of such factors that would affect another project proponent passing the fit and
proper person test. In such circumstances, the Minister would be able to make a rule for
the purpose of subclause 43(3) exempting that obligation from the general rule in clause
43, with the effect that the Regulator would not be able to take action against one of the
project proponents for the failure of another of the project proponents to provide the
required information.
PART 4 - METHODOLOGY DETERMINATIONS
GENERAL OUTLINE
261. Part 4 of the Bill would establish a framework and process for making, varying or
revoking methodology determinations. Methodology determinations would set
requirements on how registered biodiversity projects are to be carried out. Methodology
determinations would be legislative instruments, and would be able to be made, varied
or revoked by the Minister after consideration of certain matters, including advice from
the Nature Repair Market Committee.
262. Part 4 would also set out the biodiversity integrity standards. The Minister would only
be able to make or vary a methodology determination if satisfied that it complies with
the biodiversity integrity standards. There would be ten biodiversity integrity standards,
falling into three separate categories: integrity standards relating to project design and
delivery, integrity standards relating to biodiversity assessment, and integrity standards
relating to biodiversity information on the register and certificates.
263. Part 4 would also establish a framework and process for making, varying or revoking
biodiversity assessment instruments. The purpose of a biodiversity assessment
instrument is to establish an overarching, evidence-based standard to achieve
appropriate consistency in how methodology determinations measure and assess
biodiversity (including both a baseline and changes in biodiversity over time). A
biodiversity assessment instrument is intended to transparently set out consistent
requirements for how methodology determinations approach the assessment of baseline
biodiversity and biodiversity outcomes for the project type. This would enable potential
buyers to compare some aspects of projects under different methodology determinations
to understand their relative value, and support scheme-level reporting of outcomes.
NOTES ON INDIVIDUAL CLAUSES
Division 1 - Introduction
Clause 44 - Simplified outline of this Part
264. Clause 44 would provide a simplified outline of Part 4 of the Bill. The outline is not
intended to be comprehensive and has been included to assist readers to understand the
substantive provisions of Part 4, rather than to replace these provisions. It is intended
that readers will rely on the substantive clauses of Part 4.
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Division 2 - Methodology determinations
Subdivision A - Making of methodology determinations
Clause 45 - Methodology determinations
265. Clause 45 would allow the Minister, by legislative instrument, to make a methodology
determination (subclauses 45(1) and (2)). A methodology determination could only be
made by the Minister on the advice of the Nature Repair Market Committee that the
methodology determination meets the biodiversity integrity standards, which would be
informed by a public consultation process (see clause 47).
266. Methodology determinations would cover a kind of biodiversity project and would set
requirements for how that project is to be implemented, including the obligations
applying to the person responsible for the project (the project proponent) under the Bill.
Methodology determinations are a key integrity measure because they are intended to
ensure that the projects registered under the Bill are managed and implemented in a way
that results in genuine and verifiable biodiversity protection or enhancement - so that
certificates are only issued for biodiversity protection or enhancement that would be
unlikely to occur in the absence of the project and, therefore, provide a genuine,
additional environmental benefit.
267. Methodology determinations would be required to meet the biodiversity integrity
standards (set out in clause 57). The biodiversity integrity standards would provide
assurance to the market that methodology determinations would provide for relevant
projects covered by the determination to deliver biodiversity outcomes, and that
information about those outcomes could be relied upon by those purchasing biodiversity
certificates.
268. Each methodology determination would also have to comply with any applicable
biodiversity assessment instruments (made by the Minister under clause 58). It is
intended that a biodiversity assessment instrument would define the requirements for
applying a consistent approach to measuring and assessing biodiversity (either across all
methodology determinations or for a specified class of methodology determinations).
Similar to methodology determinations, a biodiversity assessment instrument would be
made by the Minister on the advice of the Nature Repair Market Committee and involve
a public consultation process (see clause 59).
269. It is intended that methodology determinations would be developed by the Department
in a co-design process outside of the legislation, with opportunities for stakeholder and
public engagement, consultation and participation in the design process. This could
involve third parties submitting potential methodologies to the Department for
consideration.
270. Experts and stakeholders providing input on methodologies could include Aboriginal
persons and Torres Strait Islanders and representatives, researchers, State and Territory
governments, natural resource management organisations, non-government
organisations, landholders, industry groups, potential buyers, and environmental
52
practitioners. The intent would be that experts would have knowledge that is relevant to
the methodology determination under development.
271. It is intended that methodologies would be co-designed with Aboriginal persons and
Torres Strait Islanders. This would provide opportunities for Indigenous knowledge of
biodiversity, cultural heritage and practices to be recognised and appropriately
considered.
272. Subclause 45(1) would set out the mandatory requirements for a methodology
determination. A methodology determination would be required to:
• be expressed to cover a certain kind of biodiversity project (paragraph 45(1)(a)).
For example, a methodology determination may cover marine projects, projects
that involve mixed local native species tree and shrub planting or farm landscape
grassland, woodland and wetland ecosystems restoration.
• set out conditions that must be met for such a project to be registered as a
registered biodiversity project (paragraph 45(1)(b);
• provide for information that is to be included in the entry in the Register for such a
project (paragraph 45(1)(c));
• set out conditions that must be met for an application to be made for a biodiversity
certificate to be issued in respect of such a project (paragraph 45(1)(d));
• set out a method of working out the time after which such applications for a
biodiversity certificate for the project may be made (paragraph 45(1)(d));
• set out conditions that must be met for a biodiversity certificate to be issued in
respect of such a project (paragraph 45(1)(e));
• require the project proponent for such a project to notify the Regulator of
specified matters relating to the project (paragraph 45(1)(f));
• provide for information that is to be included in the entry in the Register for a
biodiversity certificate issued in relation to such a project (paragraph 45(1)(g));
• set out the activities that are to be carried out for the purposes of such a project
(paragraph 45(1)(h));
• provides for the activity period (if any) of such a project to be worked out
(paragraph 45(1)(i)).
273. The note following subclause 45(2) would refer the reader to clause 50 of the Bill,
which deals with the duration of methodology determinations.
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274. Subclause 45(3) would allow a methodology determination to impose any or all of the
following kinds of requirements on the project proponent of a registered biodiversity
project that is covered by the determination:
• specified requirements to carry out activities in the project area for the purposes of
the project;
• specified requirements to ensure that specified activities are not carried out, by the
project proponent or any other person, in the project area;
• specified requirements to include information relating to the project in each
biodiversity project report about the project;
• specified requirements to notify one or more matters relating to the project to the
Regulator;
• specified record keeping requirements relating to the project;
• specified requirements to monitor the project.
275. Requirements imposed by a methodology determination under subclause 45(3) are
intended to ensure that the biodiversity outcome for the project is achieved. For
example, the methodology determination may impose a requirement on the project
proponent to not engage in any activities that involve the clearing of land covered by the
project area, if such activities would be inconsistent with the biodiversity outcome for
the project. Other examples are that the methodology determination could impose a
requirement on the project proponent to complete annual weed removal and feral
predator control activities within the project area, or a requirement to no longer permit
livestock access to a wetland being restored within a project area.
276. The note following subclause 45(3) would refer the reader to clause 46 of the Bill,
which would provide a civil penalty for contravening requirements in a methodology
determination to either carry out activities in the project area or to ensure that specified
activities are not carried out, by the project proponent or any other person, in the project
area. Similarly, notification, record-keeping or project monitoring requirements imposed
by a methodology determination would be enforceable through civil penalty provisions
(see clauses 108, 181 and 182 of the Bill).
277. Subclause 45(4) would clarify that a methodology determination would be able to
exempt traditional Indigenous activities from a requirement imposed under paragraph
45(3)(b) (specified requirements to ensure that specified activities are not carried out, by
the project proponent or any other person, in the project area).
278. Subclause 45(5) deals with conditions imposed by a methodology determination under
paragraphs 45(1)(b), (d) or (e). These are conditions that would need to be met in order
to register the project, apply for a biodiversity certificate for the project or issue a
biodiversity certificate for the project.
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279. Paragraph 45(5)(a) would have the effect that where the methodology determination
covers a kind of biodiversity project that involves the enhancement of biodiversity, the
conditions imposed by the methodology determination must include conditions relating
to the measurement or assessment of the enhancement of biodiversity.
280. Similarly, paragraph 45(5)(b) would have the effect where the methodology
determination covers a kind of biodiversity project that involves the protection of
biodiversity, the conditions imposed by the methodology determination must include
conditions relating to the measurement or assessment of the protection of biodiversity.
281. A methodology determination would be able to cover a kind of biodiversity project that
involves both the protection of biodiversity and the enhancement of biodiversity. In that
case, the methodology determination would need to include conditions to meet the
requirements of both paragraphs 45(5)(a) and (b).
282. Subclause 45(6) deals with requirements imposed by a methodology determination
under paragraphs 45(1)(f), (3)(c), (3)(d) or (3)(f). These are notification, reporting and
monitoring requirements that are imposed on the project proponent for the project.
283. Paragraph 45(6)(a) would have the effect where the methodology determination covers
a kind of biodiversity project that involves the enhancement of biodiversity, the
requirements imposed by the methodology determination must include requirements
relating to the measurement or assessment of the enhancement of biodiversity.
284. Similarly, paragraph 45(6)(b) would have the effect where the methodology
determination covers a kind of biodiversity project that involves the protection of
biodiversity, the requirements imposed by the methodology determination must include
requirements relating to the measurement or assessment of the protection of
biodiversity.
285. As above, a methodology determination would be able to cover a kind of biodiversity
project that involves both the protection of biodiversity and the enhancement of
biodiversity. In that case, the methodology determination would need to include
requirements consistent with both paragraphs 45(6)(a) and (b).
286. The purpose of the requirements in subclauses 45(5) and (6) is to ensure that projects
are required to measure and assess the biodiversity, and the changes in biodiversity,
occurring in the project area during the life of the project. This will allow an accurate
assessment of the extent to which the project achieves its biodiversity outcome.
287. Any such conditions or requirements imposed by a methodology determination would
need to comply with the biodiversity integrity standards, including being supported by
clear and convincing evidence, being consistent with relevant Indigenous knowledge
and values relating to biodiversity and cultural heritage (so far as reasonably
practicable), being consistent with enhancement or protection of biodiversity that is
appropriate to the project area, enabling adaptive management, and requiring a clear
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indication of the level of certainty and confidence of achievement of the enhancement or
protection of biodiversity (see paragraph 57(1)(e)).
288. In addition, any such conditions or requirements would need to comply with the
requirements in an applicable biodiversity assessment instrument concerning the
measurement and assessment of biodiversity and the enhancement or protection of
biodiversity. This would ensure, so far as practicable, a consistent approach to
measuring and assessing biodiversity under the Bill.
289. Subclause 45(7) would allow a methodology determination to require a registered
biodiversity project that is covered by the determination to have a project plan that is in
force until the time ascertained in accordance with the methodology determination.
• A project plan would set out how the project is intended to be carried out and how
the project is intended to achieve the biodiversity outcome for the project. It
would be required to be consistent with the methodology determination that
covers the project, and include such information, and comply with such
requirements, as are specified in the rules or the methodology determination that
covers the project (see definition of project plan in clause 7);
• Project plans are an integrity measure. Project plans would enable the
requirements of the methodology to be tailored to regional and site-specific
factors to ensure that management activities are appropriate and support adaptive
management. The extent to which a project plan is implemented (which may be
evidenced through reporting requirements) would also be relevant to the decision
whether to issue a biodiversity certificate for the project (see clause 70).
290. Subclause 45(8) would clarify that, in addition to the matters specified in clause 45, a
methodology determination would prescribe any other matters required or permitted by
the Bill to be prescribed by a methodology determination. For instance, clause 34 of the
Bill would allow a methodology determination to determine a registered biodiversity
project (or a kind of registered biodiversity project) has a longer or short permanence
period than the default 25-year or 100-year permanence period.
291. Subclause 45(9) is an avoidance of doubt provision. It would clarify that, without
limiting subsection 33(3A) of the AI Act, a methodology determination would be able
to make different provision in relation to different kinds of biodiversity projects covered
by the determination. For example, a methodology determination may set out
requirements that differ depending on the region in which the project area is located (see
note following subclause 45(9)).
292. Subclause 45(10) would override subsection 14(2) of the Legislation Act 2003
(Legislation Act) by allowing a methodology determination to make provision in
relation to a matter by applying, adopting or incorporating any written material (with or
without modification) as in force or existing from time to time. This is appropriate
because the types of materials that are likely to be incorporated by reference in a
methodology determination include international agreements or relevant standards that
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apply to biodiversity (or specific types of biodiversity) and which may be amended or
updated from time to time. A methodology determination would be able to incorporate
such agreements or standards as existing from time to time, which will ensure that
requirements in the determination derive from, or relate to, the most up to date version
of the document without the need to amend the determination to reflect an update in
those international agreements or standards. This approach will provide confidence in
the biodiversity market without compromising environmental standards, as it ensures
that the methodology determinations reflect the most up to date information and,
therefore, helps to ensure methodology determination are appropriate and fit for
purpose.
293. In allowing for the adoption of non-legislative instruments as existing from time to time,
consideration has been given to the fundamental principle of the Legislation Act, and of
access to justice, that people are easily able to understand their rights and obligations at
law. It is intended that any document incorporated by reference in a methodology
determination will be either made available on, or be accessible through, either the
Department's or the Regulator's website (as appropriate).
294. Additionally, in order to comply with paragraph 15J(2)(c) of the Legislation Act, the
explanatory statements for the methodology determinations will contain a description of
the relevant incorporated material and indicate how it may be obtained. This will
include details of where the list of the incorporated documents will be published.
295. Subclause 45(11) would provide that a methodology determination may make provision
in relation to a matter by conferring a power to make a decision of an administrative
character on the Regulator.
296. The note following subclause 45(11) would refer the reader to Part 20 of the Bill, which
deals with reviewable decisions. Clause 212 would allow a methodology determination
to provide that one or more administrative decisions made under that determination are
merits reviewable.
297. Subclauses 45(12) and (13) would have the combined effect that:
• the Minister would only be able to make a methodology determination if there is a
biodiversity assessment instrument (or instruments) in force that applies to that
methodology determination; and
• the methodology determination would be required to comply with any
requirements imposed by the relevant biodiversity assessment instrument (or
instruments) that apply to the methodology determination.
298. The purpose of these requirements is to ensure, so far as possible, appropriate
consistency in how methodology determinations measure and assess biodiversity
(including both a baseline and changes in biodiversity over time). A biodiversity
assessment instrument is intended to transparently set out consistent requirements for
how methodology determinations approach the assessment of baseline biodiversity and
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biodiversity outcomes for the project type. This would enable potential buyers to
compare some aspects of projects under different methodology determinations to
understand their relative value, and support scheme-level reporting of outcomes.
Clause 46 - Civil penalties - requirements in methodology determination
299. Clause 46 would impose two civil penalty provisions relating to compliance with
requirements in a methodology determination.
300. Subclause 46(1) would have the effect that an eligible person is liable for a civil penalty
if each of the following is satisfied:
• the eligible person is a project proponent of a registered biodiversity project for
which a biodiversity certificate has been issued (whether or not the certificate
remains in force); and
• the methodology determination that covers the project imposes specified
requirements to carry out activities in the project area, or to ensure that specified
activities are not carried out in the project area; and
• the eligible person, or any other project proponent for the project, fails to comply
with the requirement.
301. Subclauses 46(2) and (3) would have the combined effect that an eligible person is
liable for a civil penalty if each of the following is satisfied:
• the eligible person is a project proponent of a registered biodiversity project for
which a biodiversity certificate has been issued (whether or not the certificate
remains in force); and
• the methodology determination that covers the project requires the project
proponent for the project to ensure that an activity is not carried out in the project
area; and
• the activity is carried out in the project area by the project proponent or any other
person; and
• the eligible person does not take all reasonable steps to ensure that the prohibited
activity is not carried out in the project area.
302. The note after subclause 46(3) would explain that the defendant bears an evidential
burden in relation to showing that the eligible person did not take all reasonable steps to
ensure that the activity is not carried out in the project area. This is because section 96
of the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act)
provides that if a defendant wishes to rely on an exception to a civil penalty provision,
the defendant bears an evidential burden of proof in relation to that matter. This is
appropriate on the basis that knowledge of that matter would be peculiar to that person.
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In this case, it is appropriate that the defendant (the eligible person) bear the evidential
burden, as whether they took all reasonable steps to ensure the prohibited activity was
not carried out in the project area is a matter that is peculiarly within the knowledge of
the eligible person.
303. It is also appropriate for the project proponent to be liable for activities carried out by
other persons that breach the requirements of the methodology determination. This is
because the project proponent is responsible for the project, including for ensuring that
the project complies with the relevant methodology determination. This responsibility
would guard against project failure without consequence, which would undermine the
market created by the Bill.
304. The maximum civil penalty that would apply in these circumstances would be 2000
penalty units. The size of the maximum penalty is considered appropriate as a deterrent
to reflect the seriousness of failing to comply with the requirements specified in a
methodology determination. As this is a voluntary scheme, these civil penalty
provisions are aimed at protecting an emerging market that will facilitate tangible
environmental outcomes as well as a new income stream for participants. Failing to
comply with the requirements of a methodology determination may undermine the
integrity of this emerging market, which could in turn erode the confidence of trading
partners in the market and may therefore adversely impact market access. Such conduct
may also result in harm to biodiversity and environmental health more generally. The
consequence of non-compliant behaviour by one person may therefore impact the ability
of others, and of the environment, to benefit from the market in the future.
305. The civil penalty provisions in clause 46 would only apply to projects for which a
biodiversity certificate has been issued. This is appropriate, as it is the certificate stage
where the project will become part of the emerging market, which needs to be protected.
In contrast, where a biodiversity certificate has not yet been issued in respect of a
registered biodiversity project, the appropriate consequence for failure to comply with a
methodology determination may be a refusal to issue a biodiversity certificate or
cancellation of registration (on the basis that the project is not being carried out in a way
likely to result in a biodiversity certificate).
Clause 47 - Procedure for making a methodology determination
306. Clause 47 would set out the procedure that the Minister must follow when making a
methodology determination.
307. Before making a methodology determination, the Minister would be required to request
advice from the Nature Repair Market Committee about whether the Minister should
make the determination (subclause 47(2)). This is a key integrity measure for the Bill, as
it would ensure that the Minister has access to expert advice on whether the
methodology determination should be made (including whether the determination
complies with the biodiversity integrity standards).
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308. The note following subclause 47(2) would explain that the Nature Repair Market
Committee would be required to have regard to certain matters in giving advice to the
Minister, and refers the reader to clause 54 of the Bill which deals with these matters.
309. The combined effect of paragraph 47(1)(a) and subclauses 47(3) and (5) is that the
Minister would only be able to make a methodology determination if each of the
following criteria are met:
• the Nature Repair Market Committee has given the Minister advice in relation to
the making of the determination that includes a statement to the effect that the
Committee is satisfied that the determination complies with the biodiversity
integrity standards; and
• the Minister has had regard to the Committee's advice; and
• the Minister is satisfied that the determination complies with the biodiversity
integrity standards.
310. In other words, the critical issue for making a methodology determination would be
whether the proposed determination complies with the biodiversity integrity standards.
311. In practice, the Minister could only make a methodology determination if the Nature
Repair Market Committee has first advised that the proposed determination complies
with the biodiversity integrity standards. However, the Minister would also need to
themselves be satisfied that the proposed determination complies with the biodiversity
integrity standards. This requirement for double satisfaction is appropriate, as the
biodiversity integrity standards are the key mechanism for providing assurance (to the
Minister and the market) that the methodology determinations in force would provide
for projects that deliver biodiversity outcomes, and that information about those
outcomes could be relied on by those who are purchasing biodiversity certificates. The
biodiversity integrity standards would be set out in clause 57 of the Bill.
312. In addition to the mandatory requirements set out above, when making a methodology
determination, paragraph 47(1)(b) has the effect that the Minister would also be able to
have regard to the following matters:
• whether significant adverse environmental, agricultural, cultural, economic or
social impacts are likely to arise from the carrying out of the kind of project that
would be covered by the determination; and
• any other matters the Minister considers relevant.
313. These discretionary considerations would allow the Minister to take account of advice
received from persons other than the Nature Repair Market Committee where relevant
and appropriate.
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314. Subclause 47(4) would require the Minister to cause a copy of any advice received from
the Nature Repair Market Committee in relation to the proposed determination to be
published on the Department's website as soon as practicable after the Minister decides
to make, or not to make, a methodology determination. This requirement would ensure
there is appropriate transparency in relation to the Minister's decision.
315. Subclauses 47(6) and (7) would have the combined effect that if the Minister decides to
make a methodology determination, the Minister would be required to prepare a
statement of reasons for that decision, and publish the statement of reasons on the
Department's website, as soon as practicable after making the decision. These
requirements would ensure greater transparency about the Minister's decision.
316. Subclause 47(8) would clarify that subsection 33(3) of the AI Act would not apply to a
methodology determination. Subsection 33(3) of the AI Act has the effect that where an
Act confers a power to make, grant or issue any instrument of a legislative or
administrative character (including rules and determinations) the power shall be
construed as including a power to vary or revoke that instrument, in like manner and
subject to the like conditions. This means that the instrument maker would be required
to comply with the same pre-conditions as for making the instrument in the first place.
317. The effect of subclause 47(8) would be to turn off this power for varying or revoking a
methodology determination. This is because the Bill would contain express powers to
vary and revoke a methodology determination (clauses 48 and 51, respectively).
318. The note following subclause 47(8) would refer the reader to subdivisions B and C of
Division 2 of Part 4, which deal with varying and revoking a methodology
determination.
Subdivision B - Variation of methodology determinations
Clause 48 - Variation of methodology determinations
319. Clause 48 would deal with variations to methodology determinations.
320. Subclause 48(1) would provide the power for the Minister to, by legislative instrument,
vary a methodology determination.
321. Subclauses 48(2) to (9) would set out the procedure that the Minister must follow when
varying a methodology determination.
322. Similar to the procedure for making a methodology determination, before varying a
methodology determination the Minister would be required to request advice from the
Nature Repair Market Committee about whether the Minister should vary the
determination (subclause 48(3)). This is a key integrity measure for the Bill, as it would
ensure that the Minister has access to expert advice on whether the varied methodology
determination should be made (including whether the varied determination complies
with the biodiversity integrity standards).
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323. The note following subclause 48(3) would explain that the Nature Repair Market
Committee would be required to have regard to certain matters in giving advice to the
Minister, and refers the reader to clause 54 of the Bill which deals with these matters.
324. The exception to this requirement is minor variations, for which no advice from the
Committee is required (see subclause 48(8)). This is explained in the second note
following subclause 48(3).
325. The combined effect of paragraph 48(2)(a) and subclauses 48(4) and (6) is that the
Minister would only be able to vary a methodology determination if each of the
following criteria are met:
• the Nature Repair Market Committee has given the Minister advice in relation to
the proposed variation of the determination that includes a statement to the effect
that the Committee is satisfied that the determination (as varied) complies with the
biodiversity integrity standards; and
• the Minister has had regard to the Committee's advice; and
• the Minister is satisfied that the determination (as varied) complies with the
biodiversity integrity standards.
326. Again, these requirements would not apply to minor variations (see subclause 48(9)).
327. In other words, the critical issue for varying a methodology determination (other than a
minor variation) would be whether the proposed determination complies with the
biodiversity integrity standards. This aligns with making a methodology determination
under clause 47.
328. In practice, the Minister could only vary a methodology determination if the Nature
Repair Market Committee has first advised that the proposed determination (as varied)
complies with the biodiversity integrity standards. However, the Minister would also
need to themselves be satisfied that the varied determination complies with the
biodiversity integrity standards. This requirement for double satisfaction is appropriate,
as the biodiversity integrity standards are the key mechanism for providing assurance
(to the Minister and the market) that the methodology determinations in force would
provide for project that deliver biodiversity outcomes, and that information about those
outcomes could be relied on by those who are purchasing biodiversity certificates. The
biodiversity integrity standards would be set out in clause 57 of the Bill.
329. In addition to the mandatory requirements set out above, when varying a methodology
determination, paragraph 48(2)(b) has the effect that the Minister would also be able to
have regard to the following matters:
• whether significant adverse environmental, agricultural, cultural, economic or
social impacts are likely to arise from the carrying out of the kind of project that
would be covered by the determination; and
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• any other matters the Minister considers relevant.
330. These discretionary considerations would allow the Minister to take account of advice
received from persons other than the Nature Repair Market Committee where relevant
and appropriate.
331. Subclause 48(5) would require the Minister to cause a copy of any advice received from
the Nature Repair Market Committee in relation to the proposed determination to be
published on the Department's website as soon as practicable after the Minister decides
to vary, or not to vary, a methodology determination. This requirement would ensure
there is appropriate transparency in relation to the Minister's decision.
332. Again, these requirements would not apply to minor variations (see subclause 48(9)).
333. Subclauses 48(7) and (8) would have the combined effect that if the Minister decides to
vary a methodology determination, the Minister would be required to prepare a
statement of reasons for that decision, and publish the statement of reasons on the
Department's website, as soon as practicable after making the decision. These
requirements would ensure greater transparency about the Minister's decision
334. Subclause 48(9) would provide that the requirements in subclauses 48(3) to (5) and
48(7) do not apply to minor variations. It is intended that a minor variation would
generally be a variation that results in no substantive change to the determination - for
example, to correct a typographical error. In such circumstances, the requirements in
subclauses 48(3) to (5) and 48(7) are considered unnecessary and inappropriate.
Clause 49 - When variation takes effect
335. Clause 49 would set out when a variation to a methodology determination would take
effect and how the variation would apply to existing registered biodiversity projects.
336. Subclause 49(1) would make it clear that a variation to a methodology determination
would take effect on the day after the variation instrument is registered or, if the
instrument specifies a later commencement day, on that later day.
337. Subclauses 49(2) to (4) would contain three rule-making powers concerning the
consequences of a variation to a methodology determination on existing registered
biodiversity projects.
338. The effect of subclause 49(2) would be to allow the rules to prescribe circumstances in
which the variation of a methodology determination would apply to a registered
biodiversity project that is covered by the methodology determination. The rules would
achieve this by specifying conditions that, if satisfied by an existing project, would
result in that project being subject to the varied methodology determination.
339. The effect of subclause 49(3) would be to allow the rules to prescribe circumstances in
which the variation of a methodology determination would not apply to a registered
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biodiversity project that is covered by the methodology determination. The rules would
achieve this by specifying conditions that, if satisfied by an existing project, would
result in that project not being subject to the varied methodology determination.
340. Where an existing registered biodiversity project is not subject to the varied
methodology determination, that project would still be covered by the original
methodology determination (as it was in effect prior to the variation) - unless and until
the project proponent applies to vary the registration of the project to change the
methodology determination that covers the project.
341. Rules made for the purposes of subclause 49(4) would be able to provide a process for
the Regulator to approve, on application from the project proponent, that a variation of a
methodology determination should not apply to an existing registered biodiversity
project. The rules would achieve this by empowering the Regulator to approve an
application by the project proponent if specified conditions are met.
342. It is intended that the rule-making powers in subclauses 49(2) and (3) would be used,
respectively, to set the general (default) rules about when a variation to a methodology
determination would, and would not, apply to an existing registered biodiversity project.
343. The rule-making power in subclause 49(4) would then be able to provide a process for a
project proponent to apply, on a case-by-case basis, for their project not to be subject to
a variation of a methodology determination (in circumstances where the project would
otherwise have been subject to the variation, under rules made for the purpose of
subclause 49(2)). If the Regulator approves the application, the project would continue
to be covered by the original methodology determination, as it was in effect prior to the
variation.
344. It is not necessary for the rules to provide for a process for project proponents to be able
to apply for their existing project to be covered by the varied methodology
determination (in circumstances where the project would otherwise have not been
subject to the variation, under rules made for the purpose of subclause 49(3)). This is
because the varied methodology determination would be in effect from the
commencement of the variation instrument - which means the project proponent would
be able to apply, under rules made for the purposes of clause 20 of the Bill, to vary their
project's registration to change the methodology determination that covers the project.
This would be explained by the note following subclause 49(4).
345. It is appropriate that the consequences of a variation of a methodology determination on
existing registered biodiversity projects covered by that methodology determination are
set out in the rules. This is because the conditions that would need to be satisfied for an
existing registered biodiversity project to be subject to (or not subject to) a variation of a
methodology determination may need to be tailored to specific kinds of projects, in
order to ensure they are fit for purpose and ensure that biodiversity continues to be
protected or enhanced to the greatest extent possible. However, the criteria set out at
subclauses 49(2) to (4) would set appropriate parameters in the Bill that the Minister
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would need to comply with when making such rules. The rules would be subject to
ordinary Parliamentary scrutiny processes, including disallowance and sunsetting.
346. Subclause 49(5) would allow the rules to make provision for and in relation to the
following matters relating to an application under rules made for the purpose of
subclause 49(4):
• the approval by the Regulator of a form for such an application (including
requirements for verification of statements in the application);
• information or documents that must accompany such an application;
• the fee (if any) that must accompany such an application;
• the withdrawal of such an application;
• requirements for requesting further information from an applicant;
• the power for the Regulator to refuse to consider, or to take any action (or any
further action) in relation to, an application if requested further information is not
provided.
347. Subclause 49(6) would make it clear that any fee imposed for such an application must
not be such as to amount to taxation.
348. Subclauses 49(7) and (8) would deal with the effect of a variation to a methodology
determination on an application under clause 11 of the Bill for approval to register a
biodiversity project that:
• has been made, but not finalised, at the time the variation commences; and
• proposes that the project will be covered by the methodology determination.
349. Subclause 49(7) would have the effect that, in these circumstances, the Regulator would
be required to assess the application as if the application proposes that the varied
methodology determination will cover the project.
350. Similarly, if the project is registered, it would be covered by the varied methodology
determination (unless and until the project proponent applies to vary the registration of
the project to change the methodology determination that covers the project). There
would be no ability for a project covered by the original determination to be newly
registered after the variation commences.
351. Subclause 49(8) would allow the rules to provide for the Regulator to notify an eligible
person that an application they have made under clause 11 of the Bill to register a
biodiversity project is affected by a variation to the methodology determination that is
proposed to cover the project, and to give the person an opportunity to withdraw or vary
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the application before the Regulator makes a decision. This would provide applicants
with an opportunity to assess whether they are happy for the varied methodology
determination to cover the project or, potentially, to change the methodology
determination that is proposed to cover the project to another methodology
determination that is in effect.
352. Subclause 49(9) would require the Regulator to, on behalf of the Commonwealth,
refund any application fee the applicant has paid in respect of an application for
approval of the registration of a biodiversity project that is withdrawn under rules made
for the purposes of subclauses 49(5) or (8).
Subdivision C - Duration, expiry and revocation of methodology determinations
Clause 50 - Duration of methodology determinations
353. Clause 50 would provide for the duration of methodology determinations.
354. Paragraph 50(1)(a) would deal with when a methodology determination comes into
force. The default commencement for a methodology determination would be the day
after it is registered on the Federal Register of Legislation. However, the determination
itself would be able to specify a later commencement date - if it does, the determination
would commence at the time specified in the determination.
355. Paragraph 50(1)(b) would deal with how long a methodology determination will be in
force. A methodology determination would remain in force (if not disallowed or
sunsetted under the Legislation Act) until the earliest of the following:
• if a period is specified in the methodology determination itself - the end of that
period;
• if the Minister makes a legislative instrument that specifies a period for the
methodology determination to remain in force - the end of that period;
356. For a methodology determination to cease effect at any other date, the Minister would
need to exercise the power in clause 51 to revoke the determination (and would need to
comply with the procedural requirements in that clause before doing so).
357. Subclause 50(2) would remove any doubt that if a methodology determination ceases to
be in force, the Minister would still be able to make a new (fresh) methodology
determination in the same terms as the determination that has ceased to be in force.
Clause 51 - Revocation of methodology determinations
358. Clause 51 would allow the Minister, by legislative instrument, to revoke a methodology
determination. However, before doing so, the Minister would be required to:
• request advice from the Nature Repair Market Committee about whether the
Minister should revoke the determination (subclause 51(2)); and
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• have regard to certain matters, being whether the determination complies with the
biodiversity integrity standards, the advice given by the Nature Repair Market
Committee on whether the Minister should revoke the determination and any
other matters the Minister considers relevant (subclause 51(3)).
359. The note following subclause 51(2) would explain that the Nature Repair Market
Committee would be required to have regard to certain matters in giving advice to the
Minister, and would direct the reader to clause 54 of the Bill.
360. Subclause 51(4) would have the effect that, regardless of whether the Minister decides
to revoke or not revoke the methodology determination, the Minister would be required,
as soon as practicable after making the decision, to cause a copy of the Nature Repair
Market Committee's advice to be published on the Department's website. This
requirement would ensure there is appropriate transparency in relation to the Minister's
decision.
361. Subclauses 51(5) and (6) would have the combined effect that if the Minister decides to
revoke a methodology determination, the Minister would be required to prepare a
statement of reasons for that decision, and publish the statement of reasons on the
Department's website, as soon as practicable after making the decision. These
requirements would ensure greater transparency about the Minister's decision.
Clause 52 - Consequences of methodology determination ceasing to have effect
362. Clause 52 would set out the consequences of a methodology determination ceasing to
have effect on existing registered biodiversity projects that are covered by the ceased
determination.
363. The default consequence would be that the ceased methodology determination would no
longer apply to the existing project. This is because the methodology determination
would no longer have any legal effect.
364. It is intended that, in these circumstances, the ordinary course of action would be for the
project proponent for an existing registered biodiversity project to apply, under rules
made for the purposes of clause 20 of the Bill, to vary the project's registration to
change the methodology determination that covers the project.
365. However, there may be some circumstances where it is appropriate for the ceased
methodology determination to continue to apply to an existing project. An example
might be where there is no other methodology determination in effect that would be
relevant to the kind of project and the project proponent is able to satisfy the Regulator
that it is appropriate for the project to continue under the scheme.
366. The effect of subclause 52(1) would be to allow the rules to prescribe circumstances in
which a ceased methodology determination would continue to apply to an existing
registered biodiversity project. The rules would achieve this by specifying conditions
that, if satisfied by an existing project, would result in that project continuing to be
covered by the ceased methodology determination (as if it had not ceased).
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367. Rules made for the purposes of subclause 52(2) would be able to provide a process for
the Regulator to approve, on application from the project proponent, that a ceased
methodology determination should continue to apply to an existing registered
biodiversity project. The rules would achieve this by empowering the Regulator to
approve an application by the project proponent if specified conditions are met.
368. It is intended that the rule-making power in subclause 52(1) would be used to set the
general (default) rules about when a ceased methodology determination would continue
to apply to an existing registered biodiversity project.
369. The rule-making power in subclause 52(2) would then be able to provide a process for a
project proponent to apply, on a case-by-case basis, for their project to continue to be
covered by a ceased methodology determination - in circumstances where the project
would otherwise not be covered by the rules made for the purpose of subclause 52(1). If
the Regulator approves the application, the project would continue to be covered by the
ceased methodology determination, as if it had not ceased.
370. It is appropriate that the requirements for when a ceased methodology determination
continues to apply to existing registered biodiversity projects are set out in the rules.
This is because the conditions that would need to be satisfied for an existing registered
biodiversity project to continue to be covered by a ceased methodology determination
may need to be tailored to specific kinds of projects, in order to ensure they are fit for
purpose and to ensure that biodiversity continues to be protected or enhanced to the
greatest extent possible. However, the criteria set out at subclauses 52(1) and (2) would
set appropriate parameters in the Bill that the Minister would need to comply with when
making such rules. The rules would be subject to ordinary Parliamentary scrutiny
processes, including disallowance and sunsetting.
371. Subclause 52(3) would allow the rules to make provision for and in relation to the
following matters relating to an application under rules made for the purpose of
subclause 52(2):
• the approval by the Regulator of a form for such an application (including
requirements for verification of statements in the application);
• information or documents that must accompany such an application;
• the fee (if any) that must accompany such an application;
• the withdrawal of such an application;
• requirements for requesting further information from an applicant;
• the power for the Regulator to refuse to consider, or take any action (or any
further action) in relation to, an application if requested further information is not
provided.
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372. Subclause 52(4) would make it clear that any fee imposed for such an application must
not be such as to amount to taxation.
373. Subclause 52(5) would require the Regulator, on behalf of the Commonwealth, to
refund any application fee the applicant has paid in respect of an application for
approval of the registration of a biodiversity project that is withdrawn under rules made
for the purposes of subclause 52(3).
374. Subclause 52(6) would allow the rules to make provision for and in relation to
empowering the Regulator to unilaterally vary the registration of an existing registered
biodiversity project to change the methodology determination that covers the project if:
• the methodology determination that covers the project ceases to have effect; and
• the conditions specified in the rules are satisfied.
375. It is intended that rules made for the purpose of subclause 52(6) would be used to ensure
that the Regulator could change the methodology determination that covers the project
in the event that the determination ceases and both:
• the project proponent does not apply (under rules made for the purposes of clause
20) to vary the project's registration to change the methodology determination
covering the project;
• the ceased methodology determination would not continue to cover the project
under rules made for the purposes of subclauses 52(1) or (2).
376. This would ensure that, following the ceasing of the relevant methodology
determination, the project would not be left without a methodology determination to
cover it.
377. It is appropriate that the requirements for when the Regulator can unilaterally vary the
registration of a registered biodiversity project to change the methodology
determination that covers the project are set out in rules. This is because the conditions
that would need to be satisfied may need to be tailored to specific kinds of projects, in
order to ensure they are fit for purpose and to ensure that biodiversity continues to be
protected or enhanced to the greatest extent possible. However, the criteria set out at
subclause 52(6) would set appropriate parameters in the Bill that the Minister would
need to comply with when making such rules. The rules would be subject to ordinary
Parliamentary scrutiny processes, including disallowance and sunsetting.
Clause 53 - Effect of methodology determination ceasing to have effect - applications
for registration
378. Clause 53 would require the Regulator to refuse to register a biodiversity project if the
methodology determination that covers the project (as specified in the application for
registration) ceases to have effect before the project is registered (subclauses 53(1) and
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(2)). This is appropriate, as all registered biodiversity projects would be required to be
covered by a methodology determination.
379. The rule would be able to provide for the Regulator to notify the applicant that the
Regulator proposes to refuse the application on the basis that the methodology
determination specified in the application has ceased to have effect. The rules would
also be able to provide for the Regulator to give the applicant an opportunity to either
withdraw or vary the application before the Regulator refuses the application. Where an
application is withdrawn in such circumstances and a fee has been paid in relation to the
application, the Regulator would be required, on behalf of the Commonwealth, to refund
the application fee (subclauses 53(3) and (4)).
380. The rules would also, for example, be able to detail the requirements of the Regulator in
relation to notification or the timeframe in which an eligible person may nominate
withdrawal or variation of an application, or how a fee would be refunded. It is
appropriate that these requirements be provided in the rules, as it may be necessary to
tailor different requirements to different kinds of methodology determinations or
biodiversity projects. The rules would be subject to ordinary Parliamentary scrutiny
processes, including disallowance and sunsetting.
Subdivision D - Advice about making, varying or revoking methodology determinations
Clause 54 - Advice by the Nature Repair Market Committee
381. Clause 54 would set out requirements that apply to the Nature Repair Market
Committee when the Minister requests the Committee's advice on whether the Minister
should make, vary or revoke a methodology determination (under, respectively,
subclauses 47(2), 48(3) or 51(2) of the Bill).
382. The requirements in this clause would need to be read in conjunction with the additional
requirements in clause 56 of the Bill (concerning public consultation) - which would
also apply to the Committee's advice to the Minister whether to make or vary a
methodology determination. This would be referenced in the note following subclause
54(2).
383. Subclause 54(2) would require the Nature Repair Market Committee to give the
requested advice to the Minister. This means that the Committee would not have any
discretion in whether to provide advice on making, varying or revoking a methodology
determination if requested by the Minister to do so.
384. In providing the requested advice to the Minister, the Committee would be able to
obtain advice from other persons with expertise relevant to the functions of the
Committee (see clause 196).
385. Subclauses 54(3) to (5) would require Committee to include certain matters in their
advice.
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386. Under subclauses 54(3) and (4), where the advice concerns whether the Minister should
make or vary a methodology determination, the Committee would be required to include
the following matters in their advice:
• if the Committee is satisfied that the proposed determination (or the determination
as proposed to be varied) complies with each of the biodiversity integrity
standards - a statement to that effect, the reasons why the Committee is so
satisfied, and any dissenting opinions by Committee members (and the reasons
thereof);
• if the Committee is not satisfied that the proposed determination (or the
determination as proposed to be varied) complies with each of the biodiversity
integrity standards - a statement to that effect and the reasons why the Committee
is not satisfied;
• any other information required by the rules.
387. Under subclause 54(5), where the advice concerns whether the Minister should revoke a
methodology determination, the Committee would be required to include in their advice
a statement setting out the Committee's opinion about whether the determination should
be revoked, the reasons for the opinion and any other matters required by the rules.
388. As noted above, clauses 47 and 48 would have the effect that the Minister would only
be able to make or vary a methodology determination if (relevantly) the Committee has
included a statement in its advice to the effect that the Committee is satisfied that the
proposed determination (or the determination as proposed to be varied) complies with
the biodiversity integrity standards. In addition, clauses 47, 48 and 51 would require the
Committee's advice to be published on the Department's website. The requirement to
include these statements and opinions, and the reasons for the statements and opinions,
are intended to promote transparency around the Minister's decision. This is because the
public would be able to see the Committee's views (and reasons for those views) and
compare them to the Minister's ultimate decision.
389. Subclause 54(6) would set out the mandatory considerations for the Committee when
giving advice to the Minister concerning whether the Minister should make, vary or
revoke a methodology determination. These matters would be:
• the biodiversity integrity standards;
• any relevant matters specified in a direction in force under clause 55;
• any relevant advice given by the Regulator to the Committee;
• any other matters required by the Rules.
390. Subclause 54(7) would clarify that subclause 54(6) would not limit the matters to which
the Committee may have regard when giving the requested advice to the Minister. This
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means the Committee would also be able to consider other matters the Committee
considers relevant.
Clause 55 - Additional matters for the Nature Repair Market Committee to take into
account
391. Clause 55 would allow the Minister, by legislative instrument, to direct the Nature
Repair Market Committee to have regard to one or more specified matters when giving
advice about the making, varying or revoking of a methodology determination.
392. The purpose of enabling such directions is so that the Minister can be assured that the
Nature Repair Market Committee are considering all relevant matters when providing
their advice, including matters that may only be relevant to a particular methodology
determination (or a particular class of methodology determinations). This might include
requiring the Committee to have regard to matters such as potential adverse social,
environmental, cultural or economic impacts, or the consistency of the proposed
methodology determination with broader government policy and programs.
393. As it would be in the form of a legislative instrument, any such directions would be
transparent and publicly available.
394. The note following clause 55 would explain that a legislative instrument made for the
purposes of clause 55 would not be subject to disallowance or sunsetting under the
Legislation Act. This is because legislative instruments that are directions are:
• exempt from disallowance by Parliament under item 12 of the table in section 9 of
the Legislation (Exemption and Other Matters) Regulation 2015 (LEOM
Regulation); and
• exempt from sunsetting under item 3 of the table in section 11 of the LEOM
Regulation.
Subdivision E - Consultation by the Nature Repair Market Committee
Clause 56 - Consultation by the Nature Repair Market Committee
395. Clause 56 would set out the public consultation requirements for the Nature Repair
Market Committee relating to methodology determinations.
396. Subclauses 56(1) and (2) would have the combined effect that the Committee would
only be able to advise the Minister whether to make or vary a methodology
determination if the Committee has first:
• published on the Department's website a detailed outline of the proposed
determination or variation (as the case may be) and a notice inviting the public to
make a submission to the Committee on the detailed outline within a specified
period of at least 28 days after the notice is published; and
• considered any relevant submissions that were received in the specified period.
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397. However, the Committee would have the power to shorten the time period to no less
than 14 days if it considers doing so appropriate in the circumstances (subclause 56(3)).
398. Consultation on proposed methodology determinations or variations to methodology
determinations would allow issues to be raised by stakeholders, scientific experts and
landholders and incorporated into the Committee's advice and the final determinations,
where appropriate.
399. The Committee would be required to publish, on the Department's website, any relevant
submissions received in response to a notice under subclause 56(1) (subclause 56(4)).
400. However, under subclauses 56(5) and (6), the Committee would be required to not
publish a particular submission if satisfied that publication could reasonably be expected
to substantially prejudice biodiversity or indigenous cultural heritage. The Committee
would be able to exercise this power unilaterally or on the request of the person making
the submission. Any such request would be required to be made in writing and in a form
approved, in writing, by the Committee (subclause 56(7)).
Division 3 - Biodiversity integrity standards
Clause 57 - Biodiversity integrity standards
401. Clause 57 would set out the biodiversity integrity standards.
402. The biodiversity integrity standards are intended to ensure that, through its methodology
determinations, the scheme under the Bill only rewards genuine and verifiable
protection or enhancement of biodiversity in native species (including by requiring
additionality) - so that certificates are only issued for biodiversity protection or
enhancement that would not normally have occurred and, therefore, provides a genuine
environmental benefit.
403. As noted above, the reference to biodiversity in native species is intended to include
diversity within and between native species as well as diversity of ecosystems on which
native species depend upon and inhabit. The purpose of referring to biodiversity in
native species is to clarify that projects are not to be focused on the enhancement or
protection of non-native species.
404. The Minister would only be able to make or vary a methodology determination if,
among other things, the Committee provides advice that includes a statement that it is
satisfied that the proposed determination (or varied determination) complies with the
biodiversity integrity standards (see clauses 47 and 48).
405. There would be ten biodiversity integrity standards that a methodology determination
would need to comply with, falling into three separate categories: integrity standards
relating to project design and delivery, integrity standards relating to biodiversity
assessment, and integrity standards relating to biodiversity information on the register
and certificates.
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Integrity standards relating to project design and delivery
406. The first group of integrity standards require that methodology determinations will
ensure that projects carried out in accordance with the methodology determination are
designed to deliver, or prevent, certain outcomes.
407. Delivering biodiversity outcomes: the first biodiversity integrity standard would be
that a biodiversity project carried out in accordance with the methodology determination
must be designed to result in enhancement or protection of biodiversity in native species
(whether the effect on biodiversity occurs within or outside the project area) that would
be unlikely to occur if the project is not carried out (paragraph 57(1)(a)).
408. The purpose of this standard is to ensure that methodology determinations require
projects to demonstrate that the project is designed to deliver biodiversity outcomes that
would not have happened anyway. It is expected that the interpretation of this standard
would vary depending on the nature of the methodology. More evidence of outcomes
being additional would be expected for some methodologies.
409. Matters that could be considered under this standard include that activities leading to
biodiversity outcomes would need to go beyond what would normally be expected, that
the project is only being carried out due to the incentive provided by the scheme, or that
the project will provide an incentive to undertake activities to maintain or improve
existing biodiversity that have not been financially viable before.
410. The market has been designed to enable carbon credits and biodiversity certificates to be
generated from the same project area ('stacked'). Multiple biodiversity projects may
also be undertaken on the same area of land, if they are associated with new activities
delivering additional biodiversity outcomes. In practice, to meet this standard,
methodology determinations would need to demonstrate that projects consistent with
that methodology determination would only assess and describe biodiversity outcomes
generated by that project, as distinct from other projects on the same area (i.e. avoid
'double-counting').
411. Preventing adverse impacts: The second biodiversity integrity standard would be that
a biodiversity project carried out in accordance with the methodology determination
must be designed to prevent the project from having a significant adverse impact on
biodiversity in a native species that is protected under a Commonwealth law or a
relevant State or Territory law (paragraph 57(1)(b)).
412. The purpose of this standard is to ensure that methodology determinations do not allow
one kind of native species to be protected at the expense of another kind of native
species that is protected under Australian law. For example, the methodology
determination could not allow activities that focused on the protection of flying foxes if
the result would be a significant adverse impact on a local koala population.
413. Appropriate to the project area: The third biodiversity integrity standard would be
that a biodiversity project carried out in accordance with the methodology determination
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must be designed to achieve enhancement or protection of biodiversity in native species
that is appropriate to the project area (paragraph 57(1)(c)).
414. The purpose of this standard is to ensure that methodology determinations do not allow
projects to be directed at protecting or enhancing biodiversity in inappropriate habitats
for the native species involved. For example, a methodology determination would not
comply with this standard if it permitted a project directed at enhancing habitat for
koalas by planting woodland species where a rainforest previously existed.
415. A methodology determination may not comply with this standard if it did not consider
how climate change is likely to impact biodiversity in the project area and require
projects to be designed to account for this where appropriate. This may include a
requirement in certain areas or for certain ecosystem types to collect genetically diverse
material for use in revegetation to enhance a species' adaptive potential.
Integrity standards relating to biodiversity assessment
416. Measurable and verifiable: The fourth biodiversity integrity standard would be that a
biodiversity project carried out in accordance with the methodology determination must
be designed to achieve enhancement or protection that is of biodiversity in native
species and that can be measured, assessed or verified (paragraph 57(1)(d)). The
purpose of this standard is to ensure that methodology determinations require projects to
be able to appropriately measure, assess and verify the progress towards the project's
intended biodiversity outcomes.
417. Informed assessment: The fifth, sixth and seventh biodiversity integrity standards
would relate to conditions set out in, or requirements imposed by, the methodology
determination in accordance with subclauses 45(5) and (6) of the Bill. These conditions
and requirements would relate to the measurement or assessment of the enhancement or
protection of biodiversity and:
• for conditions - would need to be met by projects in order for the project to be
registered, for an application for a biodiversity certificate to be made for the
project, and for a biodiversity certificate to be issued for the project;
• for requirements - would involve notification requirements, reporting
requirements and monitoring requirements.
418. Paragraph 57(1)(e) would require any conditions or requirements included in the
methodology determination to:
• be supported by clear and convincing evidence. This may include evidence from a
broad range of sources such as (but not limited to) Indigenous knowledge, peer
reviewed scientific literature, the most up to date and best-practice guidelines,
principles, standards, statutory documents (such as threat abatement plans,
recovery strategies and conservation advices), scientific data, expert elicitation
processes and documented expertise of practitioners in biodiversity enhancement
and protection;
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• so far as reasonably practicable, be consistent with relevant Indigenous knowledge
and values relating to biodiversity and cultural heritage;
• be consistent with enhancement or protection of biodiversity that is appropriate to
the project area;
• enable, as appropriate, adaptive management to achieve the enhancement or
protection of biodiversity. An example of adaptive management is including
project level monitoring requirements and associated triggers for modifying
activities when restoration is not proceeding as planned;
• require a clear indication of the level of certainty and confidence of achievement
of the enhancement or protection of biodiversity. Confidence generally relates to
the validity of a finding, based on the type, amount, quality, and consistency
across multiple sources of evidence (e.g. theory, data, models, expert judgment,
practitioner advice, traditional ecological knowledge) and the degree of
agreement. Confidence is usually expressed qualitatively. In contrast, certainty
generally relates to quantified measures of uncertainty, for example the likelihood
of something occurring. This could be based on a range of evidence including
statistical analysis of observations or model results, or expert judgment.
419. Transparent assumptions: Paragraphs 57(1)(f) and (g) would have the effect that, to
the extent that any condition or requirement imposed by the methodology determination
involves an estimate or projection, the methodology determination must require the
estimate to be conservative, and must also require the disclosure of the assumptions and
methods used to make the estimate or projection and the level of certainty of the
estimate or projection.
420. The purpose of the standards in paragraphs 57(1)(e), (f) and (g) is to ensure that
conditions and requirements relating to the enhancement or protection of biodiversity
that are imposed on projects covered by the methodology determination are evidence
based, appropriate, transparent and likely to result the biodiversity outcome for the
project being achieved (so that the project provides a genuine environmental benefit).
Integrity standards relating to biodiversity information on the register and certificates
421. Evidence-based statements: The eighth and ninth biodiversity integrity standards
would relate to any statements or information that could be included in an entry in the
Register, or in a biodiversity certificate issued, for a project covered by the methodology
determination. Paragraph 57(1)(h) would require a methodology determination to ensure
that such statements or information would be supported by clear and convincing
evidence. As noted above, this may include evidence from a broad range of sources
such as (but not limited to) Indigenous knowledge, peer reviewed scientific literature,
the most up to date and best-practice guidelines, principles, standards, statutory
documents (such as threat abatement plans, recovery strategies and conservation
advices), scientific data, expert elicitation processes and documented expertise of
practitioners in biodiversity enhancement and protection.
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422. Reasonably certain: Paragraph 57(1)(i) would have the effect that, to the extent that
any such statements or information would involve an estimate, projection or
assumption, the methodology determination would need to ensure that the estimate,
projection or assumption would be reasonably certain.
423. The standards at paragraphs 57(1)(h) and (i) are intended to ensure that the Register and
biodiversity certificates only contain information about projects that is evidence-based
and that is not based on unsupported or unreasonable estimates, projections or
assumptions. This is so participants can have confidence in the market and in the
protection or enhancement of biodiversity provided by the project.
424. The tenth biodiversity integrity standard would be that the methodology determination
meets any other standards that are prescribed by the rules. It is appropriate that the Bill
provides for additional biodiversity integrity standards to be set out in the rules
(paragraph 57(1)(j)). This is because advances in technology over the length of projects
(which could last for many decades) may necessitate further standards be added in the
future to ensure integrity is maintained.
425. Subclause 57(2) would clarify that the rule-making power in paragraph 57(1)(j) would
not be limited by the other paragraphs in subclause 57(1).
Division 4 - Biodiversity assessment instruments
Subdivision A - Making of biodiversity assessment instruments
Clause 58 - Biodiversity assessment instruments
426. Clause 58 would allow the Minister, by legislative instrument, to prescribe requirements
that methodology determinations must comply with (subclause 58(1)). An instrument
made for the purposes of subclause 58(1) would be known as a biodiversity assessment
instrument (subclause 58(2)).
427. The purpose of a biodiversity assessment instrument is to achieve appropriate
consistency in how methodology determinations measure and assess biodiversity
(including both a baseline and changes in biodiversity over time). This reflects the fact
that a key policy for the design of the Bill is to provide a nationally consistent approach
to measuring and assessing biodiversity - which will, among other things, enable
market participants (e.g. potential buyers) to be able to compare projects developed
under different methodology determinations in terms of the project's impact (or likely
impact) on biodiversity.
428. Subclause 58(3) would make it clear that a biodiversity assessment instrument may
prescribe requirements for methodology determinations relating to:
• the measurement or assessment of biodiversity;
• the measurement or assessment of the enhancement of biodiversity; or
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• the measurement or assessment of the protection of biodiversity.
429. These would be non-exhaustive examples of potential requirements. It is intended that a
biodiversity assessment instrument may include all or any of the following, as
appropriate:
• requirements relating to standard terminologies, measurements or interpretations.
This might include standard terms and definitions (including how project
attributes, and locations in a project area, are described) but might also include
rules concerning the interpretation of broader concepts relating to biodiversity.
• factors that must be considered when determining how biodiversity and changes
in biodiversity in projects covered by a methodology determination will be
measured and assessed;
• requirements relating to the incorporation of documents (including environmental
standards that relate to biodiversity or to specific elements of biodiversity) into a
methodology determination. This could include the need to consider existing
documents relating to biodiversity at a local or landscape level, such as regional
natural resource management plans, Healthy Country Plans, threat abatement
plans or bioregional plans;
• requirements relating to how scientific uncertainty is dealt with in the
methodology determination, in relation to measuring or assessing biodiversity;
• requirements relating to the imposition of reporting, notification or monitoring
requirements concerning biodiversity or changes in biodiversity for projects
covered by the methodology determination. This may include standard reporting,
notification or monitoring requirements relating to biodiversity or changes in
biodiversity;
• any other matter relating to the measurement or assessment of biodiversity, or the
protection or enhancement of biodiversity, that the Minister considers appropriate.
430. Subclause 58(4) would have the effect that a biodiversity assessment instrument may
prescribe requirements that apply to all methodology determinations, or just to a
specified class of methodology determinations.
431. For example, it may be appropriate for a biodiversity assessment instrument to prescribe
standard terminologies, interpretation or factors that are required to be used in
methodology determinations dealing with water-based projects, but that are not
appropriate to apply for land-based projects. Alternatively, other requirements relating
to the measurement or assessment of biodiversity may be appropriate to apply to all
methodology determinations.
432. Subclause 58(5) would clarify that subclause 58(4) would not, by implication, limit
subsection 33(3A) of the AI Act. Subsection 33(3A) of the AI Act relevantly provides
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that when an Act power to make a legislative instrument with respect to particular
matters, the power shall be construed as including a power to make such an instrument
with respect to some only of those matters, or with respect to a particular class or
particular classes of those matters, and to make different provision with respect to
different matters or different classes of matters.
433. It is intended that a biodiversity assessment instrument would guide the development of
the information in the methodology determination (or a class of methodology
determinations) that defines the attributes of a project relating to biodiversity and,
potentially, the information that is included on the Register or in a biodiversity
certificate relating to biodiversity. It would provide the emerging market with
information they can have confidence in concerning the activities and outcomes of a
project.
434. As such, in combination with the biodiversity integrity standards (see clause 57), it
would be a key measure for ensuring integrity in the scheme established by the Bill.
Clause 59 - Procedure for making a biodiversity assessment instrument
435. Clause 59 would set out the procedure that the Minister must follow when making a
biodiversity assessment instrument.
436. Before making a biodiversity assessment instrument, the Minister would be required to
request advice from the Nature Repair Market Committee about whether the Minister
should make the instrument (subclause 59(2)).
437. The note following subclause 59(2) would explain that the Nature Repair Market
Committee would be required to have regard to certain matters in giving advice to the
Minister and refers the reader to clause 64 of the Bill which deals with these matters.
438. The combined effect of paragraph 59(1)(a) and subclause 59(3) is that the Minister
would only be able to make a biodiversity assessment instrument if each of the
following criteria are met:
• the Nature Repair Market Committee has given the Minister advice in relation to
the proposed instrument that includes a statement to the effect that the Committee
is satisfied that the instrument:
i. is an appropriate means of achieving consistency of methodology
determinations (or methodology determinations in a particular class); and
ii. would assist in ensuring that methodology determinations (or methodology
determinations in that class) comply with the biodiversity integrity
standards; and
• the Minister has had regard to the Committee's advice.
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439. In other words, the critical issue for making a biodiversity assessment instrument would
be whether the proposed instrument is an appropriate means of achieving consistency of
methodology determinations, and would assist in ensuring that methodology
determinations comply with the biodiversity integrity standards. The biodiversity
integrity standards would be set out in clause 57 of the Bill.
440. In addition to the mandatory requirements set out above, when deciding whether to
make a biodiversity assessment instrument, paragraph 59(1)(b) would have the effect
that the Minister would also be able to have regard to any other matters the Minister
considers relevant.
441. This would allow the Minister to take account of advice received from persons other
than the Nature Repair Market Committee where relevant and appropriate.
442. Subclause 59(4) would require the Minister to cause a copy of any advice received from
the Nature Repair Market Committee to be published on the Department's website as
soon as practicable after the Minister decides to make, or not make, a biodiversity
assessment instrument. This requirement would ensure there is appropriate transparency
in relation to the Minister's decision.
443. Subclauses 59(5) and (6) would have the combined effect that if the Minister decides to
make a biodiversity assessment instrument, the Minister would be required to prepare a
statement of reasons for that decision, and publish the statement of reasons on the
Department's website, as soon as practicable after making the decision. These
requirements would ensure greater transparency about the Minister's decision.
444. Subclause 59(7) would clarify that subsection 33(3) of the AI Act does not apply to a
biodiversity assessment instrument. Subsection 33(3) of the AI Act has the effect that
where an Act confers a power to make, grant or issue any instrument of a legislative or
administrative character (including rules and determinations) the power shall be
construed as including a power to vary or revoke that instrument, in like manner and
subject to like conditions. This means that the instrument maker would be required to
comply with the same pre-conditions as for making the instrument in the first place.
445. The effect of subclause 59(7) would be to turn off this power for varying or revoking a
biodiversity assessment instrument. This is because the Bill would contain express
powers and requirements to vary and revoke a methodology determination (clauses 60,
61 and 62).
446. The note following subclause 59(7) would refer the reader to subdivisions B and C of
Division 4 of Part 4, which deal with varying and revoking a biodiversity assessment
instrument.
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Subdivision B - Variation of biodiversity assessment instruments
Clause 60 - Variation of biodiversity assessment instruments
447. Clause 60 would make it clear that the Minister would be able, by legislative
instrument, to vary a biodiversity assessment instrument.
448. The purpose of including an express variation power is to ensure that variations are not
required to be subject to the 'in like manner and subject to like conditions' requirement
in subsection 33(3) of the AI Act. Instead, the requirements of which the Minister must
satisfied to vary a biodiversity assessment instrument would be set out in clause 61.
Clause 61 - Procedure for varying a biodiversity assessment instrument
449. Clause 61 would set out the procedure that the Minister must follow when varying a
biodiversity assessment instrument.
450. Similar to the procedure for making a biodiversity assessment instrument, before
varying a biodiversity assessment instrument the Minister would be required to request
advice from the Nature Repair Market Committee about whether the Minister should
vary the instrument (subclause 61(2)).
451. The first note following subclause 61(2) would explain that the Nature Repair Market
Committee would be required to have regard to certain matters in giving advice to the
Minister and refers the reader to clause 64 of the Bill which deals with these matters.
452. The exception to this requirement is minor variations, for which no advice from the
Committee is required (see subclause 61(7)). This is explained in the second note
following subclause 61(7).
453. The combined effect of paragraph 61(1)(a) and subclause 61(3) is that the Minister
would only be able to vary a biodiversity assessment instrument if both of the following
criteria are met:
• the Nature Repair Market Committee has given the Minister advice in relation to
the proposed variation that includes a statement to the effect that the Committee is
satisfied that the instrument (as varied):
i. is an appropriate means of achieving consistency of methodology
determinations (or methodology determinations in a particular class); and
ii. would assist in ensuring that methodology determinations (or methodology
determinations in that class) comply with the biodiversity integrity
standards; and
• the Minister has had regard to the Committee's advice.
454. Again, these requirements would not apply to minor variations (see subclause 61(7)).
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455. In other words, the critical issue for varying a biodiversity assessment instrument (other
than a minor variation) would be whether the proposed instrument is an appropriate
means of achieving consistency of methodology determinations, and would assist in
ensuring that methodology determinations comply with the biodiversity integrity
standards. This aligns with the process for making a biodiversity assessment instrument
under clause 59. The biodiversity integrity standards would be set out in clause 57 of the
Bill.
456. In addition to the mandatory requirements set out above, when varying a biodiversity
assessment instrument, the Minister would also be able to have regard to any other
matters the Minister considers relevant (paragraph 61(1)(b)).
457. This would allow the Minister to take account of advice received from persons other
than the Nature Repair Market Committee where relevant and appropriate.
458. Subclause 61(4) would require the Minister to cause a copy of any advice received from
the Nature Repair Market Committee to be published on the Department's website as
soon as practicable after the Minister decides to vary, or not to vary, a biodiversity
assessment instrument. This requirement would ensure there is appropriate transparency
in relation to the Minister's decision.
459. Again, these requirements would not apply to minor variations (see subclause 61(7)).
460. Subclauses 61(5) and (6) would have the combined effect that if the Minister decides to
vary a biodiversity assessment instrument, the Minister would be required to prepare a
statement of reasons for that decision, and publish the statement of reasons on the
Department's website, as soon as practicable after making the decision. These
requirements would ensure greater transparency about the Minister's decision.
461. Subclause 61(7) would provide that the requirements in subclauses 61(2) to (5) would
not apply to a minor variation of a biodiversity assessment instrument. It is intended that
a minor variation would generally be a variation that results in no substantive change to
the determination - for example, to correct a typographical error. In such circumstances,
the requirements in subclauses 61(2) to (5) are considered unnecessary and
inappropriate.
Subdivision C - Revocation of biodiversity assessment instruments
Clause 62 - Revocation of biodiversity assessment instruments
462. Clause 62 would make it clear that the Minister would be able, by legislative
instrument, to revoke a biodiversity assessment instrument.
463. The purpose of including an express revocation power is to ensure that revocations are
not required to be subject to the 'in like manner and subject to like conditions'
requirement in subsection 33(3) of the AI Act. Instead, the requirements of which the
Minister must be satisfied to revoke a biodiversity assessment instrument would be set
out in clause 63.
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Clause 63 - Procedure for revoking a biodiversity assessment instrument
464. Clause 63 would set out the requirements for the Minister when deciding whether to
revoke a biodiversity assessment instrument under clause 62.
465. Before the Minister revokes a biodiversity assessment instrument, the Minister would be
required to:
• request and receive advice from the Nature Repair Market Committee about
whether the Minister should revoke the instrument (subclause 63(2) and (3)); and
• have regard to certain matters, being the advice given by the Nature Repair
Market Committee on whether the Minister should revoke the instrument and any
other matters the Minister considers relevant (subclause 63(1)).
466. Subclause 63(4) would have the effect that, regardless of whether the Minister decides
to revoke or not revoke the biodiversity instrument, the Minister would be required, as
soon as practicable after making the decision, to cause a copy of the Committee's advice
to be published on the Department's website. This requirement would ensure there is
appropriate transparency in relation to the Minister's decision.
467. Subclauses 63(5) and (6) would have the combined effect that if the Minister decides to
revoke a biodiversity assessment instrument, the Minister would be required to prepare
a statement of reasons for that decision, and publish the statement of reasons on the
Department's website, as soon as practicable after making the decision. These
requirements would ensure greater transparency about the Minister's decision.
Subdivision D - Advice about making, varying or revoking biodiversity assessment
instruments
Clause 64 - Advice by the Nature Repair Market Committee
468. Clause 64 would set out requirements that apply to the Nature Repair Market
Committee when the Minister requests the Committee's advice on whether the Minister
should make, vary or revoke a biodiversity assessment instrument (under, respectively,
subclauses 59(2), 61(2) or 63(2) of the Bill).
469. The requirements in this clause would need to be read in conjunction with the additional
requirements in clause 65 of the Bill (concerning public consultation) - which would
also apply to the Committee's advice to the Minister whether to make or vary a
biodiversity assessment instrument. This would be referenced in the note following
subclause 64(2).
470. Subclause 64(2) would require the Nature Repair Market Committee to give the
requested advice to the Minister. This means that the Committee would not have any
discretion in whether to provide advice on making, varying or revoking a biodiversity
assessment instrument if requested by the Minister to do so.
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471. In providing the requested advice to the Minister, the Committee would be able to
obtain advice from other persons with expertise relevant to the functions of the
Committee (see clause 196).
472. Subclauses 64(3) to (5) would require the Committee to include certain matters in their
advice.
473. Under subclauses 64(3) and (4), where the advice concerns whether the Minister should
make or vary a biodiversity assessment instrument, the Committee would be required to
include the following matters in their advice:
• if the proposed instrument (or the instrument as proposed to be varied) applies
generally - a statement to the effect that the Committee is satisfied that the
proposed instrument (or the instrument as proposed to be varied) is an appropriate
means of achieving consistency of methodology determinations, and would assist
in ensuring that methodology determinations comply with the biodiversity
integrity standards;
• if the instrument (or the instrument as proposed to be varied) applies to a class of
methodology determinations - a statement to the effect that the Committee is
satisfied that the proposed instrument (or the instrument as proposed to be varied)
is an appropriate means of achieving consistency of methodology determinations
in that class, and would assist in ensuring that methodology determinations in that
class comply with the biodiversity integrity standards;
• any other information required by the rules.
474. Under subclause 64(5), where the advice concerns whether the Minister should revoke a
biodiversity assessment instrument, the Committee would be required to include in their
advice a statement setting out the Committee's opinion about whether the instrument
should be revoked, the reasons for the opinion and any other matters required by the
rules.
475. As noted above, clauses 59 and 61 would have the effect that the Minister would only
be able to make or vary a biodiversity assessment instrument if the Committee has
included a statement in its advice to the effect that the Committee satisfied that the
proposed instrument (or the instrument as proposed to be varied) is an appropriate
means of achieving consistency of methodology determinations (or methodology
determinations a particular class) and would assist in ensuring that methodology
determinations (or methodology determinations in a particular class) comply with the
biodiversity integrity standards. In addition, clauses 59, 61 and 63 would require the
Committee's advice to be published on the Department's website. The requirement to
include these statements and opinions, and the reasons for the statements and opinions,
are intended to promote transparency around the Minister's decision. This is because the
public would be able to see the Committee's views (and reasons for those views) and
compare those views to the Minister's ultimate decision.
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476. Subclause 64(6) would set out the mandatory considerations for the Committee when
giving advice to the Minister concerning whether the Minister should make, vary or
revoke a biodiversity assessment instrument. These matters would be:
• the biodiversity integrity standards;
• any relevant matters specified in a direction in force under clause 65A;
• any relevant advice given by the Regulator to the Committee;
• any other matters required by the rules.
477. Subclause 64(7) would clarify that subclause 64(6) would not limit the matters to which
the Committee may have regard when giving the requested advice to the Minister. This
means the Minister would also be able to consider other matters the Minister considers
relevant.
Clause 65 - Consultation by the Nature Repair Market Committee
478. Clause 65 would set out the public consultation requirements for the Nature Repair
Market Committee relating to biodiversity assessment instruments.
479. Subclauses 65(1) and (2) would have the combined effect that the Committee would
only be able to advise the Minister whether to make or vary a biodiversity assessment
instrument if the Committee has first:
• published on the Department's website a detailed outline of the proposed
determination or variation (as the case may be) and a notice inviting the public to
make a submission to the Committee on the detailed outline within a specified
period of at least 28 days after the notice is published; and
• considered any relevant submissions that were received in the specified period.
480. However, the Committee would have the power to shorten the time period to no less
than 14 days if it considers doing so appropriate in the circumstances (subclause 65(3)).
481. Consultation on proposed biodiversity assessment instruments or variations to
biodiversity assessment instruments would allow issues to be raised by stakeholders and
incorporated into the Committee's advice, and the final instruments, where appropriate.
482. The Committee would be required to publish, on the Department's website, any relevant
submissions received in response to a notice under subclause 65(1) (subclause 65(4)).
483. However, under subclauses 65(5) and (6), the Committee would be required to not
publish a particular submission if satisfied that publication could reasonably be expected
to substantially prejudice biodiversity or Indigenous cultural heritage. The Committee
would be able to exercise this power unilaterally or on the request of the person making
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the submission. Any such request would be required to be made in writing and in a form
approved, in writing, by the Committee (subclause 65(7)).
Clause 65A - Additional matters for the Nature Repair Market Committee to take into
account
484. Clause 65A would allow the Minister, by legislative instrument, to direct the Nature
Repair Market Committee to have regard to one or more specified matters when giving
advice about the making, varying or revoking of a biodiversity assessment instrument.
485. The purpose of enabling such directions is so that the Minister can be assured that the
Nature Repair Market Committee are considering all relevant matters when providing
their advice, including matters that may only be relevant to a particular biodiversity
assessment instrument (or a particular class of biodiversity assessment instruments).
486. As it would be in the form of a legislative instrument, any such directions would be
transparent and publicly available.
487. The note following clause 65A would explain that a legislative instrument made for the
purposes of clause 65A would not be subject to disallowance or sunsetting under the
Legislation Act. This is because legislative instruments that are directions are:
• exempt from disallowance by Parliament under item 12 of the table in section 9 of
the LEOM Regulation; and
• exempt from sunsetting under item 3 of the table in section 11 of the LEOM
Regulation.
PART 5 - BIODIVERSITY CERTIFICATES
GENERAL OUTLINE
488. Part 5 of the Bill would establish biodiversity certificates, which would be a new form
of tradeable personal property. It would set out the process and requirements for
applying for and issuing biodiversity certificates for registered biodiversity projects, as
well as provisions relating to the ownership and transfer of biodiversity certificates.
489. A biodiversity certificate would only be able to be issued for a registered biodiversity
project that is sufficiently progressed to have resulted in, or be likely to result in, the
intended biodiversity outcome.
490. The creation of biodiversity certificates would allow unique biodiversity outcomes
associated with individual projects to be described according to a consistent set of
attributes, with that information being made available to the market in a standardised
way to inform purchasing decisions.
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NOTES ON INDIVIDUAL CLAUSES
Division 1 - Introduction
Clause 66 - Simplified outline of this Part
491. Clause 66 would provide a simplified outline of Part 5 of the Bill. The outline is not
intended to be comprehensive and has been included to assist readers to understand the
substantive provisions of Part 5, rather than to replace these provisions. It is intended
that readers will rely on the substantive clauses of Part 5.
Division 2 - Issue of biodiversity certificates
Clause 67 - Application for biodiversity certificate
492. Clause 67 would allow the project proponent of a registered biodiversity project to
apply to the Regulator for the issue of a biodiversity certificate for the project.
493. Subclause 67(2) would have the effect that an application for a biodiversity certificate
could only be made if each of the following circumstances is satisfied:
• a biodiversity certificate has not previously been issued in respect of the registered
biodiversity project or, if a biodiversity certificate has previously been issued in
respect of the registered biodiversity project, the Regulator has agreed that the
application may be made;
i. Generally, there would only be able to be one biodiversity certificate for
each registered biodiversity project. However, in limited circumstances
where a biodiversity certificate for a project has previously been
relinquished and the project proponent can demonstrate that sufficient
remediation activities have been taken to restore the biodiversity outcome
for the project, the Regulator would be able to agree that an application for
a new certificate can be made;
• if the methodology determination that covers the project sets any conditions that
must be satisfied before an application for a biodiversity certificate can be made -
those conditions have been met;
• if the methodology determination that covers the project sets a time that must pass
before an application for a biodiversity certificate can be made - that time has
passed;
• if the rules set any additional conditions that must be satisfied before an
application for a biodiversity certificate can be made - those conditions have been
met.
494. The purpose of these requirements is to increase the likelihood that applications that are
made will meet the criteria for issuing a biodiversity certificate in clause 70.
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Clause 68 - Form of application
495. Clause 68 would set out the requirements of an application made under clause 67 for the
Regulator to issue a biodiversity certificate in respect of a registered biodiversity
project.
496. An application for a biodiversity certificate under clause 67 would be required to be in
writing and to be in a form approved, in writing, by the Regulator (paragraphs 68(1)(a)
and (b)).
497. An application for a biodiversity certificate would also be required to be accompanied
by the following information or documents (see subclauses 68(1)(c) to (i)):
• any information or documents required by the rules or the methodology
determination that covers the project;
• a prescribed audit report prepared by a registered greenhouse and energy auditor -
but only if required by the rules or the methodology determination that covers the
project. The rules would set out the requirements of such a report (including the
content). A registered greenhouse and energy auditor is appointed as such under
the NGER Act;
• the category A biodiversity project report mentioned in clause 101. This report
must meet the requirements of clause 103 and must relate to a reporting period
that begins when the project was registered and ends within 6 months before the
application for a biodiversity certificate was made (see subclauses 101(2) and (3)).
However, the category A biodiversity report would not be required to cover
information that the project proponent has already given the Regulator in a
category B biodiversity project report under clause 104;
• the fee (if any) specified in the rules.
498. Subclause 68(2) would have the effect that the approved application form would be able
to require statements made in an application under clause 67 to be verified by statutory
declaration.
499. Subclause 68(3) would clarify that an application fee specified in the rules must not
amount to taxation. This means that the amount of any fee specified for an application
under clause 67 must be approximately reflect the cost to the Regulator of assessing the
application.
500. The requirements in clause 68 would ensure that the Regulator has sufficient
information before it to decide whether to issue a biodiversity certificate for the project
under clause 70.
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Clause 69 - Further information
501. Clause 69 would allow the Regulator to, by written notice, require the person who has
applied for a biodiversity certificate in respect of a biodiversity project (the applicant) to
provide further information in connection with the application within a specified period.
The period within which the information is required to be provided must be specified in
the notice.
502. Subclause 69(2) would make it clear that if the applicant does not provide the required
further information in the time period specified in the notice, the Regulator may refuse
to consider, or to take any action or further action in relation to, the application.
503. The purpose of this provision is to ensure that decisions on applications for a
biodiversity certificate are made based on all relevant information.
Clause 70 - Issue of biodiversity certificate
504. Clause 70 would deal with the Regulator's decision whether to issue a biodiversity
certificate in respect of a registered biodiversity project (on application by the project
proponent for the project under clause 67).
505. Subclause 70(2) would require the Regulator, if satisfied that the criteria at paragraphs
70(2)(a) to (h) are met, to issue a biodiversity certificate for the project to the applicant
by making an entry in a Register account held by the applicant.
506. Paragraph 70(2)(a) to (h) would set out the criteria of which the Regulator must be
satisfied to issue a biodiversity certificate in respect of a registered biodiversity project.
These criteria are:
• that the applicant is a fit and proper person. The fit and proper person test would
be set out in Part 8 of the Bill. This would be reflected in the first note following
subclause 70(2), which would direct the reader to clauses 97 to 99A of the Bill;
• that the applicant is the project proponent for the project (or, in the case of a
project with multiple project proponents, a project proponent). The second note
following subclause 70(2) would direct the reader to Part 3 of the Bill, which
would deal with multiple project proponents;
• where the registration is subject to a condition under clause 17 (obtaining
regulatory approvals), 18 (obtaining eligible interest holder consents) or 18A
(obtaining consent from the registered native title body corporate to the project
being carried out in or on a native title area) - that the condition or conditions
have been met;
• that the project is sufficiently progressed to have resulted in, or be likely to result
in, the biodiversity outcome for the project;
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i. this criterion would be a key integrity measure for projects that require a
project plan, as it would ensure that biodiversity certificates are only
issued for projects that have, or are likely to, result in an enhancement or
protection of biodiversity.
ii. it is possible that this could occur relatively early in the project on the
basis that the project is sufficiently progressed where there is high
certainty and confidence in the projections underpinning the biodiversity
outcome for the project (as defined in the methodology), and the nature of
the reporting and adaptive management approaches committed to by the
project proponent support a high likelihood of achieving the biodiversity
outcome;
iii. the term biodiversity outcome would be defined in clause 7 of the Bill in
relation to a biodiversity project to mean the enhancement or protection of
biodiversity that the project is designed to achieve. The criterion in
paragraph 70(2)(f) would generally require this outcome to have been, or
to be likely to, be achieved before a biodiversity certificate could be
issued.
• any additional eligibility requirements required by the rules. It is appropriate that
the rules be able to prescribe additional eligibility criteria to allow the scheme to
tailor the criteria to different kinds of projects (where appropriate) and also to be
able to respond to changing circumstances (including technological advances and
changes in the environment);
• any additional conditions required by the methodology determination that covers
the project.
507. A decision made under subclause 70(2) to issue, or refuse to issue, a biodiversity
certificate for a registered biodiversity project would be a reviewable decision. The third
note following subclause 70(2) would direct the reader to Part 20 of the Bill, which
deals with reviewable decisions.
508. Subclause 70(3) would require a biodiversity certificate to set out the matters (if any)
that are specified in the rules. For instance, the rules may require the biodiversity
certificate to set out matters such as the methodology determination that covers the
project, the project's location and the project's permanence period. This, combined with
the information on the Register, would ensure that persons seeking to purchase the
certificate going forward would have sufficient information about the project and the
certificate.
509. Subclause 70(4) would require that the Regulator take all reasonable steps to ensure that
a decision is made on an application to register a biodiversity project within 90 days
after the application is made, or 90 days after requested further information has been
given to the Regulator.
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510. Subclause 70(5) would require the Regulator to give written notice of a decision under
subclause 70(2) (whether or not to issue a biodiversity certificate for a registered
biodiversity project) to the applicant.
Clause 70A - Correction of biodiversity certificate
511. Clause 70A would allow the Regulator to vary a biodiversity certificate in order to
correct a minor or technical error in the certificate.
Clause 71 - Basis on which biodiversity certificates are issued
512. Clause 71 would clarify that a biodiversity certificate would be issued on the basis of
the following:
• the certificate may be varied in accordance with rules made for the purposes of
(respectively) paragraph 22(1)(k), subclause 34(12) or clause 70A;
• the certificate may be required to be relinquished under Part 13;
• the certificate may be cancelled under clauses 77 or 77A;
• the certificate may be cancelled, revoked, terminated or varied, or be required
to be relinquished, by or under later legislation; and
• no compensation is payable if the certificate is so cancelled, revoked,
terminated or varied, or required to be relinquished.
513. It is appropriate to set out these parameters because a biodiversity certificate would
otherwise be the personal property of the holder of the certificate. This provision would
remove any doubt that, despite being personal property, a biodiversity certificate is
subject to any relevant restrictions in legislation.
Division 3 - Property in biodiversity certificates
Clause 72 - A biodiversity certificate is personal property
514. Clause 72 would make it clear that a biodiversity certificate issued to a person is
personal property. As such, a biodiversity certificate is transmissible by assignment, by
will and by devolution by operation of law.
515. Clause 72 would be subject to the requirement in clause 74. Clause 74 would have the
effect of preventing the transmission of a biodiversity certificate from taking legal effect
until the certificate is transferred from an account in the Register held by the transferor
to an account in the Register held by the transferee.
516. This will ensure that the Register is the single source of truth regarding the ownership of
biodiversity certificates, providing appropriate transparency to industry and the public.
Clause 73 - Ownership of biodiversity certificate
517. Clause 73 deals with the ownership of a biodiversity certificate. Subclause 73(1) would
make it clear that the holder of a biodiversity certificate would be the legal owner of the
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certificate and would, subject to this Bill, be able to deal with the certificate as its legal
owner and give good discharges for any consideration for any such dealing.
518. However, subclause 73(1) would only apply to a person who deals with the holder of
the certificate in good faith for value and without notice of any defect in the title of the
holder (subclause 73(2).
519. Clause 73 is intended to provide certainty about the ownership of biodiversity
certificates. It is also intended to provide protection for a person who is a bona fide
purchaser of the biodiversity certificate and who does not have any notice of any defects
in the title of the holder.
520. Defects in title might arise, for example, if a biodiversity certificate was transferred in
error and sold on by an unintended recipient before the error is detected, or transferred
fraudulently in cases such as where evidence of a transmission by operation of law is
false, or there is unauthorised access to a Register account. In such circumstances,
clause 73 would ensure that bona fide purchasers who have no knowledge of the defect
are not disadvantaged.
521. The note following subclause 73(1) would explain that the holder of a biodiversity
certificate is the person recorded in the Register as the holder of the certificate (see
clause 7).
Clause 74 - Transmission of biodiversity certificates
522. Clause 74 would have the effect of preventing the transmission of a biodiversity
certificate from taking legal effect until the certificate is transferred from an account in
the Register held by the transferor to an account in the Register held by the transferee.
523. This will ensure that the Register is the single source of truth regarding the ownership of
biodiversity certificates, providing appropriate transparency to industry and the public.
Clause 75 - Registration of equitable interests in relation to biodiversity certificates
524. Clause 75 would have the effect that the rules would be able to make provision for or in
relation to the registration in the Register of equitable interests in relation to biodiversity
certificates. However, the rules would not be able to provide for an equitable interest
that is a security interest within the meaning of the Personal Property Securities Act
2009, and to which that Act applies.
525. This means that the rules may, for example, define the equitable interests in relation to a
biodiversity certificate that may be included in the Register and the process for doing so,
including any application process. It is appropriate to prescribe such matters in the rules
to ensure that the processes for different kinds of equitable interests can be properly
tailored to meet the needs of each such kind of interest holder.
Clause 76 - Equitable interests in relation to biodiversity certificates
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526. Clause 76 would make it clear that the Bill does not affect the creation of, any dealings
with, or the enforcement of, equitable interests in relation to a biodiversity certificate.
This would be an avoidance of doubt provision.
Division 4 - Cancellation of biodiversity certificate at the end of the permanence period for
a registered biodiversity project
Clause 77 - Cancellation of biodiversity certificate at the end of the permanence period
for a registered biodiversity project
527. Clause 77 would have the effect that a biodiversity certificates that is in force for a
registered biodiversity project would be cancelled when the permanence period for the
project ends. This is consistent with the project no longer being registered after the end
of the permanence period.
528. After a biodiversity certificate is cancelled, the Regulator would be required to remove
it from the person's Register account in which there is an entry in force or, if the
biodiversity certificate is deposited with the Regulator under Part 12 of the Bill, from
the Commonwealth Register account in which there is an entry for the certificate. This
would ensure, for the purposes of transparency, that the Register reflects up to date
information on biodiversity certificates that are in effect.
529. The note after clause 77 would refer the reader to subclause 162(5), which would allow
the rules to make provision in the Register for former registered biodiversity projects.
Division 5 - Cancellation of biodiversity certificate if registration of registered biodiversity
project is cancelled
Clause 77A - Cancellation of biodiversity certificate if registration of registered
biodiversity project is cancelled
530. Clause 77A would have the effect that any biodiversity certificates that are in force for a
registered biodiversity project would be cancelled when the registration of that
registered biodiversity project is cancelled.
531. This provision is intended to cover the situation where a project's registration is
cancelled before the end of the permanence period for the project and there is a
certificate in effect for that project. It is consistent with there being no further
obligations to maintain the project after its registration is cancelled.
532. After a biodiversity certificate is cancelled, the Regulator would be required to remove
it from the person's Register account in which there is an entry in force or, if the
biodiversity certificate is deposited with the Regulator under Part 12 of the Bill, from
the Commonwealth Register account in which there is an entry for the certificate. This
would ensure, for the purposes of transparency, that the Register only reflects
biodiversity certificates that are in effect.
533. The note after clause 77A would refer the reader to subclause 162(5), which would
allow the rules to make provision in the Register for former registered biodiversity
projects.
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PART 6 - PURCHASE OF BIODIVERSITY CERTIFICATES BY THE
COMMONWEALTH
GENERAL OUTLINE
534. Part 6 of the Bill would provide for the purchase by the Secretary of biodiversity
certificates issued under the Bill. It would also provide for the powers of the Secretary
to enter into contracts on behalf of the Commonwealth and the treatment of biodiversity
certificates once purchased.
535. For the avoidance of doubt, Part 6 is not intended to prohibit the Commonwealth from
using other purchasing arrangements, such as the Commonwealth Procurement Rules, to
buy biodiversity certificates.
NOTES ON INDIVIDUAL CLAUSES
Division 1 - Introduction
Clause 78 - Simplified outline of this Part
536. Clause 78 would provide a simplified outline of Part 6 of the Bill. The outline is not
intended to be comprehensive and has been included to assist readers to understand the
substantive provisions of Part 6, rather than to replace these provisions. It is intended
that readers will rely on the substantive clauses of Part 6.
Division 2 - Biodiversity conservation contracts
Clause 79 - Biodiversity conservation contracts
537. Clause 79 would provide that the Secretary may enter into contracts (known as
biodiversity conservation contracts), on behalf of the Commonwealth, for the purchase
by the Commonwealth of biodiversity certificates.
538. The Secretary would be able to enter into such contracts regardless of whether the
biodiversity certificate in question is in existence at the time the contract is entered into.
539. Where the Secretary enters into a biodiversity conservation contract with a person, the
person would be a biodiversity conservation contractor.
540. The use of a market approach to offer biodiversity conservation incentives is endorsed
by Article 11 of the Biodiversity Convention.
Clause 80 - When biodiversity conservation contracts may be entered into
541. Clause 80 would clarify when the Secretary would be able to enter into a biodiversity
conservation contract.
542. The Secretary would only be able to enter into a biodiversity conservation contract that
is the result of a biodiversity conservation purchasing process (conducted by the
Secretary under clause 84). This would ensure that the Secretary's powers to enter into a
biodiversity conservation contract are only exercised following a process that accorded
with the principles in subclause 84(3) (including facilitating the Commonwealth
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receiving value for money when purchasing biodiversity certificates, and maximising
the protection or enhancement of biodiversity that results from the process) are adhered
to.
543. In addition, the Secretary would only be permitted to enter into a contract where the
biodiversity conservation contractor was a project proponent for a registered
biodiversity project, or the holder of a biodiversity certificate.
544. Subclause 80(3) would allow the rules to prescribe further circumstances in which the
Secretary would not be permitted to enter into a biodiversity conservation contract. It is
appropriate for the rules to set out additional circumstances as these circumstances
could change over time in accordance with statutory and government policy.
Clause 81 - Secretary has powers etc. of the Commonwealth
545. Clause 81 would have the effect that the Secretary, on behalf of the Commonwealth,
would be conferred with the same rights, responsibilities, duties and powers as the
Commonwealth, in relation to the Commonwealth's legal capacity to be a party to a
biodiversity conservation contract.
546. These rights, responsibilities, duties and powers would include, but not be limited to,
any of the following:
• an amount payable by or to the Commonwealth under a biodiversity conservation
contract would be paid by or to the Secretary on behalf of the Commonwealth;
and
• the Secretary would be able to institute an action or proceeding on behalf of the
Commonwealth in relation to a matter that concerns a biodiversity conservation
contract.
547. It is intended that any amounts paid by the Secretary under a biodiversity conservation
contract would come from annual appropriations made through the Federal Budget
process.
Clause 82 - Conferral of powers on the Secretary
548. Clause 82 would be an avoidance of doubt provision. It would confirm that the
Secretary may exercise a power conferred on them by a biodiversity conservation
contract.
549. Biodiversity conservation contracts would be commercial contracts and include ordinary
commercial terms and conditions such as conditions relating to non-performance or
under delivery by the contractor. Clause 82 would ensure that such contractual terms
can be enforced by the Secretary in the same way as by other persons who enter into
commercial contracts.
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Division 3 - Biodiversity conservation purchasing processes
Clause 83 - Biodiversity conservation purchasing process
550. Clause 83 would define the term biodiversity conservation purchasing process, for the
purposes of the Bill, as any of: a tender process, a reverse auction or any other process
for the purchase of biodiversity certificates by the Commonwealth.
551. Clause 83 would also make it clear that it is immaterial whether the certificates that are
the subject of the purchase are in existence when the process is conducted.
Clause 84 - Conduct of biodiversity conservation purchasing process
552. Clause 84 would have the effect that the Secretary, on behalf of the Commonwealth,
would be able to conduct one or more biodiversity conservation purchasing processes.
As noted above, a biodiversity conservation process would be defined in clause 83 as
covering a tender process, a reverse auction or any other process for the purchase by the
Commonwealth of biodiversity certificates.
553. Under subclause 84(3), when conducting a biodiversity conservation purchasing
process, the Secretary would be required to have regard to certain principles. These
principles are:
• facilitating the Commonwealth receiving value for money when purchasing
biodiversity certificates;
• maximising the protection or enhancement of biodiversity that results from the
process;
• conducting the process in a way that ensures both the integrity of the process and
that administrative costs are reasonable;
• encouraging competition; and
• providing for fair and ethical treatment of all participants.
554. These principles are tailored to the specific circumstances of purchasing biodiversity
certificates in the emerging market established by this Bill. The intention is that they
would replace the ordinary principles governing Commonwealth procurement under the
Commonwealth Procurement Rules 2022 (CPRs). Clause 86 would turn off the CPRs
for the purposes of the Secretary's functions under clauses 79 and 84 of the Bill
(concerning entering into a biodiversity conservation contract and conducting a
biodiversity conservation purchasing process).
555. For the avoidance of doubt, subclause 84(4) would clarify that a person being a project
proponent for a project, or the holder of a biodiversity certificate, will not automatically
entitle the person to participate in a biodiversity conservation purchasing process.
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556. The purchasing principles are not intended to prevent purchasing aimed at supporting
specific biodiversity outcomes relating to such matters as habitat type or species
protection.
Division 4 - Miscellaneous
Clause 85 - Rules may provide for certain matters relating to purchased biodiversity
certificates
557. Clause 85 would allow the rules to make provision for and in relation to the following
matters in respect of biodiversity certificates purchased by the Commonwealth under
biodiversity conservation contracts:
• transferring purchased certificates to a specified Register account kept for the
Commonwealth;
• prohibiting or restricting the transfer of biodiversity certificates from such an
account;
• cancelling biodiversity certificates for which there are entries in such an account.
558. Rules made for the purpose of this clause would allow for detailed requirements
(including appropriate assurance processes) to be imposed to support the transferring
and cancelling of certificates purchased by the Commonwealth. Such requirements may
need to be tailored for different kinds of biodiversity projects and are likely to need to
quickly evolve over time to respond to changing technology or other situations. For this
reason, it is appropriate that such requirements be set out in rules, rather than the Bill
itself.
Clause 86 - Certain instruments relating to Commonwealth procurement are not
applicable
559. Clause 86 would have the effect that an instrument made under section 105B of the
Public Governance, Performance and Accountability Act 2013 (PGPA Act) does not
apply in relation to the Secretary's functions and powers under clause 79 or 84 of the
Bill (concerning entering into biodiversity conservation contracts and conducting
biodiversity conservation purchasing processes).
560. The note following clause 86 explains that section 105B of the PGPA Act provides for
the making of instruments relating to procurement. The current instrument made under
section 105B is the CPRs. It is appropriate that the CPRs do not apply to the Secretary's
power to enter into a biodiversity conservation contract or to conduct a biodiversity
conservation purchasing process because the purpose of the Secretary exercising these
powers is to assist in growing the nature repair market to be established by this Bill, not
to source goods or services for the Commonwealth. Accordingly, it is appropriate that
the Secretary be instead required to comply with procurement principles that are tailored
to the specific circumstances. These principles are set out in subclause 84(3) of the Bill.
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Clause 87 - Biodiversity conservation contracts are not instruments made under this
Act
561. Clause 87 would be an avoidance of doubt provision. It would have the effect of
confirming that a biodiversity conservation contract is taken not to be an instrument
made under the Bill.
562. This is appropriate as a biodiversity conservation contract would not be of legislative
character. Instead, it would be a commercial agreement entered into by the Secretary (on
behalf of the Commonwealth) and another person for the purchase of one or more
biodiversity certificates.
PART 7 - INTERESTS IN LAND
GENERAL OUTLINE
563. Part 7 of the Bill would set out the eligible interest holders for the purpose of the Bill.
This would be relevant as the registration of a biodiversity project may be subject to a
condition requiring the project proponent to obtain the consent of any eligible interest
holders for the project area before a biodiversity certificate may be issued. Eligible
interests would be in respect of Torrens system land and Crown land that is not Torrens
system land and some land rights land.
564. Part 7 would not deal with eligible interests in native title areas, as consent requirements
for such areas (land and water) would be separately dealt with under paragraph 15(6)(b)
and clause 18A of the Bill.
565. This Part would also require the registration of certain kinds of biodiversity projects to
be notified to the Crown lands Minister of the relevant State or Territory and recorded in
certain title registers.
NOTES ON INDIVIDUAL CLAUSES
Division 1 - Introduction
Clause 88 - Simplified outline of this Part
566. Clause 88 would provide a simplified outline of Part 7 of the Bill. The outline is not
intended to be comprehensive and has been included to assist readers to understand the
substantive provisions of Part 7, rather than to replace these provisions. It is intended
that readers will rely on the substantive clauses of Part 7.
Division 2 - Eligible interest in an area of land
Clause 89 - Eligible interest in an area of land - Torrens system land
567. Clause 89 would set out the persons who hold an eligible interest in relation to an area
of land that is Torrens System land.
568. If an eligible person wants to register a biodiversity project that is to be carried out on
land for which a person holds an eligible interest, they would be required to obtain the
eligible interest holder's consent. The purpose of this requirement is to ensure that
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projects are not carried out on land without the consent of persons who have certain
interests (including financial interests) in the land.
569. Eligible interest holder consent would generally be obtained prior to registration of the
project. For certain eligible interest holders (such as the owner of the land), consent to
the project proponent carrying out the project as a registered biodiversity project would
be required prior to registration (see paragraph 15(6)(a) of the Bill).
570. However, where paragraph 15(6)(a) does not apply, the Regulator would be able to
register the project subject to the condition that the project proponent obtain the required
eligible interest holder consent post-registration (clause 18). The project proponent
would not be able to apply for a biodiversity certificate for a registered biodiversity
project unless all required eligible interest consents have been obtained (clause 67). In
addition, if consent from all eligible interest holders has not been obtained within 5
years of the project being conditionally registered, the Regulator may be able to cancel
the project's registration (under rules made for the purpose of clause 26).
571. In relation to an area of Torrens System land, each the following persons would hold an
eligible interest for the purposes of the Bill:
• a person who has a registered legal estate or interest in the area of land (subclause
89(2)). This means, for example, if a person holds an estate in fee simple in an
area of land on which a biodiversity project is to be carried out, that person's
consent for the project would need to be obtained;
• where there is a mortgage or charge over the area of land - the mortgagee (ie the
lender) or the chargee (as the case may be) (subclause 89(3));
• where the land is also Crown land (and is not an exclusive possession native title
area or land rights land) - the Crown Lands Minister of the relevant State or
Territory where the area of land is located (subclause 89(4));
• where the land is also land rights land (and is not an exclusive possession native
title area) and a lease is in force over the land that was granted under a
Commonwealth law that makes provision for the grant of such leases only to, or
for the benefit of, Aboriginal persons and Torres Strait Islanders - the Minister
who administers the Commonwealth law under which the lease was granted
(subclause 89(6));
• where the land is also land rights land (and is not an exclusive possession native
title area) and the land is held by the Commonwealth - the Minister who
administers the Aboriginal Land Rights (Northern Territory) Act 1976 (subclause
89(6));
• where the land is also land rights land (and is not an exclusive possession native
title area) and the land is held by a Commonwealth statutory authority - the
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Minister who administers the Act that establishes the statutory authority
(subclause 89(6));
• where the land is also land rights land in a State or Territory that subclause 89(6)
does not apply to (and is not an exclusive possession native title area - the Crown
lands Minister of the relevant State or Territory (subclause 89(7));
• where the rules provide for a person to hold an eligible interest in the area of land
- that person (subclause 89(5)). For example, the rules could prescribe additional
Indigenous-related interests to be eligible interests for the purposes of the Bill.
Clause 90 - Eligible interest in an area of land - Crown land that is not Torrens system
land
572. Clause 90 would set out the persons who hold an eligible interest in relation to an area
of land that is Crown land, but not Torrens System land.
573. The following persons would hold an eligible interest in relation to an area of land that
is Crown land, but not Torrens System land:
• where the Crown land is neither an exclusive possession native title area or land
rights land - the Crown lands Minister of the relevant State or Territory where the
land is located (subclause 90(2));
• where a person (other than a State or Territory) holds a legal estate or interest in
the whole or part of the area of Crown land, and the relevant estate or interest
came into existence as a result of a grant by the Crown - the person who holds the
legal estate or interest (subclause 90(3));
• where a person (other than a State or Territory) holds a legal estate or interest in
the whole or part of the area of Crown land, and the relevant estate or interest was
derived from an estate or interest that came into existence as a result of a grant by
the Crown - the person who holds the legal estate or interest (subclause 90(3));
• where a person (other than a State or Territory) holds a legal estate or interest in
the whole or part of the area of Crown land, and the relevant estate or interest was
created by or under a Commonwealth, State or Territory law - the person who
holds the legal estate or interest (subclause 90(3));
• where a person (other than a State or Territory) holds a legal estate or interest in
the whole or part of the area of Crown land, and the relevant estate or interest was
derived from an estate or interest that was created by or under a Commonwealth,
State or Territory law - the person who holds the legal estate or interest (subclause
90(3));
• where there is a mortgage or charge over the area of Crown land - the mortgagee
(ie the lender) or the chargee (as the case may be) (subclause 90(4));
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• where the Crown land is also land rights land (and is not an exclusive possession
native title area) and a lease is in force over the land that was granted under a
Commonwealth law that makes provision for the grant of such leases only to, or
for the benefit of, Aboriginal persons and Torres Strait Islanders - the Minister
who administers the Commonwealth law under which the lease was granted
(subclause 90(6));
• where the Crown land is also land rights land (and is not an exclusive possession
native title area) and the land is held by the Commonwealth - the Minister who
administers the Aboriginal Land Rights (Northern Territory) Act 1976 (subclause
90(6));
• where the Crown land is also land rights land (and is not an exclusive possession
native title area) and the land is held by a Commonwealth statutory authority - the
Minister who administers the Act that establishes the statutory authority
(subclause 90(6));
• where the Crown land is also land rights land in a State or Territory that subclause
90(6) does not apply to (and is not an exclusive possession native title area or
freehold land rights land)- the Crown lands Minister of the relevant State or
Territory (subclause 90(7));
• where the rules provide for a person to hold an eligible interest in the area of
Crown land - that person (subclause 90(5)). For example, the rules could
prescribe additional indigenous-related interests to be eligible interests for the
purposes of the Bill.
Clause 92 - Eligible interest on an area of land - Aboriginal land council
574. Clause 92 would have the effect that an Aboriginal land council holds an eligible
interest in an area of land if it successfully makes a claim under Commonwealth, State
or Territory law for the area of land to become land rights land (within the meaning of
the relevant Commonwealth, State or Territory law). The term Aboriginal land council
would be defined in clause 7 of the Bill.
575. The purpose of clause 92 is to ensure that biodiversity projects are not carried out on
land rights land without the full and informed consent of the relevant Aboriginal land
council. It would also ensure that the relevant Aboriginal land council is an eligible
interest holder from the time they successfully make a claim for the land to become land
rights land, even where there is a delay between the claim succeeding and being
registered on the relevant land title.
576. This is consistent with the objects of the Bill, which relevantly provide that the Bill aims
to promote the engagement and cooperation of Aboriginal persons and Torres Strait
Islanders in the enhancement or protection of biodiversity in native species in Australia.
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Division 3 - Freehold land rights land
Clause 93 - Regulator to notify Crown lands Minister of approval of registration of
biodiversity project
577. Where the Regulator approves the registration of a biodiversity project that has a project
area that is both wholly or partly freehold land rights land in a particular State or
Territory and is wholly or partly Crown land, clause 93 would require the Regulator to
notify the Crown lands Minister of the relevant State or Territory of the approval. The
notification would need to be made as soon as practicable after giving the approval.
578. The notification requirement in clause 93 would not apply if the project area is partly
Torrens system land. This is because the Regulator would already be required to notify
the relevant land registration official of the State or Territory of the approval (see clause
15).
Division 4 - Entries in title registers
Clause 94 - Entries in title registers - general
579. Clause 94 would clarify that a relevant land registration official would be able to make
such entries or notations in or on registers or other documents kept by the official as the
official thinks appropriate for the purpose of drawing the attention of persons to the
existence of a registered biodiversity project, the fact that requirements may arise under
the Bill in respect of such a project and any other matters relating to the Bill as the
official considers appropriate.
580. The relevant land registration official would be a land registration official in the State or
Territory in which the project area (or part of the project area) is located (see clause 7).
581. The purpose of making such entries or notations is to ensure that persons in the future
who have an interest in the land are aware of the project and any consequences for the
land holder thereof.
Clause 95 - Entries in title registers - biodiversity maintenance areas
582. Clause 95 would clarify that a relevant land registration official would be able to make
such entries or notations in or on registers or other documents kept by the official as the
official thinks appropriate for the purpose of drawing the attention of persons to the
existence of a biodiversity maintenance declaration that applies to the land under the
Bill.
583. The purpose of making such entries or notations is to ensure that persons in the future
who have an interest in the land are aware of the declaration and any consequences for
the land holder thereof.
PART 8 - FIT AND PROPER PERSON TEST
GENERAL OUTLINE
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584. Part 8 of the Bill would set out the fit and proper person test that would apply to
individuals, corporations, trusts and non-corporate government bodies. If an applicant is
not a fit and proper person, the person would not satisfy the criteria for approval of
registration of a biodiversity project or for a biodiversity certificate to be issued in
respect of a registered biodiversity project. The Regulator would also be able to cancel
the registration of an existing biodiversity project if a person ceases to be a fit and
proper person.
NOTES ON INDIVIDUAL CLAUSES
Clause 96 - Simplified outline of this Part
585. Clause 96 would provide a simplified outline of Part 8 of the Bill. The outline is not
intended to be comprehensive and has been included to assist readers to understand the
substantive provisions of Part 8, rather than to replace these provisions. It is intended
that readers will rely on the substantive clauses of Part 8.
Clause 97 - Fit and proper person - individuals
586. Clause 97 would set out the relevant considerations for determining whether a person
who is an individual is a fit and proper person for the purposes of the Bill.
587. The fit and proper person test would be relevant to a number of decisions in the Bill,
including the decision whether to register a biodiversity project (clause 15), the decision
whether to issue a biodiversity certificate for a registered biodiversity project (clause
70) and the decision whether to cancel a project's registration (clause 29). Generally, a
person who is a project proponent for a registered biodiversity project would be required
to be a fit and proper person. This would be a key integrity measure in the Bill.
588. This means the Regulator would be required to refuse to register a project, or to refuse
to issue a biodiversity certificate if the Regulator is not satisfied that a project proponent
for the project (or, in the case of a biodiversity certificate, the project proponent who is
applying for the certificate) is a fit and proper person. Similarly, rules made for the
purposes of clause 29 may require the Regulator to unilaterally cancel the registration of
a biodiversity project in certain circumstances where the Regulator is no longer satisfied
the project proponent for the project is a fit and proper person.
589. Subclause 97(1) would set out the matters to which the Regulator is required to have
regard when deciding whether it is satisfied that an individual is a fit and proper person.
These matters are:
• whether the individual has been convicted of an offence against, or ordered to pay
a pecuniary penalty for contravening a provision of, a Commonwealth, State or
Territory law that relates to dishonesty or fraudulent conduct, the environment,
climate change or work, health or safety;
• whether the individual has been convicted of an offence under the Criminal Code
concerning making false or misleading statements in applications, providing false
or misleading information or producing false or misleading documents.
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• whether an order has been made against the individual under section 76 of the
Competition and Consumer Act 2010 (CC Act) or under section 224 of the
Australian Consumer Law (concerning pecuniary penalties);
• whether the individual has contravened the Bill or any of the following Acts: the
Carbon Credits (Carbon Farming Initiative) Act 2011 (CFI Act), the NGER Act
or the Australian National Registry of Emissions Units Act 2011 (ANREU Act)
(or rules or regulations (as the case may be) made under any of the above);
• whether the individual has previously made an application under clause 11
(application to register a biodiversity project), clause 67 (application for a
biodiversity certificate), rules made for the purposes of clause 221 (voluntary
accreditation of advisers) or another provision of the Bill prescribed by the rules,
that was refused on the basis that the Regulator was not satisfied the individual
was a fit and proper person;
• whether the individual is an insolvent under administration;
• any other matters prescribed by the rules;
• any other matters the Regulator considers relevant.
590. Subclause 97(2) would have the effect that the Regulator would be permitted, but not
required, to have regard to the following additional matters when deciding whether an
individual is a fit and proper person:
• whether the individual has been convicted of an offence against, or ordered to pay
a pecuniary penalty for contravening a provision of, a law of a foreign country
that relates to dishonesty or fraudulent conduct, the environment, climate change
or work, health or safety;
• whether the individual has, in the previous 3 years, engaged in conduct that
resulted in the individual giving or breaching an enforceable undertaking under a
Commonwealth, State or Territory law that relates to the environment, climate
change or work, health or safety;
• any other matters prescribed by the rules;
• any other matters the Regulator considers relevant.
591. It is intended that these factors will enable the Regulator to gain a broader
understanding of the compliance history of the person without being restricted to only
considering those matters that resulted in a conviction or pecuniary penalty order. This
will enable the Regulator to make an informed decision as to whether the person is a fit
and proper person.
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592. While criminal record information is sensitive information under the Privacy Act 1988
(Privacy Act) it is considered appropriate that the Regulator have regard to relevant
convictions of the individual when determining whether the individual is a fit and
proper person for the purposes of the Bill. This is because knowledge of a person's
history of compliance with relevant Australian laws (and, in some cases, foreign laws)
will assist in the Regulator's assessment of whether the person is likely to comply, or be
able to comply, with the requirements of the Bill, the rules or the methodology
determination that covers the project. This is particularly the case where the convictions
stem from offences against Australian legislation that covers similar subject matter
(such as environmental or climate-related legislation) or deals with dishonest or
fraudulent conduct. The criminal record information obtained by the Regulator for the
purposes of undertaking the fit and proper person test will be protected information
under the CER Act and will be subject to the prohibition on unauthorised use and
disclosure in section 43 of that Act.
593. Subclause 97(3) would clarify that nothing in clause 97 would affect the operation of
Part VIIC of the Crimes Act 1914 (Crimes Act) (dealing with spent convictions).
594. Similarly, subclause 97(4) would clarify that rules made for the purposes of paragraphs
97(1)(k) or 97(2)(c) (prescribing additional matters to which the Regulator must, or
may, have regard) would not be able to affect Part VIIC of the Crimes Act.
595. The note following subclause 97(4) would explain that Part VIIC of the Crimes Act
includes provisions that, in certain circumstances, relieve persons from the requirement
to disclose spent convictions and require persons aware of such convictions to disregard
them.
Clause 98 - Fit and proper person - corporations
596. Clause 98 would set out the relevant considerations for determining whether a
corporation is a fit and proper person for the purposes of the Bill. A corporation would
be defined in clause 7 of the Bill to cover both a body corporate and a corporation sole.
597. The fit and proper person test would be relevant to a number of decisions in the Bill,
including the decision whether to register a biodiversity project (clause 15), the decision
whether to issue a biodiversity certificate for a registered biodiversity project (clause
70) and the decision whether to cancel a project's registration (clause 29). Generally, a
person who is a project proponent for a registered biodiversity project would be required
to be a fit and proper person.
598. This means the Regulator would be required to refuse to register a project, or refuse to
issue a biodiversity certificate if the Regulator is not satisfied that a project proponent
for the project (or, in the case of a biodiversity certificate, the project proponent who is
applying for the certificate) is a fit and proper person. Similarly, rules made for the
purposes of clause 29 may require the Regulator to unilaterally cancel the registration of
a biodiversity project in certain circumstances where the Regulator is no longer satisfied
the project proponent for the project is a fit and proper person.
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599. Subclause 98(1) would set out the matters to which the Regulator is required to have
regard when deciding whether it is satisfied that a corporation is a fit and proper person.
These matters are:
• whether the corporation (or any of its executive officers) has been convicted of an
offence against, or ordered to pay a pecuniary penalty for contravening a
provision of, a Commonwealth, State or Territory law that relates to dishonesty or
fraudulent conduct, the environment, climate change or work, health or safety;
• whether the corporation (or any of its executive officers) has been convicted of an
offence under the Criminal Code concerning making false or misleading
statements in applications, providing false or misleading information or producing
false or misleading documents.
• whether an order has been made against the corporation (or any of its executive
officers) under section 76 of the CC Act or under section 224 of the Australian
Consumer Law (concerning pecuniary penalties);
• whether the corporation (or any of its executive officers) has contravened the Bill,
the CFI Act, the NGER Act or the ANREU Act (or rules or regulations made
under any of the above);
• whether the corporation (or any of its executive officers) has previously made an
application under clause 11 (application to register a biodiversity project), clause
67 (application for a biodiversity certificate), rules made for the purposes of
clause 221 (voluntary accreditation of advisers) or another provision of the Bill
prescribed by the rules, that was refused on the basis that the Regulator was not
satisfied the corporation was a fit and proper person;
• whether the corporation is a corporation under external administration;
• any other matters required by the rules;
• any other matters the Regulator considers relevant.
600. Subclause 98(2) would have the effect that the Regulator would be permitted, but not
required, to have regard to the following additional matters when deciding whether a
corporation is a fit and proper person:
• whether the corporation (or any of its executive officers) has been convicted of an
offence against, or ordered to pay a pecuniary penalty for contravening a
provision of, a law of a foreign country that relates to dishonesty or fraudulent
conduct, the environment, climate change or work, health or safety;
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• whether the corporation (or any of its executive officers) has, in the previous 3
years, engaged in conduct that resulted in giving or breaching an enforceable
undertaking under a Commonwealth, State or Territory law that relates to the
environment, climate change or work, health or safety;
• any other matters prescribed by the rules;
• any other matters the Regulator considers relevant.
601. It is intended that these factors will enable the Regulator to gain a broader
understanding of the compliance history of the corporation without being restricted to
only considering those matters that resulted in a conviction or pecuniary penalty order.
This will enable the Regulator to make an informed decision as to whether the
corporation is a fit and proper person.
602. Subclause 98(3) would clarify that nothing in clause 98 would affect the operation of
Part VIIC of the Crimes Act (dealing with spent convictions).
603. Similarly, subclause 98(4) would clarify that rules made for the purposes of paragraphs
98(1)(l) or 98(2)(d) (prescribing additional matters to which the Regulator must, or may,
have regard) would not be able to affect Part VIIC of the Crimes Act.
604. The note following subclause 98(4) would explain that Part VIIC of the Crimes Act
includes provisions that, in certain circumstances, relieve persons from the requirement
to disclose spent convictions and require persons aware of such convictions to disregard
them.
Clause 99 - Fit and proper person - trusts
605. Clause 99 would set out the relevant considerations for determining whether a trust is a
fit and proper person for the purposes of the Bill.
606. The fit and proper person test would be relevant to a number of decisions in the Bill,
including the decision whether to register a biodiversity project (clause 15), the decision
whether to issue a biodiversity certificate for a registered biodiversity project (clause
70) and the decision whether to cancel a project's registration (clause 29). Generally, a
person who is a project proponent for a registered biodiversity project would be required
to be a fit and proper person.
607. This means the Regulator would be required to refuse to register a project, or refuse to
issue a biodiversity certificate, if the Regulator is not satisfied that a project proponent
for the project (or, in the case of a biodiversity certificate, the project proponent who is
applying for the certificate) is a fit and proper person. Similarly, rules made for the
purposes of clause 29 may require the Regulator to unilaterally cancel the registration of
a biodiversity project in certain circumstances where the Regulator is no longer satisfied
the project proponent for the project is a fit and proper person.
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608. Subclause 99(1) would set out the matters to which the Regulator is required to have
regard when deciding whether it is satisfied that a trust is a fit and proper person. These
matters are:
• whether the trust or a trustee of the trust has been convicted of an offence against,
or ordered to pay a pecuniary penalty for contravening a provision of, a
Commonwealth, State or Territory law that relates to dishonesty or fraudulent
conduct, the environment, climate change or work, health or safety;
• whether a trustee of the trust has been convicted of an offence under the Criminal
Code concerning making false or misleading statements in applications, providing
false or misleading information or producing false or misleading documents;
• whether an order has been made against a trustee of the trust under section 76 of
the CC Act or under section 224 of the Australian Consumer Law (concerning
pecuniary penalties);
• whether the trust or a trustee of the trust has contravened the Bill, the CFI Act, the
NGER Act or the ANREU Act (or rules or regulations made under any of the
above);
• whether the trust or a trustee of the trust has previously made an application under
clause 11 (application to register a biodiversity project), clause 67 (application for
a biodiversity certificate), rules made for the purposes of clause 221 (voluntary
accreditation of advisers) or another provision of the Bill prescribed by the rules,
that was refused on the basis that the Regulator was not satisfied the trust (or
trustee) was a fit and proper person;
• whether a trustee of the trust is a body corporate under external administration or
an insolvent under administration;
• any other matters required by the rules;
• any other matters the Regulator considers relevant.
609. Subclause 99(2) would have the effect that the Regulator would be permitted, but not
required, to have regard to the following additional matters when deciding whether a
trust is a fit and proper person:
• whether a trustee of the trust has been convicted of an offence against, or ordered
to pay a pecuniary penalty for contravening a provision of, a law of a foreign
country that relates to dishonesty or fraudulent conduct, the environment, climate
change or work, health or safety;
• whether a trustee of the trust has, in the previous 3 years, engaged in conduct that
resulted in giving or breaching an enforceable undertaking under a
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Commonwealth, State or Territory law that relates to the environment, climate
change or work, health or safety;
• any other matters prescribed by the rules;
• any other matters the Regulator considers relevant.
610. It is intended that these factors will enable the Regulator to gain a broader
understanding of the compliance history of the trust without being restricted to only
considering those matters that resulted in a conviction or pecuniary penalty order. This
will enable the Regulator to make an informed decision as to whether the trust is a fit
and proper person.
611. Noting that a trustee of a trust may be an individual, while criminal record information
is sensitive information under the Privacy Act, it is considered appropriate that the
Regulator have regard to relevant convictions of the individual who is a trustee of a trust
when determining whether the trust is a fit and proper person for the purposes of the
Bill. This is because knowledge of the person's history of compliance with relevant
Australian laws (and, in some cases, foreign laws) will assist in the Regulator's
assessment of whether the person is likely to comply, or be able to comply, with the
requirements of the Bill, the rules or the methodology determination that covers the
project. This is particularly the case where the convictions stem from offences against
Australian legislation that covers similar subject matter (such as environmental or
climate-related legislation) or that deal with dishonest or fraudulent conduct. The
criminal record information obtained by the Regulator for the purposes of undertaking
the fit and proper person test would be protected information under the CER Act and
would be subject to the prohibition on unauthorised use and disclosure in section 43 of
that Act.
612. Subclause 99(3) would clarify that nothing in clause 99 would affect the operation of
Part VIIC of the Crimes Act (dealing with spent convictions).
613. Similarly, subclause 99(4) would clarify that rules made for the purposes of paragraphs
99(1)(l) or 99(2)(c) (prescribing additional matters to which the Regulator must, or may,
have regard) would not be able to affect Part VIIC of the Crimes Act.
614. The note following subclause 99(4) would explain that Part VIIC of the Crimes Act
includes provisions that, in certain circumstances, relieve persons from the requirement
to disclose spent convictions and require persons aware of such convictions to disregard
them.
Clause 99A - Fit and proper person--non-corporate government bodies
615. Clause 99A would set out the relevant considerations for determining whether a person
who is a non-corporate government body is a fit and proper person for the purposes of
the Bill. A non-corporate government body would cover a body politic or a local
governing body that is not a corporation (see clause 7).
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616. The fit and proper person test would be relevant to a number of decisions in the Bill,
including the decision whether to register a biodiversity project (clause 15), the decision
whether to issue a biodiversity certificate for a registered biodiversity project (clause
70) and the decision whether to cancel a project's registration (clause 29). Generally, a
person who is a project proponent for a registered biodiversity project would be required
to be a fit and proper person. This would be a key integrity measure in the Bill.
617. This means the Regulator would be required to refuse to register a project, or to refuse
to issue a biodiversity certificate if the Regulator is not satisfied that a project proponent
for the project (or, in the case of a biodiversity certificate, the project proponent who is
applying for the certificate) is a fit and proper person. Similarly, rules made for the
purposes of clause 29 may require the Regulator to unilaterally cancel the registration of
a biodiversity project in certain circumstances where the Regulator is no longer satisfied
the project proponent for the project is a fit and proper person.
618. Subclause 99A(1) would set out the matters to which the Regulator is required to have
regard when deciding whether it is satisfied that a non-corporate government body is a
fit and proper person. These matters are:
• whether the non-corporate government body has been convicted of an offence
against, or ordered to pay a pecuniary penalty for contravening a provision of, a
Commonwealth, State or Territory law that relates to dishonesty or fraudulent
conduct, the environment, climate change or work, health or safety;
• whether the non-corporate government body has been convicted of an offence
under the Criminal Code concerning making false or misleading statements in
applications, providing false or misleading information or producing false or
misleading documents.
• whether an order has been made against the non-corporate government body
under section 76 of the CC Act or under section 224 of the Australian Consumer
Law (concerning pecuniary penalties);
• whether the non-corporate government body has contravened the Bill or the CFI
Act, the NGER Act or the ANREU Act (or rules or regulations made under any of
the above);
• whether the non-corporate government body has previously made an application
under clause 11 (application to register a biodiversity project), clause 67
(application for a biodiversity certificate), rules made for the purposes of clause
221 (voluntary accreditation of advisers) or another provision of the Bill
prescribed by the rules, that was refused on the basis that the Regulator was not
satisfied the non-corporate government body was a fit and proper person;
• any other matters required by the rules;
• any other matters the Regulator considers relevant.
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619. Subclause 99A(2) would have the effect that the Regulator would be permitted, but not
required, to have regard to the following additional matters when deciding whether a
non-corporate government body is a fit and proper person:
• whether the non-corporate government body has been convicted of an offence
against, or ordered to pay a pecuniary penalty for contravening a provision of, a
law of a foreign country that relates to dishonesty or fraudulent conduct, the
environment, climate change or work, health or safety;
• whether the non-corporate government body has, in the previous 3 years, engaged
in conduct that resulted in giving or breaching an enforceable undertaking under a
Commonwealth, State or Territory law that relates to the environment, climate
change or work, health or safety;
• any other matters prescribed by the rules;
• any other matters the Regulator considers relevant.
620. It is intended that these factors will enable the Regulator to gain a broader
understanding of the compliance history of the person without being restricted to only
considering those matters that resulted in a conviction or pecuniary penalty order. This
will enable the Regulator to make an informed decision as to whether the person is a fit
and proper person.
621. While criminal record information is sensitive information under the Privacy Act, it is
considered appropriate that the Regulator have regard to relevant convictions of the
non-corporate government body when determining whether the non-corporate
government body is a fit and proper person for the purposes of the Bill. This is because
knowledge of a person's history of compliance with relevant Australian laws (and, in
some cases, foreign laws) will assist in the Regulator's assessment of whether the
person is likely to comply, or be able to comply, with the requirements of the Bill, the
rules or the methodology determination that covers the project. This is particularly the
case where the convictions stem from offences against Australian legislation that covers
similar subject matter (such as environmental or climate-related legislation) or deals
with dishonest or fraudulent conduct. The criminal record information obtained by the
Regulator for the purposes of undertaking the fit and proper person test will be protected
information under the CER Act and will be subject to the prohibition on unauthorised
use and disclosure in section 43 of that Act.
622. Subclause 99A(3) would clarify that nothing in clause 99 would affect the operation of
Part VIIC of the Crimes Act 1914 (Crimes Act) (dealing with spent convictions).
623. Similarly, subclause 99A(4) would clarify that rules made for the purposes of
paragraphs 99A(1)(j) or 97(2)(c) (prescribing additional matters to which the Regulator
must, or may, have regard) would not be able to affect Part VIIC of the Crimes Act.
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624. The note following subclause 99A(4) would explain that Part VIIC of the Crimes Act
includes provisions that, in certain circumstances, relieve persons from the requirement
to disclose spent convictions and require persons aware of such convictions to disregard
them.
PART 9 - REPORTING AND NOTIFICATION REQUIREMENTS
GENERAL OUTLINE
625. Part 9 of the Bill would set out the provisions relating to reporting and notification
requirements. There would be a requirement for biodiversity project reports to
accompany an application for the issue of a biodiversity certificate and to be provided at
regular intervals after a biodiversity certificate has been issued by the Regulator
(Category A biodiversity project reports). Part 9 would also provide for biodiversity
project reports to be given during the period before a biodiversity certificate is issued
for a registered biodiversity project (Category B biodiversity project reports).
626. This Part would also provide requirements to notify the Regulator of various matters.
NOTES ON INDIVIDUAL CLAUSES
Division 1 - Introduction
Clause 100 - Simplified outline of this Part
627. Clause 100 would provide a simplified outline of Part 9 of the Bill. The outline is not
intended to be comprehensive and has been included to assist readers to understand the
substantive provisions of Part 9, rather than to replace these provisions. It is intended
that readers will rely on the substantive clauses of Part 9.
Division 2 - Reporting requirements
Subdivision A - Category A biodiversity project reports
Clause 101 - Category A biodiversity project reports - first report
628. Clause 101 would require an application for a biodiversity certificate in respect of a
registered biodiversity project to be accompanied by a written report about the project.
629. The report would be known as a category A biodiversity project report. It would:
• need to meet the requirements for category A biodiversity project reports in clause
103; and
• relate to the period from when the project was registered until within 6 months
before the application for a biodiversity certificate is made.
630. However, the report would not be required to cover any reporting requirement for which
the project proponent has previously provided a category B biodiversity project report
(under clause 104) for the project (subclause 101(4)). This would reduce duplication and
regulatory burden for the project proponent and the Regulator.
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631. The purpose of requiring a category A biodiversity project report to accompany an
application for a biodiversity certificate is to enable the Regulator to accurately assess
the progress of the project in achieving the biodiversity outcome to which the project
relates, and whether any other conditions or requirements in the methodology
determination have been satisfied. This is relevant to the criteria in clause 70 for issuing
biodiversity certificates.
Clause 102 - Category A biodiversity project reports - subsequent reports
632. Clause 102 would set ongoing reporting requirements in respect of registered
biodiversity projects for which a biodiversity certificate has been issued (whether or not
the certificate is still in effect).
633. This is an important integrity measure, as it would allow the Regulator to assess whether
the biodiversity outcome has been achieved and is maintained, or whether
circumstances exist that may make it appropriate for the biodiversity certificate for the
project to be relinquished (such as the occurrence of a significant reversal of
biodiversity outcome).
634. Reports required under clause 102 would also be known as category A biodiversity
project reports and would have to meet the requirements for category A biodiversity
project reports in clause 103.
635. Category A biodiversity project reports under clause 102 would be required to cover a
reporting period that is a minimum of 6 months (or a lesser minimum period specified in
the rules) and a maximum of 5 years from the end of the reporting period for the
previous Category A biodiversity project report required (either under clause 101 or
102). The obligation to provide subsequent category A biodiversity project reports
would run until the end of the permanence period (unless the project is exempted under
subclause 102(3)).
636. This would ensure the Regulator is able to monitor the project until the end of the
permanence period. If the permanence period for the project would end less than 5 years
following the end of the previous reporting period, the final category A biodiversity
project report would be required to cover the period from the end of the previous
reporting period until the end of the permanence period (whatever its length).
637. Subclause 102(3) would allow the Regulator, by written notice given to the project
proponent, to exempt a particular registered biodiversity project from the reporting
requirement in clause 102 for one or more reporting periods. This may be appropriate
for projects that have a very long permanence period. The Regulator would only be able
to exempt a registered biodiversity project from having to provide category A
biodiversity project reports if the project proponent requests the exemption, and the
Regulator is satisfied that it is appropriate to exempt the project, having regard to the
stage of the project and any other matters the Regulator considers relevant.
638. A decision under subclause 102(3) to exempt, or not to exempt, a project from the
requirement in clause 102 to provide category A biodiversity project reports would be a
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reviewable decision. This is reflected in the note following subclause 102(3), which
directs the reader to Part 20 of the Bill (dealing with reviewable decisions).
639. Subclause 102(4) would have the effect that the project proponent would be liable for a
civil penalty if they do not comply with a requirement to give the Regulator a category
A biodiversity project report required under clause 102 for a reporting period. The
maximum penalty for an individual would be 200 penalty units. A body corporate
would be liable for five times this amount as a maximum penalty (see subsection 82(5)
of the Regulatory Powers Act).
640. There would also be a continuing civil penalty provision for the purposes of section 93
of the Regulatory Powers Act (subclause 102(5)). Under section 93 of the Regulatory
Powers Act, if an act or thing is required under a civil penalty provision to be done
within a particular period or before a particular time, then the obligation to do that act or
thing continues until the act or thing is done (even if the period has expired or the time
has passed), and the person commits a separate contravention of that provision in
respect of each day during which the contravention occurs. Subclause 102(5) would
provide that the maximum civil penalty for each day that a contravention of the
requirement in clause 102 continues is 5% of the maximum civil penalty that can be
imposed in respect of the contravention. This means that an individual may be liable to
a civil penalty of 10 penalty units per day that they are contravening the requirement in
clause 102 to give the Regulator a category A biodiversity project report for a reporting
period. This is considered appropriate, given the importance of ensuring compliance
with reporting requirements in a timely manner.
Clause 103 - Requirements for category A biodiversity project reports
641. Clause 103 would set out the requirements for a category A biodiversity project report.
642. Under subclause 103(1), a category A biodiversity project report would need to:
• be given in the manner and form prescribed by the rules;
• set out any information required by the rules or the methodology determination
that covers the project;
• be accompanied by a prescribed audit report prepared by a registered greenhouse
and energy auditor - but only if required by the rules, the methodology
determination that covers the project, or by written notice from the Regulator. The
rules would set out the requirements of such a report (including the content). A
registered greenhouse and energy auditor is appointed as such under the NGER
Act;
• be accompanied by any other documents required by the rules or the methodology
determination that covers the project;
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• be given to the Regulator within 6 months after the end of the relevant reporting
period or, if the methodology determination that covers the project provides for a
longer period - that time.
643. Subclauses 103(2) would clarify that a category A biodiversity project report would be
able to deal with matters that occur before the start of the relevant reporting period.
644. Subclauses 103(3) and (6) would have the combined effect that the rules or the
methodology determination that covers the project would be able to require a category
A biodiversity report to set out information, or be accompanied by documents, that
relate to a matter arising before, during or after the reporting period.
645. Subclause 103(4) would clarify that the rules or a methodology determination would be
able to require a category A biodiversity project report be subject to audit under the Bill
if either or both of the following apply:
• the report is specified in the rules or determination (as the case may be);
• the report is for a reporting period specified in, or ascertained in accordance with,
the rules or determination (as the case may be).
646. This means that the rules or the methodology determination would be able to prescribe
either or both of the following:
• that some registered biodiversity projects (or classes of registered biodiversity
projects) will have all category A biodiversity project reports subject to audit (ie
every reporting period);
• that some registered biodiversity projects (or classes of registered biodiversity
projects) will have some category A biodiversity project reports subject to audit
while some category A biodiversity project reports are not. For example, the rules
or methodology determination might require, for a registered biodiversity project
(or class of registered biodiversity projects), a category A biodiversity project
report to be subject to audit every third reporting period.
647. Subclause 103(5) would have the effect that a requirement (imposed by the rules, the
methodology determination that covers the project or by a notice from the Regulator)
that a category A biodiversity project report be subject to audit would not apply for a
reporting period if the Regulator and the project proponent for the project have entered
into an alternative assurance agreement that applies to the project for the relevant
reporting period. The kinds of alternative assurance arrangements that a proponent
could agree with the Regulator to undertake in lieu of a subjecting a category A
biodiversity project to audit would be prescribed in the rules made for the purposes of
clause 104A of the Bill.
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Subdivision B - Category B biodiversity project reports
Clause 104 - Category B biodiversity project reports
648. Clause 104 would provide for the concept of category B biodiversity project reports.
Category B biodiversity project reports would be relevant to the period before a
biodiversity certificate has been issued for a registered biodiversity project. The purpose
of requiring reports during this period is to allow the Regulator to monitor the ongoing
progress of the project, including compliance with the requirements in the methodology
determination that covers the project and (where relevant) the implementation of the
project plan for the project.
649. Subclause 104(2) would require the project proponent for a registered biodiversity
project to give the Regulator a category B biodiversity project report for each reporting
period that is prescribed by the rules. It would be appropriate for rules to prescribe the
reporting periods for category B biodiversity project reports to allow the timing and
length of such reporting periods to be tailored to different kinds of projects and
biodiversity, as appropriate. As each biodiversity project would apply to different
activities in a different region or ecosystem, reporting requirements may need to reflect
their distinctiveness and uniqueness. In addition, not all registered biodiversity projects
may have a project plan; as such it may be appropriate for different reporting periods to
apply to projects with and without project plans.
650. Subclause 104(3) would require a category B biodiversity project report to:
• be given in the manner and form prescribed by the rules;
• set out any information required by the rules or the methodology determination
that covers the project;
• be accompanied by a prescribed audit report prepared by a registered greenhouse
and energy auditor - but only if required by the rules, the methodology
determination that covers the project, or by written notice from the Regulator. The
rules would set out the requirements of such a report (including the content). A
registered greenhouse and energy auditor is appointed as such under the NGER
Act;
• be accompanied by any other documents required by the rules or the methodology
determination that covers the project;
• be given to the Regulator within the period required by the rules.
651. Subclause 104(4) would clarify that the rules or a methodology determination may
provide that a category B biodiversity project report is subject to audit under the Bill if
either or both of the following apply:
• the report is specified in the rules or determination (as the case may be);
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• the report is for a reporting period specified in, or ascertained in accordance with,
the rules or determination (as the case may be).
652. This means that the rules or the methodology determination would be able to prescribe
either or both of the following:
• that some registered biodiversity projects (or classes of registered biodiversity
projects) will have all category B biodiversity project reports subject to audit (ie
every reporting period);
• that some registered biodiversity projects (or classes of registered biodiversity
projects) will have some category B biodiversity project reports subject to audit
while some category B biodiversity project reports are not. For example, the rules
or methodology determination might require, for a registered biodiversity project
(or class of registered biodiversity projects), a category B biodiversity project
report to be subject to audit every third reporting period.
653. Subclause 104(5) would have the effect that a requirement (imposed by the rules, the
methodology determination that covers the project or by a notice from the Regulator)
that a category B biodiversity project report must be subject to audit does not apply to a
reporting period if the Regulator and the project proponent for the project have entered
into an alternative assurance agreement that applies to the project for the relevant
reporting period. The kinds of alternative assurance arrangements that a proponent
could agree with the Regulator to undertake in lieu of subjecting a category B
biodiversity project to audit would be prescribed in the rules made for the purposes of
clause 104A of the Bill.
654. Subclauses 104(6) would clarify that a category B biodiversity project report would be
able to deal with matters that occur before the start of the relevant reporting period.
655. Subclauses 104(7) and (8) would have the combined effect that the rules or the
methodology determination that covers the project would be able to require a category B
biodiversity report to set out information, or be accompanied by documents, that relate
to a matter arising before, during or after the reporting period.
656. Subclause 104(9) would have the effect that the project proponent would be liable to a
civil penalty if they do not comply with a requirement to give the Regulator a category
B biodiversity project report for a reporting period. The maximum penalty for an
individual would be 200 penalty units. A body corporate would be liable for five times
this amount as a maximum penalty (see subsection 82(5) of the Regulatory Powers Act).
657. There would also be a continuing civil penalty provision for the purposes of section 93
of the Regulatory Powers Act (subclause 104(10)). Under section 93 of the Regulatory
Powers Act, if an act or thing is required under a civil penalty provision to be done
within a particular period or before a particular time, then the obligation to do that act or
thing continues until the act or thing is done (even if the period has expired or the time
has passed), and the person commits a separate contravention of that provision in
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respect of each day during which the contravention occurs. Subclause 104(10) would
provide that the maximum civil penalty for each day that a contravention of the
requirement in clause 104 continues is 5% of the maximum civil penalty that can be
imposed in respect of the contravention. This means that an individual may be liable to
a civil penalty of 10 penalty units per day that they are contravening the requirement in
clause 104 to give the Regulator a category B biodiversity project report. This is
considered appropriate, given the importance of ensuring compliance with reporting
requirements in a timely manner.
Subdivision C - Alternative assurance agreements
Clause 104A - Alternative assurance agreements
658. Clause 104A would allow the Regulator and the project proponent for a registered
biodiversity project to enter into a written agreement (known as an alternative assurance
agreement) that applies to a specified reporting period. An alternative assurance
agreement must be for the purpose of providing assurance to the Regulator about the
project proponent's compliance with the Bill (including the rules and other legislative
instruments under the Bill) and must contain one or more alternative assurance
measures.
659. The rules would prescribe the kinds of alternative assurance measures that may be
agreed to by the Regulator and the project proponent in an alternative assurance
agreement. It is appropriate that such measures are prescribed in the rules, as different
measures are likely to be appropriate for different kinds of projects, different
biodiversity outcomes or different stages of the project. As such, prescribing alternative
assurance measures in the rules will allow such measures to be appropriately tailored to
meet the needs of the relevant projects.
660. An alternative assurance agreement would not be mandatory. The purpose of providing
for alternative assurance agreements is to allow project proponents the option, in
appropriate circumstances, of undertaking particular measures to assure the Regulator of
their compliance with the Bill, instead of having to get their category A or B
biodiversity project reports audited. A requirement (imposed by the rules, the
methodology determination that covers the project or by a notice from the Regulator)
that a category A or B biodiversity project report must be subject to audit would not
apply to a reporting period if the Regulator and the project proponent for the project
have entered into an alternative assurance agreement that applies to the project for the
relevant reporting period (see subclauses 103(5) and 104(5)).
661. This would provide appropriate flexibility for proponents, without compromising
environmental standards or market confidence.
Division 3 - Notification requirements
Clause 105 - Notification requirement - project proponent ceases to have right to carry
out project
662. The notification requirement in clause 105 would apply if:
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• an eligible person who is a project proponent of a registered biodiversity project
ceases to have a right that is necessary for the project to be carried out; and
• the result is that there is no longer a project proponent for that project that has the
necessary right to carry out the project (subclauses 105(1) and (2)).
663. This will be the case if the sole project proponent for a registered biodiversity project
ceases to have the right to carry the project out. It would also be the case for projects
with multiple project proponents, in the circumstances that one project proponent
ceasing to have a right that is necessary to carry out the project means that no remaining
project proponent for the project has the necessary right.
664. A right that is necessary to carry out the project may involve ownership or possession of
the land that is the project area. For instance, if a project proponent holds a lease over
the project area, and that lease is cancelled, the project proponent would no longer have
a right to carry out the project on the project area.
665. In these circumstances, the eligible person would be required to notify the Regulator of
the cessation of the right, within 90 days of the cessation occurring (subclause 105(3)).
666. The eligible person would be liable to a civil penalty if they do not comply with the
requirement to notify the Regulator of the cessation of the right. The maximum penalty
for an individual would be 200 penalty units. A body corporate would be liable for five
times this amount as a maximum penalty (see subsection 82(5) of the Regulatory
Powers Act).
667. There would also be a continuing civil penalty provision for the purposes of section 93
of the Regulatory Powers Act (subclause 105(4)). Under section 93 of the Regulatory
Powers Act, if an act or thing is required under a civil penalty provision to be done
within a particular period or before a particular time, then the obligation to do that act or
thing continues until the act or thing is done (even if the period has expired or the time
has passed), and the person commits a separate contravention of that provision in
respect of each day during which the contravention occurs. Subclause 105(4) would
provide that the maximum civil penalty for each day that a contravention of the
requirement in clause 105 continues is 5% of the maximum civil penalty that can be
imposed in respect of the contravention. This means that an individual may be liable to
a civil penalty of 10 penalty units per day that they are contravening the requirement in
clause 105. This is considered appropriate, given the importance of ensuring the
information about the cessation of project proponent's right to carry out the project is
notified to the Regulator in a timely manner.
Clause 106 - Notification requirement - withdrawal or cessation of regulatory approval
668. The notification requirement in clause 106 would apply if a regulatory approval
required for a registered biodiversity project to be carried out is withdrawn or otherwise
ceases to have effect, for any reason (subclause 106(1)).
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669. A regulatory approval required for a project to be carried out may be under
Commonwealth, State or Territory or local government laws (such as water or
environmental regulations, or work health and safety laws).
670. In these circumstances, the project proponent for the project would be required to notify
the Regulator of the withdrawal or cessation of the regulatory approval, within 90 days
of the withdrawal or cessation occurring (subclause 106(2)).
671. The project proponent would be liable to a civil penalty if they do not comply with the
requirement to notify the Regulator of the withdrawal or cessation of the regulatory
approval. The maximum penalty for an individual would be 200 penalty units. A body
corporate would be liable for five times this amount as a maximum penalty (see
subsection 82(5) of the Regulatory Powers Act).
672. There would also be a continuing civil penalty provision for the purposes of section 93
of the Regulatory Powers Act (subclause 105(3)). Under section 93 of the Regulatory
Powers Act, if an act or thing is required under a civil penalty provision to be done
within a particular period or before a particular time, then the obligation to do that act or
thing continues until the act or thing is done (even if the period has expired or the time
has passed), and the person commits a separate contravention of that provision in
respect of each day during which the contravention occurs. Subclause 106(3) would
provide that the maximum civil penalty for each day that a contravention of the
requirement in clause 106 continues is 5% of the maximum civil penalty that can be
imposed in respect of the contravention. This means that an individual may be liable to
a civil penalty of 10 penalty units per day that they are contravening the requirement in
clause 106. This is considered appropriate, given the importance of ensuring the
information about the withdrawal or cessation of a regulatory approval required to carry
out the project is notified to the Regulator in a timely manner.
Clause 107 - Notification requirement - death of project proponent
673. The notification requirement in clause 107 would apply if a person who is the project
proponent for a registered biodiversity project dies (subclause 107(1)).
674. In these circumstances, the person's legal representative would be required to notify the
Regulator in writing of the death within 90 days of the death occurring. The notification
would be required to be in writing (subclause 107(2)).
675. The person's legal representative would be liable to a civil penalty if they do not comply
with the requirement to notify the Regulator of the project proponent's death. The
maximum penalty for an individual would be 60 penalty units. A body corporate would
be liable for five times this amount as a maximum penalty (see subsection 82(5) of the
Regulatory Powers Act).
676. There would also be a continuing civil penalty provision for the purposes of section 93
of the Regulatory Powers Act (subclause 107(3)). Under section 93 of the Regulatory
Powers Act, if an act or thing is required under a civil penalty provision to be done
within a particular period or before a particular time, then the obligation to do that act or
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thing continues until the act or thing is done (even if the period has expired or the time
has passed), and the person commits a separate contravention of that provision in
respect of each day during which the contravention occurs. Subclause 107(3) would
provide that the maximum civil penalty for each day that a contravention of the
requirement in clause 107 continues is 5% of the maximum civil penalty that can be
imposed in respect of the contravention. This means that an individual may be liable to
a civil penalty of 3 penalty units per day that they are contravening the requirement in
clause 107. This is considered appropriate, given the importance of ensuring the
information about a project proponent's death is notified to the Regulator in a timely
manner.
Clause 108 - Notification requirement - methodology determinations
677. The notification requirement in clause 108 would apply where a methodology
determination that covers a registered biodiversity project requires the project proponent
for that project to notify the Regulator of one or more matters relating to the project
(subclause 108(1)). For example, a methodology determination may require the project
proponent for a registered biodiversity project covered by that methodology
determination to notify the Regulator of a livestock exclusion fence failure and
significant grazing and trampling of plants and soil loss impacts to a saltmarsh
migratory bird habitat being restored in the project area. Another example would be that
a methodology determination may require the project proponent for a registered
biodiversity project covered by that methodology determination to notify the Regulator
of a recent flood and significant losses of ecological plantings along a river in the
project area.
678. Subclause 108(2) would require the project proponent to comply with any such
requirement.
679. It is appropriate that some notification requirements may be imposed by the applicable
methodology determination rather than the Bill. This is because a methodology
determination will deal with matters unique to the kinds of registered biodiversity
projects covered by that determination. Methodology determinations would be
legislative instruments made by the Minister on the advice of the Nature Repair Market
Committee (see clauses 45 and 47) and would be subject to ordinary parliamentary
scrutiny processes, including disallowance and sunsetting.
680. The project proponent for a registered biodiversity project would be liable to a civil
penalty if they do not comply with a notification requirement in the methodology
determination that covers the project. The maximum penalty for an individual would be
60 penalty units. A project proponent that is a body corporate would be liable for five
times this amount as a maximum penalty (see subsection 82(5) of the Regulatory
Powers Act).
681. Where the methodology determination requires the notification be made within a
specified time period, there would also be a continuing civil penalty provision for the
purposes of section 93 of the Regulatory Powers Act (subclause 95(3)). Under section
93 of the Regulatory Powers Act, if an act or thing is required under a civil penalty
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provision to be done within a particular period or before a particular time, then the
obligation to do that act or thing continues until the act or thing is done (even if the
period has expired or the time has passed), and the person commits a separate
contravention of that provision in respect of each day during which the contravention
occurs. Subclause 108(3) would provide that the maximum civil penalty for each day
that a contravention of the requirement in clause 108 continues is 5% of the maximum
civil penalty that can be imposed in respect of the contravention. This means that an
individual may be liable to a civil penalty of 3 penalty units per day that they are
contravening the requirement in clause 108. This is considered appropriate, given the
importance of ensuring a notification requirement imposed by a methodology
determination is complied with in a timely manner.
Clause 109 - Notification requirement - reversal of biodiversity outcome
682. The notification requirement in clause 109 would apply where the project proponent for
a registered biodiversity project becomes aware of a significant reversal of the
biodiversity outcome to which the project relates (subclause 109(1)).
683. The notification requirement would only apply where the reversal of the biodiversity
outcome is taken to be a significant reversal. The note following subclause 109(1)
would refer the reader to clause 111 of the Bill, which would allow the rules to prescribe
circumstances in which, relevantly, there is taken to be a significant reversal of a
biodiversity outcome to which a registered biodiversity project relates. For instance, the
rules might provide that a significant reversal in biodiversity outcome is where the
applicable methodology determination provides for the restoration of native forest and
the project proponent clears trees on the project area. Another example could be
inadvertent clearing of some or all of the project area by the proponent, especially in
situations where clearing resulted in significant loss of habitat.
684. In these circumstances, the project proponent for the project would be required to notify
the Regulator of the reversal within 60 days of the project proponent becoming aware of
the reversal (subclause 109(2)).
685. The project proponent would be liable to a civil penalty if they do not comply with the
requirement to notify the Regulator of the significant reversal of biodiversity outcome.
The maximum penalty for an individual would be 200 penalty units. A body corporate
would be liable for five times this amount as a maximum penalty (see subsection 82(5)
of the Regulatory Powers Act).
686. There would also be a continuing civil penalty provision for the purposes of section 93
of the Regulatory Powers Act (subclause 109(3) and the note following subclause
109(3)). Under section 93 of the Regulatory Powers Act, if an act or thing is required
under a civil penalty provision to be done within a particular period or before a
particular time, then the obligation to do that act or thing continues until the act or thing
is done (even if the period has expired or the time has passed), and the person commits a
separate contravention of that provision in respect of each day during which the
contravention occurs. Subclause 109(3) would provide that the maximum civil penalty
for each day that a contravention of the requirement in clause 109 continues is 5% of the
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maximum civil penalty that can be imposed in respect of the contravention. This means
that an individual may be liable to a civil penalty of 10 penalty units per day that they
are contravening the requirement in clause 109. This is considered appropriate, given
the importance of ensuring that information about a significant reversal of a biodiversity
outcome that relates to a registered biodiversity project is notified to the Regulator in a
timely manner.
Clause 110 - Notification requirement - event or conduct that causes, or is likely to
cause, reversal of biodiversity outcome
687. The notification requirement in clause 110 would apply where the project proponent for
a registered biodiversity project becomes aware of any of the following:
• a natural disturbance that causes, or is likely to cause, a significant reversal of the
biodiversity outcome to which the project relates;
• conduct engaged in by the project proponent for the project, or any other person,
that causes, or is likely to cause, a significant reversal of the biodiversity outcome
to which the project relates.
688. The notification requirement would only apply where the reversal of the biodiversity
outcome is taken to be a significant reversal. For example, a major bushfire or cyclone
could result in significant loss of habitat and endangered species. The note following
subclause 110(1) would refer the reader to clause 111 of the Bill, which would allow the
rule to prescribe circumstances in which, relevantly, there is taken to be a significant
reversal of a biodiversity outcome to which a registered biodiversity project relates.
689. In these circumstances, the project proponent for the project would be required to notify
the Regulator of the relevant matter within 60 days of the project proponent becoming
aware of the matter (subclause 110(2)).
690. The project proponent would be liable to a civil penalty if they do not comply with the
requirement to notify the Regulator of the natural disturbance or conduct that causes, or
is likely to cause, a significant reversal of a biodiversity outcome to which the project
relates. The maximum penalty for an individual would be 200 penalty units. A body
corporate would be liable for five times this amount as a maximum penalty (see
subsection 82(5) of the Regulatory Powers Act).
691. There would also be a continuing civil penalty provision for the purposes of section 93
of the Regulatory Powers Act (subclause 110(3) and the note following subclause
110(3)). Under section 93 of the Regulatory Powers Act, if an act or thing is required
under a civil penalty provision to be done within a particular period or before a
particular time, then the obligation to do that act or thing continues until the act or thing
is done (even if the period has expired or the time has passed), and the person commits a
separate contravention of that provision in respect of each day during which the
contravention occurs. Subclause 110(3) would provide that the maximum civil penalty
for each day that a contravention of the requirement in clause 110 continues is 5% of the
maximum civil penalty that can be imposed in respect of the contravention. This means
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that an individual may be liable to a civil penalty of 10 penalty units per day that they
are contravening the requirement in clause 110. This is considered appropriate, given
the importance of ensuring that information about a significant reversal of a biodiversity
outcome that relates to a registered biodiversity project is notified to the Regulator in a
timely manner.
Clause 111 - Significant reversals in biodiversity outcomes - notification requirements
692. Under clause 111, the rules would be able to prescribe circumstances in which there has
been a reversal of biodiversity outcome to which a registered biodiversity project relates
and whether or not the reversal of the biodiversity outcome is taken to be significant.
693. Rules made prescribing these circumstances would be relevant to clauses 109 and 110,
which would require the project proponent for a registered biodiversity project to notify
the Regulator of a significant reversal of a biodiversity outcome to which the project
relates or certain events causing or likely to cause such.
694. Subclause 111(2) would clarify that clause 111 would not limit clause 148, which would
provide for significant reversals in biodiversity outcomes for the purposes of
relinquishment requirements (which may be different).
695. It would be appropriate for rules to prescribe these circumstances to allow the necessary
detail to be included and to allow circumstances to be tailored to different kinds of
projects and biodiversity, as appropriate. As each biodiversity project would apply to
different activities in a different region or ecosystem, notification requirements may
need to reflect their distinctiveness and uniqueness. The rules would be subject to
ordinary Parliamentary scrutiny processes, including disallowance and sunsetting.
Clause 112 - Notification requirement - event relevant to whether a project proponent
is a fit and proper person
696. The notification requirement in clause 112 would apply to a project proponent of a
registered biodiversity project in the event that certain events relating to the fit and
proper person test (in clauses 97 to 99A) occur.
697. The relevant events would be:
• Where the project proponent is an individual:
i. the individual is convicted of an offence against, or ordered to pay a
pecuniary penalty for contravening a provision of, a Commonwealth, State
or Territory law that relates to dishonesty or fraudulent conduct, the
environment, climate change or work, health or safety;
ii. the individual is convicted of an offence under the Criminal Code
concerning making false or misleading statements in applications,
providing false or misleading information or producing false or misleading
documents;
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iii. an order is made against the individual under section 76 of the CC Act or
under section 224 of the Australian Consumer Law (concerning pecuniary
penalties);
iv. the individual is an insolvent under administration;
v. the individual is convicted of an offence against, or ordered to pay a
pecuniary penalty for contravening a provision of, a law of a foreign
country that relates to dishonesty or fraudulent conduct, the environment,
climate change or work, health or safety.
• Where the project proponent is a corporation:
i. the corporation (or an executive officer of the corporation) is convicted of
an offence against, or ordered to pay a pecuniary penalty for contravening
a provision of, a Commonwealth, State or Territory law that relates to
dishonesty or fraudulent conduct, the environment, climate change or
work, health or safety;
ii. the corporation (or an executive officer of the corporation) is convicted of
an offence under the Criminal Code concerning making false or
misleading statements in applications, providing false or misleading
information or producing false or misleading documents;
iii. an order is made against the corporation (or an executive officer of the
corporation) under section 76 of the CC Act or under section 224 of the
Australian Consumer Law (concerning pecuniary penalties);
iv. the corporation is a corporation under external administration;
v. the corporation (or an executive officer of the corporation) is convicted of
an offence against, or ordered to pay a pecuniary penalty for contravening
a provision of, a law of a foreign country that relates to dishonesty or
fraudulent conduct, the environment, climate change or work, health or
safety.
• Where the project proponent is a trust:
i. the trust (or a trustee of the trust) is convicted of an offence against, or
ordered to pay a pecuniary penalty for contravening a provision of, a
Commonwealth, State or Territory law that relates to dishonesty or
fraudulent conduct, the environment, climate change or work, health or
safety;
ii. the trust (or a trustee of the trust) is convicted of an offence under the
Criminal Code concerning making false or misleading statements in
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applications, providing false or misleading information or producing false
or misleading documents;
iii. an order is made against the trust (or a trustee of the trust) under section 76
of the CC Act or under section 224 of the Australian Consumer Law
(concerning pecuniary penalties);
iv. a trustee of the trust is a body corporate under external administration or
an insolvent under administration;
v. the trust (or a trustee of the trust) is convicted of an offence against, or
ordered to pay a pecuniary penalty for contravening a provision of, a law
of a foreign country that relates to dishonesty or fraudulent conduct, the
environment, climate change or work, health or safety.
• Where the project proponent is a non-corporate government body:
i. The non-corporate government body is convicted of an offence against, or
ordered to pay a pecuniary penalty for contravening a provision of, a
Commonwealth, State or Territory law that relates to dishonesty or
fraudulent conduct, the environment, climate change or work, health or
safety;
ii. the non-corporate government body is convicted of an offence under the
Criminal Code concerning making false or misleading statements in
applications, providing false or misleading information or producing false
or misleading documents;
iii. an order is made against the non-corporate government body under section
76 of the CC Act or under section 224 of the Australian Consumer Law
(concerning pecuniary penalties);
iv. the non-corporate government body is convicted of an offence against, or
ordered to pay a pecuniary penalty for contravening a provision of, a law
of a foreign country that relates to dishonesty or fraudulent conduct, the
environment, climate change or work, health or safety.
698. Clause 112 would have the effect that the project proponent would be required to notify
the Regulator of any of the above events relating to the fit and proper person test within
90 days of the event occurring.
699. The exception is where the breach consists of a breach of the Bill (including a
legislative instrument made under the Bill) or a climate change law (within the meaning
of the CER Act). The purpose of this exception is to reduce unnecessary duplication and
regulatory burden, as the Regulator would already have this information.
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700. The project proponent would be liable to a civil penalty if they do not comply with the
requirement to notify the Regulator of a relevant event relating to the fit and proper
person test. The maximum penalty for an individual would be 200 penalty units. A body
corporate would be liable for five times this amount as a maximum penalty (see
subsection 82(5) of the Regulatory Powers Act).
701. There would also be a continuing civil penalty provision for the purposes of section 93
of the Regulatory Powers Act (subclause 112(4) and the note following subclause
112(4)). Under section 93 of the Regulatory Powers Act, if an act or thing is required
under a civil penalty provision to be done within a particular period or before a
particular time, then the obligation to do that act or thing continues until the act or thing
is done (even if the period has expired or the time has passed), and the person commits a
separate contravention of that provision in respect of each day during which the
contravention occurs. Subclause 112(4) would provide that the maximum civil penalty
for each day that a contravention of the requirement in clause 112 continues is 5% of the
maximum civil penalty that can be imposed in respect of the contravention. This means
that an individual may be liable to a civil penalty of 10 penalty units per day that they
are contravening the requirement in clause 112. This is considered appropriate, given
the importance of ensuring that information relevant to whether the project proponent
continues to satisfy the fit and proper person test is notified to the Regulator in a timely
manner.
Clause 113 - Notification requirement - variation of project plan
702. The notification requirement in clause 113 would apply to registered biodiversity
projects that have a project plan.
703. A project plan would be defined in clause 7 in relation to a biodiversity project, to set
out how the project is intended to be carried out and how the project is intended to
achieve the biodiversity outcome for the project. A project plan would also be required
to be consistent with the methodology determination that covers the project, and include
such information, and comply with such requirements, as are specified in the rules or
the methodology determination that covers the project.
704. Subclause 113(1) would have the effect that the project proponent for a registered
biodiversity project that has a project plan would have to notify the Regulator of the
details of a variation made to the project plan, and the date the variation took effect. The
notification would be required to be made within 60 days after the variation has taken
effect. The project proponent would also be required to give the Regulator a copy of the
project plan as varied.
705. The notification requirement in subclause 113(1) would not apply to a variation of a
project plan that is of a minor nature.
706. The purpose of requiring notification of variations in project plans for registered
biodiversity projects is so that the Regulator is aware of how the project is being carried
out, which will be relevant to whether the biodiversity outcome for the project is likely
to be achieved. While a variation to a project plan would not require the Regulator's
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approval, it is important that the Regulator is aware of such variations. This is because if
the Regulator is satisfied that the project is not being carried out in a way that is likely
to achieve a biodiversity outcome or other enhancement or protection of biodiversity,
the Regulator may decide not to issue a biodiversity certificate for the project (see
clause 70). In these circumstances the Regulator may also decide to cancel the project's
registration under rules made for the purposes of subclause 27(1) of the Bill.
707. The project proponent would be liable to a civil penalty if they do not comply with the
requirement to notify the Regulator of a non-minor variation to a project plan for a
registered biodiversity project. The maximum penalty for an individual would be 60
penalty units. A body corporate would be liable for five times this amount as a
maximum penalty (see subsection 82(5) of the Regulatory Powers Act).
708. There would also be a continuing civil penalty provision for the purposes of section 93
of the Regulatory Powers Act (subclause 113(2) and the note following subclause
113(2)). Under section 93 of the Regulatory Powers Act, if an act or thing is required
under a civil penalty provision to be done within a particular period or before a
particular time, then the obligation to do that act or thing continues until the act or thing
is done (even if the period has expired or the time has passed), and the person commits a
separate contravention of that provision in respect of each day during which the
contravention occurs. Subclause 113(2) would provide that the maximum civil penalty
for each day that a contravention of the requirement in subclause 113(1) continues is 5%
of the maximum civil penalty that can be imposed in respect of the contravention. This
means that an individual may be liable to a civil penalty of 3 penalty units per day that
they are contravening the requirement in subclause 113(1). This is considered
appropriate, given the importance of ensuring that information about a variation to a
project plan for a registered biodiversity project is notified to the Regulator in a timely
manner.
709. Subclause 113(3) would apply in the event of a minor variation to a project plan. It
would allow the Regulator to, by written notice, require the project proponent to give
the Regulator a copy of the project plan as varied within 60 days after the notice is
given. This would ensure the Regulator has a copy of the most updated version of the
project plan.
710. The project proponent would be liable to a civil penalty if they do not comply with the
requirement to give the Regulator a copy of the project plan as varied. The maximum
penalty for an individual would be 60 penalty units. A body corporate would be liable
for five times this amount as a maximum penalty (see subsection 82(5) of the
Regulatory Powers Act).
711. There would also be a continuing civil penalty provision for the purposes of section 93
of the Regulatory Powers Act (subclause 113(4) and the note following subclause
113(4)). Under section 93 of the Regulatory Powers Act, if an act or thing is required
under a civil penalty provision to be done within a particular period or before a
particular time, then the obligation to do that act or thing continues until the act or thing
is done (even if the period has expired or the time has passed), and the person commits a
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separate contravention of that provision in respect of each day during which the
contravention occurs. Subclause 113(4) would provide that the maximum civil penalty
for each day that a contravention of the requirement in clause 113(3) continues is 5% of
the maximum civil penalty that can be imposed in respect of the contravention. This
means that an individual may be liable to a civil penalty of 3 penalty units per day that
they are contravening the requirement in subclause 113(3). This is considered
appropriate, given the importance of ensuring that the most up to date version of a
project plan for a registered biodiversity project is given to the Regulator in a timely
manner.
Clause 114 - The rules may impose notification requirements
712. Clause 114 would allow the rules to impose additional notification requirements. The
rules would be able to make provision requiring the project proponent of a registered
biodiversity project to notify the Regulator of a matter within a period specified in the
rules (subclause 114(1)).
713. Subclause 114(2) would require rules made for the purpose of subclause 114(1) to only
require the notification of matters relevant to the operation of the Bill.
714. It would be appropriate for the rules to be able to make provision for notification
requirements for a matter relevant to the operation of this Bill. This would provide the
discretion and flexibility that is necessary to allow the market to develop whilst ensuring
that all matters relevant to the operation of the Bill can be captured. In addition, it would
allow the rules to be tailored to different kinds of projects or biodiversity. However, the
criteria set out at subclauses 114(1) and (2) would set appropriate parameters in the Bill
that the Minister would need to comply with when making such rules. The rules would
be subject to ordinary Parliamentary scrutiny processes, including disallowance and
sunsetting.
715. If a person is subject to a requirement under rules made for the purposes of subclause
114(1), the person would be required to notify the Regulator of the relevant matter
within the period specified in the rules (subclause 114(3)).
716. The project proponent would be liable to a civil penalty if they do not comply with the
requirement to notify the Regulator of the matter required by the rules. The maximum
penalty for an individual would be 60 penalty units. A body corporate would be liable
for five times this amount as a maximum penalty (see subsection 82(5) of the
Regulatory Powers Act).
717. There would also be a continuing civil penalty provision for the purposes of section 93
of the Regulatory Powers Act (subclause 114(4) and the note following subclause
114(4)). Under section 93 of the Regulatory Powers Act, if an act or thing is required
under a civil penalty provision to be done within a particular period or before a
particular time, then the obligation to do that act or thing continues until the act or thing
is done (even if the period has expired or the time has passed), and the person commits a
separate contravention of that provision in respect of each day during which the
contravention occurs. Subclause 114(4) would provide that the maximum civil penalty
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for each day that a contravention of the requirement in clause 114 continues is 5% of the
maximum civil penalty that can be imposed in respect of the contravention. This means
that an individual may be liable to a civil penalty of 3 penalty units per day that they are
contravening the requirement in clause 114. This is considered appropriate, given the
importance of ensuring that information that is relevant to the operation of the Act is
notified to the Regulator in a timely manner.
PART 10 - INFORMATION-GATHERING POWERS
GENERAL OUTLINE
718. Part 10 of the Bill would set out the information-gathering powers that may be exercised
by the Regulator in order to monitor general compliance or to undertake more specific
investigations into suspected breaches.
719. The provisions in this Part are not intended to abrogate the privilege against self-
incrimination
NOTES ON INDIVIDUAL CLAUSES
Clause 115 - Simplified outline of this Part
720. Clause 115 would provide a simplified outline of Part 10 of the Bill. The outline is not
intended to be comprehensive and has been included to assist readers to understand the
substantive provisions of Part 10, rather than to replace these provisions. It is intended
that readers will rely on the substantive clauses of Part 10.
Clause 116 - Regulator may obtain information or documents
721. Clause 116 would allow the Regulator, by written notice, to require a person to give to
the Regulator specified documents or information, or to make copies of specified
documents and to give those copies to the Regulator.
722. The Regulator would only be able to exercise the power in clause 116 to give a notice to
a person if the Regulator believes, on reasonable grounds, that the person has
information or documents that are relevant to the operation of the Bill (including the
rules or another legislative instrument made under the Bill, or a relevant offence of the
Crimes Act or Criminal Code).
723. A notice given under clause 116 must relate to particular information or documents that
are specified in the notice. It would not be able to be used to determine whether a person
possessed incriminating documents, or to ensure that the person's operations were in
compliance with the Bill. In such circumstances, it would be appropriate for the
Regulator to instead use the audit powers in the Bill (see Part 11) or the monitoring
powers under the Regulatory Powers Act, as applied to this Bill (see Part 18 of the Bill).
724. The documents or information must be given in the manner and within the timeframe
specified in the notice. Subclause 116(3) would require the period specified in the notice
must be no less than 14 days after the notice is given.
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725. Subclause 116(4) would have the effect that a person would be liable for a civil penalty
if they do not comply with the requirement in clause 116 to provide information or
documents (specified in a written notice) to the Regulator. The maximum penalty for an
individual would be 60 penalty units. A body corporate would be liable for five times
this amount as a maximum penalty (see subsection 82(5) of the Regulatory Powers Act).
726. There would also be a continuing civil penalty provision for the purposes of section 93
of the Regulatory Powers Act (subclause 116(5) and the note following subclause
116(5)). Under section 93 of the Regulatory Powers Act, if an act or thing is required
under a civil penalty provision to be done within a particular period or before a
particular time, then the obligation to do that act or thing continues until the act or thing
is done (even if the period has expired or the time has passed), and the person commits a
separate contravention of that provision in respect of each day during which the
contravention occurs. Subclause 116(5) would provide that the maximum civil penalty
or each day that a contravention of the requirement in clause 116 continues is 5% of the
maximum civil penalty that can be imposed in respect of the contravention. This means
that an individual may be liable to a civil penalty of 3 penalty units per day that they are
contravening the requirement in clause 116. This is considered appropriate, given the
importance of ensuring that information or documents that are relevant to the operation
of the Bill is provided to the Regulator in a timely manner.
727. The requirement in clause 116 is not intended to override the common law privilege
against self-incrimination or the common law penalty privilege. The privilege against
self-incrimination would prevent the use of potentially self-incriminating information,
or any other information, document or thing obtained as a direct or indirect consequence
of giving the potentially self-incriminating information, in all criminal proceedings. In
contrast, penalty privilege is the privilege against self-exposure to a civil or
administrative penalty. It is a common law privilege that applies in the context of
judicial proceedings and may be claimed by an individual to resist compulsion in the
course of such proceedings.
728. This means that an individual would not be required to comply with a notice given
under clause 116 if the information or document requested would tend to incriminate
that person. However, the common law privileges against self-incrimination or self-
exposure do not apply to a body corporate. As such, a body corporate would be required
to comply with a notice given under clause 116 to produce information or documents,
even if that information or those documents would tend to incriminate the body
corporate.
Clause 117 - Copying documents - compensation
729. Clause 117 would have the effect that where a person is required (under clause 116) to
make copies of documents and produce those documents to the Regulator, the person
would be entitled to reasonable compensation paid by the Regulator (on behalf of the
Commonwealth).
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Clause 118 - Copies of documents
730. Clause 118 would allow the Regulator to inspect, and make copies of, a document that a
person is required to produce under clause 116, and to retain a copy of any documents
produced.
Clause 119 - Regulator may retain documents
731. Under clause 119, the Regulator would be able to take documents produced under
clause 116 and retain possession of such documents for as long as is necessary.
732. However, if the Regulator retains possession of a document, the Regulator would be
required to provide a certified copy of that document to the person who would otherwise
be entitled to possession of that document (subclause 119(2)). The certified copy would
be required to be provided as soon as practicable. Until the certified copy is provided,
the person who would otherwise be entitled to possession of the document must be
allowed to inspect, make copies of, or take extracts from, the document (subclause
119(4)).
733. Subclause 119(3) would have the effect that the certified copy must be received in all
courts and tribunals as evidence as if it were the original. This is to ensure the person
who otherwise would be entitled to possess the document would not be disadvantaged
by the Regulator retaining possession of it.
PART 11 - AUDITS
GENERAL OUTLINE
734. Part 11 of the Bill would provide that the Regulator may require audits to be carried out
concerning one or more aspects of a person's compliance with the Bill and associated
provisions. A robust audit framework would provide buyers of biodiversity certificates
confidence in the value of a certificate and in the biodiversity outcomes that an
associated registered biodiversity project has achieved or will achieve.
735. Audits would also be part of the reporting framework in Part 9 of the Bill. However,
unlike audits under Part 11, audits under Part 9 would not require a reasonable suspicion
of non-compliance with the Bill and would need to satisfy the requirements in that Part.
736. Part 11 would also authorise audit information to be used or disclosed by an audit team
leader or a person assisting an audit team leader for a number of purposes, and would
impose a secrecy provision to protect the unauthorised use or disclosure of certain
harmful audit information (known as protected audit information).
NOTES ON INDIVIDUAL CLAUSES
Division 1 - Introduction
Clause 120 - Simplified outline of this Part
737. Clause 120 would provide a simplified outline of Part 11 of the Bill. The outline is not
intended to be comprehensive and has been included to assist readers to understand the
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substantive provisions of Part 11, rather than to replace these provisions. It is intended
that readers will rely on the substantive clauses of Part 11.
Division 2 - Audits
Clause 121 - Compliance audits
738. Clause 121 provides for a compliance audit for a person who is, or has been, the project
proponent for a registered biodiversity project. A compliance audit would only be
available where the Regulator has reasonable grounds to suspect that the person has
contravened, is contravening or is proposing to contravene, the Bill (including the rules
or another legislative instrument made under the Bill) (subclause 121(1)).
739. The audits in Part 11 would not be the only kinds of audits under the Bill. Audits would
also be part of the reporting framework in Part 9 of the Bill (see clauses 101 to 104A).
However, unlike audits under Part 11, audits under Part 9 would not require a
reasonable suspicion of non-compliance with the Bill and would need to satisfy the
requirements in that Part. For instance, a biodiversity project report may be subject to
audit under Part 9. In addition, an application to register a biodiversity project, or for a
biodiversity certificate, may also be subject to audit under Parts 2 or 5 (respectively) of
the Bill.
740. A compliance audit under clause 121 would be an audit of one or more aspects of the
person's compliance with the Bill (including the rules or another legislative instrument
made under the Bill). Unlike other audits (under clause 122), subclause 121(2) would
make it clear that a compliance audit would involve the Regulator requiring, by written
notice, the person being audited to:
• appoint an audit team leader; and
• arrange for the audit team leader to carry out the audit and to give the person a
written report setting out the results of the audit; and
• give the Regulator a copy of the audit report on or before a day specified in the
notice.
741. In other words, the person being audited would be responsible for arranging a
compliance audit under clause 121 and paying any expenses associated with the audit.
742. The audit team leader that is appointed to carry out the audit would be required to be a
registered greenhouse and energy auditor (within the meaning of the NGER Act). If the
notice from the Regulator specifies that the person must appoint a specific auditor (or
must appoint an auditor from a list of auditors provided by the Regulator), the person
must comply with this requirement. If the notice does not specify a specific auditor or
list of auditors, the person would be able to appoint a registered greenhouse and energy
auditor of their choice.
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743. The note following subclause 121(2) would refer the reader to section 75 of the NGER
Act, which deals with the conduct of an audit by a registered greenhouse and energy
auditor.
744. Subclause 121(3) would require the notice to specify the type of audit to be carried out,
the matters to be covered by the audit, the form of the audit report and the kinds of
details it is to contain.
745. Subclauses 121(4) to (8) would create two civil penalty provisions relating to
compliance audits.
746. The first civil penalty provision would be in subclause 121(4). This provision would
require a person to provide the audit team leader, and any other persons assisting the
audit team leader, with all reasonable facilities and assistance necessary for the effective
exercise of the audit team leader's duties under the Bill. Failure to do so would be a
breach of a civil penalty provision. The maximum penalty for an individual would be 60
penalty units. A body corporate would be liable for five times this amount as a
maximum penalty (see subsection 82(5) of the Regulatory Powers Act).
747. Subclauses 121(5) and (6) would clarify the scope of the civil penalty provision in
subclause 121(4):
• subclause 121(5) would clarify that providing assistance that is reasonably
necessary includes complying with any request under clause 123 of the Bill that
relates to the audit. Clause 123 would allow an audit team leader or a person
assisting an audit team leader to, in certain circumstances, request a person to
provide any documents or information that is relevant to the audit;
• subclause 121(6) would clarify that the civil penalty provision in subclause 121(4)
would not require a person to allow an audit team leader or a person assisting an
audit team leader to enter premises, take samples of anything on premises or
inspect anything on premises.
i. This is an important distinction - audits are intended to be about
monitoring compliance with the Bill through checking documentation and
information; they are not intended to involve coercive powers. If the
Regulator considered it necessary to enter premises of a person, or to take
samples or inspect things on that premises, the Regulator would need to
exercise the monitoring and enforcement powers in Part 18 of the Bill and
to comply with the limitations of those powers (including the requirement
to obtain consent or a warrant to enter premises).
748. Subclause 121(7) would contain the second civil penalty provision. This provision
would have the effect that failure by a person to comply with a notice given under
subclause 121(2) (requiring the person to arrange for an audit team leader to carry out a
compliance audit on the person's compliance with the Bill) would be a contravention of
a civil penalty provision. The maximum penalty for an individual would be 200 penalty
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units. A body corporate would be liable for five times this amount as a maximum
penalty (see subsection 82(5) of the Regulatory Powers Act).
749. The civil penalty provisions in subclause 121(7) would also be a continuing civil
penalty provision for the purposes of section 93 of the Regulatory Powers Act
(subclause 121(8) and the note following subclause 121(8)). Under section 93 of the
Regulatory Powers Act, if an act or thing is required under a civil penalty provision to
be done within a particular period or before a particular time, then the obligation to do
that act or thing continues until the act or thing is done (even if the period has expired or
the time has passed), and the person commits a separate contravention of that provision
in respect of each day during which the contravention occurs. Subclause 121(8) would
provide that the maximum civil penalty for each day that a contravention of the
requirement in subclause 121(7) continues is 5% of the maximum civil penalty that can
be imposed in respect of the contravention. This means that an individual may be liable
to a civil penalty of 10 penalty units per day that they are contravening the requirement
in subclause 121(7). This is considered appropriate, given the importance of compliance
audits in maintaining the integrity of the emerging market and ensuring that biodiversity
protection and enhancement is not undermined by non-compliance.
750. Subclauses 121(9) to (12) would deal with the reimbursement of some of the costs
incurred by a person in complying with a notice given under subclause 121(2) that
requires the person to arrange a compliance audit.
751. Under clause 121(9), the Regulator would be able, on behalf of the Commonwealth, to
reimburse the person for reasonable costs incurred by the person in relation to the
carrying out of the audit if the Regulator considers it appropriate to do so. In deciding
whether to reimburse such costs, the Regulator would be required to have regard to the
audit report prepared by an audit team leader (including whether there is evidence of
non-compliance by the person), whether the person would suffer financial hardship if
the person were not reimbursed and any other matters the Regulator considers relevant
(subclause 121(12)).
752. However, the Regulator would only be able to reimburse the cost of the audit if the
person requests the Regulator to do so. A request to reimburse the reasonable costs
incurred by the person in relation to the carrying out of the audit under clause 121
would need to be in writing, in a form approved (in writing) by the Regulator and would
need to be accompanied by any information or documents required by the rules
(subclause 121(10)). The approved form would be able to require verification of
statements by statutory declaration (subclause 121(11)).
753. A decision whether to reimburse such costs under subclause 121(9) would be a
reviewable decision. The note following subclause 121(9) directs the reader to Part 20
of the Bill, which deals with reviewable decisions.
Clause 122 - Other audits
754. Clause 122 would provide for other audits. Similar to compliance audits under clause
121, an 'other audit' would also be an audit of a person's compliance with the Bill
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(including the rules or another legislative instrument made under the Bill) where the
person is, or has been, the project proponent for a registered biodiversity project.
755. However, there would be two main differences between compliance audits under clause
121 and other audits under clause 122.
756. The first difference is who would be responsible for appointing the auditor and
arranging for the audit to be carried out. While a compliance audit under clause 121
would put that responsibility (and the costs associated with it) on the person being
audited, an 'other audit' under clause 122 would be arranged (including the appointment
of a registered greenhouse and energy auditor to carry out the audit) and paid for by the
Regulator.
• Under subclause 122(2)), the Regulator would be required to give written notice
to the person of a decision to appoint an audit team leader. The notice would be
required to specify the audit team leader, the period within which the audit is
undertaken and the type of audit to be carried out. The notice would need to be
given to the person at a reasonable time before the audit is undertaken.
757. The note following subclause 122(2) would refer the reader to section 75 of the NGER
Act, which deals with the conduct of an audit by a registered greenhouse and energy
auditor.
758. The second difference is that, unlike compliance audits under clause 121, there would
be no requirement that the Regulator have reasonable grounds to suspect that the person
has contravened, is contravening or is proposing to contravene, the Bill (including the
rules or another legislative instrument made under the Bill) before an 'other audit' under
clause 122 could be arranged.
759. Instead, the Regulator would be able to require an 'other audit' under clause 122 of its
own volition, and the reasons may not reflect poorly on the chosen proponents.
Examples of reasons why the Regulator may require other audits include:
• the proponent has multiple projects, and so from a risk perspective, it may make
sense for the Regulator to take a look at a sample of that proponent's projects
from an audit perspective;
• the methodology determination that covers the project is complex and is being
considered for revision - in these circumstances, it may be useful for the
Regulator to get a better understanding on the extent to which proponents comply
with the methodology determination.
760. Subclause 122(3) would require a person to provide the audit team leader, and any other
persons assisting the audit team leader, with all reasonable facilities and assistance
necessary for the effective exercise of the audit team leader's duties under the Bill.
Failure to do so would be a breach of a civil penalty provision. The maximum penalty
for an individual would be 60 penalty units. A body corporate would be liable for five
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times this amount as a maximum penalty (see subsection 82(5) of the Regulatory
Powers Act).
761. Subclauses 122(4) and (5) would clarify the scope of the civil penalty provision in
subclause 122(3):
• subclause 122(4) would clarify that providing assistance that is reasonably
necessary includes complying with any request under clause 123 of the Bill that
relates to the audit. Clause 123 would allow an audit team leader or a person
assisting an audit team leader to, in certain circumstances, request a person to
provide any documents or information that is relevant to the audit;
• subclause 122(5) would clarify that the civil penalty provision in subclause 122(3)
would not require a person to allow an audit team leader or a person assisting an
audit team leader to enter premises, take samples of anything on premises or
inspect anything on premises.
i. This is an important distinction - audits are intended to be about
monitoring compliance with the Bill through checking documentation and
information; they are not intended to involve coercive powers. If the
Regulator considered it necessary to enter premises of a person, or to take
samples or inspect things on that premises, the Regulator would need to
exercise the monitoring and enforcement powers in Part 18 of the Bill and
to comply with the limitations of those powers (including the requirement
to obtain consent or a warrant to enter premises).
Clause 123 - Information-gathering of audit team leaders and persons assisting audit
team leaders
762. Subclause 123(1) would permit an audit team leader, or a person assisting an audit team
leader, for the purposes of carrying out an audit under clauses 121 and 122, to request a
person to provide information or produce documents. An audit team leader or person
assisting an audit team leader would only be able to require a person to provide
information or produce documents if the audit team leader or person assisting an audit
team leader reasonably believes the person has information or documents that are
relevant to the audit.
763. The requirement in clause 123 is not intended to override the common law privilege
against self-incrimination or the common law penalty privilege. The privilege against
self-incrimination would prevent the use of potentially self-incriminating information,
or any other information, document or thing obtained as a direct or indirect consequence
of giving the potentially self-incriminating information, in all criminal proceedings. In
contrast, penalty privilege is the privilege against self-exposure to a civil or
administrative penalty. It is a common law privilege that applies in the context of
judicial proceedings and may be claimed by an individual to resist compulsion in the
course of such proceedings.
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764. This means that an individual would not be required to comply with a request given
under clause 123 if the information or document requested would tend to incriminate
that person. However, the common laws privileges against self-incrimination or self-
exposure do not apply to a body corporate. As such, a body corporate would be required
to comply with a request given under clause 123 to produce information or documents,
even if that information or those documents would tend to incriminate the body
corporate.
765. Subclause 123(2) would clarify that an audit team leader or a person assisting an audit
team leader would be able to make copies of, or take extracts from, a document
produced under subclause 123(1).
Division 3 - Audit information
Subdivision A - Information
Clause 124 - Meaning of audit information
766. Clause 124 would define the term audit information, for the purposes of the Bill. This
term would cover information that:
• was obtained by a person in the person's capacity as an audit team leader or a
person assisting an audit team leader; or
• was obtained in the course of, or for the purposes of, carrying out a biodiversity
audit or preparing a biodiversity report.
767. This term would be relevant to Subdivision C of Division 3 of Part 11 of the Bill,
concerning authorised uses and disclosures of audit information.
768. It is not expected that audit information would generally include personal information
within the meaning of the Privacy Act. However, should that be the case, the
circumstances set out in Subdivision C of Division 3 of Part 11 of the Bill (clauses 127
to 138) are intended to constitute an authorisation for the purposes of Australian Privacy
Principle 6.2 (see Schedule 1 to the Privacy Act) and other relevant laws including
common law and equitable protections for confidentiality (because the relevant clause
will authorise the use or disclosure of the information by or under an Australian law).
Clause 125 - Meaning of protected audit information
769. Clause 125 would define the term protected audit information. This information would
cover audit information that is likely to cause certain harms if disclosed without
authorisation.
770. This term is relevant to the proposed secrecy provision in clause 126.
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Subdivision B - Secrecy
Clause 126 - Secrecy - protected audit information
771. Clause 126 provides a civil penalty provision pertaining to the unauthorised use or
disclosure of protected audit information.
772. As set out above, protected audit information would be defined in clause 125 of the Bill
and would be a subset of audit information where the unauthorised use or disclosure of
the information could reasonably be expected to lead to certain damaging consequences
to Australia. As such, it is considered appropriate that the use or disclosure of protected
audit information be strictly regulated.
773. Subclause 126(1) would set out a general prohibition on the use or disclosure of
protected audit information by a person who is, or has been, an audit team leader or a
person assisting an audit team leader, who obtained the protected audit information. The
protected audit information would need to have been obtained in his or her capacity as
an audit team leader or a person assisting an audit team leader (see definition of audit
information in clause 124).
774. A person would be liable to a civil penalty if they do not comply with the prohibition in
subclause 126(1). The maximum penalty for an individual would be 120 penalty units.
A body corporate would be liable for five times this amount as a maximum penalty (see
subsection 82(5) of the Regulatory Powers Act).
775. This maximum civil penalty is intended to be proportionate to the harm that is likely to
result should an audit team leader or a person assisting an audit team leader make an
authorised use or disclosure of protected audit information. If a person's information
(which may be personal information) is misused, this could lead to harm to the person in
question as well as having the potential to undermine the integrity of the scheme. It
would also provide the courts the necessary scope to apply penalties that appropriately
reflect the circumstances of any non-compliance.
776. Subclause 126(2) would provide that the prohibition in subclause 126(1) does not apply
if the use or disclosure is authorised by a provision of this Part of the Bill, or authorised
or required by a law of the Commonwealth or a prescribed law of a State or Territory.
777. The note to this subclause would explain that the defendant bears an evidential burden
to show that the use or disclosure of information was authorised. The reversal of the
burden of proof is justified in this instance, as the matter to be proved (that is, that the
use of disclosure of protected audit information was authorised or required by a
Commonwealth law or a prescribed State or Territory law) is a matter that would be
peculiarly in the knowledge of the defendant. Further, there would be a number of
authorised uses and disclosures set out in Subdivision C of Division 3 of Part 11
(clauses 127 to 138) that would apply to an audit team leader or a person assisting an
audit team leader. In the event of civil proceedings, it would be significantly more
difficult and costly to disprove all possible circumstances than it would be for a
defendant to establish the existence of one potential circumstance. Consequently, in
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order to effectively protect information under clause 126, it is reasonable, necessary and
proportionate to reverse the burden of proof and limit the right to the presumption of
innocence.
778. The authorised uses and disclosures in the Bill would be set out in new clauses 127 to
138 (see below). The authorised uses and disclosures in these clauses are reasonable,
necessary and proportionate, because they are tailored to the circumstances of an audit
team leader or person assisting an audit team leader, are generally directed at the
performance of functions and powers under legislation (including the Act), the
enforcement of Australian laws, or are matters of public interest with a high threshold
that must be met in order to rely on them (such as being necessary to prevent or lessen a
serious threat to human health or the environment).
Subdivision C - Disclosure or use of audit information
Clause 127 - Disclosure or use for the purposes of carrying out biodiversity audit or
preparing biodiversity audit report etc.
779. Clause 127 would authorise an audit team leader or a person assisting an audit team
leader to disclose or use audit information for any of the following purposes:
• the purposes of carrying out a biodiversity audit;
• the purposes of preparing a biodiversity audit report;
• where the information relates to a biodiversity project that is, or is to be, the
subject of an application under clause 11 (application to approve the registration
of the biodiversity project) - the purposes of giving a biodiversity audit report to
an eligible person who is proposed to be a project proponent for the project;
• where the information relates to a registered biodiversity project - the purposes of
giving a biodiversity audit report to the project proponent for the project.
780. This authorisation is appropriate as it would ensure that an audit team leader or a person
assisting an audit team leader would be able to perform their functions and exercise
their powers under the Bill without breaching the secrecy provision in clause 126.
Clause 128 - Disclosure to the Regulator
781. Clause 128 would authorise an audit team leader or a person assisting an audit team
leader to disclose audit information to the Regulator if the disclosure is for the purpose
of the Bill (or a legislative instrument made under the Bill), and the audit team leader or
person assisting the audit team leader is satisfied the information is likely to assist the
Regulator in performing functions or exercising powers under the Bill (or a legislative
instrument made under the Bill).
782. This authorisation is appropriate as it recognises the Regulator's role in administering
the scheme created by the Bill.
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Clause 129 - Disclosure to Minister etc.
783. Clause 129 would authorise an audit team leader or a person assisting an audit team
leader to disclose audit information to the Minister.
784. This authorisation is appropriate as it recognises the Minister's responsibility in
administering the legislation.
Clause 130 - Disclosure to the Secretary etc.
785. Clause 130 would authorise an audit team leader or a person assisting an audit team
leader to disclose audit information to the Secretary, or an officer of the Department
who is authorised by the Secretary in writing, provided the disclosure is for the purpose
of the Bill (or a legislative instrument made under the Bill) and the audit team leader or
person assisting the audit team leader is satisfied the disclosure is likely to assist in the
performance of functions, or the exercise of powers under the Bill (or a legislative
instrument made under the Bill).
786. Subclause 130(2) would clarify that an authorisation by the Secretary may be directed at
a specified officer or a specified office or position (and thus cover any person who
holds, or occupies or performs the duties of, that office or position).
787. This authorisation is appropriate as it recognises that the Secretary and Department have
a constitutional role in advising the Minister in the performance of the Minister's
functions and powers under the Bill.
Clause 131 - Disclosure to reduce serious risk to life or health of individual
788. Clause 131 would authorise the use or disclosure of audit information by an audit team
leader or a person assisting an audit team leader if he or she reasonably believes that the
use or disclosure is necessary to prevent or lessen a serious risk to the life or health of
an individual, and the disclosure is for the purpose of preventing or lessening that risk.
789. This authorisation is appropriate because it involves a matter of public interest with a
high bar to satisfy (the risk must be serious and there must be a reasonable belief the use
or disclosure is necessary to prevent or lessen the risk) and is likely to only be
applicable in exceptional circumstances.
Clause 132 - Disclosure to reduce serious risk to the environment
790. Clause 132 would authorise the use or disclosure of audit information by an audit team
leader or a person assisting an audit team leader if he or she reasonably believes that the
use or disclosure is necessary to prevent or lessen a serious risk to the environment, and
the disclosure is for the purpose of preventing or lessening that risk.
791. This authorisation is appropriate because it involves a matter of public interest with a
high bar to satisfy (the risk must be serious and there must be a reasonable belief the use
or disclosure is necessary to prevent or lessen the risk) and is likely to only be
applicable in exceptional circumstances.
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Clause 133 - Disclosure to a court, tribunal etc
792. Clause 133 would authorise the disclosure of audit information by an audit team leader
or a person assisting an audit team leader for the purposes of court proceedings, or
proceedings of a tribunal, authority or person that has the power to require the
answering of questions or the production of documents. Clause 133 would also
authorise the disclosure of relevant information by an entrusted person in accordance
with a court order, or an order of such a tribunal, authority or person.
793. This authorisation is not intended to have the effect of requiring an audit team leader or
a person assisting an audit team leader to disclose audit information to a court, tribunal,
authority or person. Rather, its intent is to ensure that persons who are required or
permitted to provide such information to a court, or to a tribunal, authority or person
with the power to require or request the information, would not be committing an
offence or the contravention of a civil penalty provision if they do so.
Clause 134 - Disclosure of publicly available information
794. Clause 134 would authorise the disclosure of audit information by an audit team leader
or a person assisting an audit team leader if the information has already lawfully been
made public.
795. This exception recognises that there is no justifiable reason to prevent the disclosure of
information that is publicly available and therefore already accessible.
Clause 135 - Disclosure with consent
796. Clause 135 would authorise the disclosure of audit information by an audit team leader
or a person assisting an audit team leader if the person to whose affairs the information
relates has consented to the use or disclosure, provided the use or disclosure is in
accordance with the consent provided.
797. This exception recognises that there is no justifiable reason to prevent the use or
disclosure of information where the person concerned consents to the use or disclosure.
Clause 136 - Disclosure to person to whom audit information relates
798. Clause 136 would authorise the disclosure of audit information by an audit team leader
or a person assisting an audit team leader to the person to whom the information relates.
799. This exception recognises that the interests of the person to whom the protected
information relates will not be adversely affected by disclosure of the information to
him or herself.
Clause 137 - Disclosure to person who provided audit information
800. Clause 137 would authorise the disclosure of audit information by an audit team leader
or a person assisting an audit team leader to the person who provided the information.
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801. This exception recognises that there is no justifiable reason to prevent the disclosure of
information to the person from whom the information was obtained, as that person will
have already seen the information.
Clause 138 - Disclosure of statistics
802. Clause 138 would authorise the use or disclosure by an audit team leader or a person
assisting an audit team leader of statistics derived from audit information if those
statistics would not allow the identification of a person.
803. This authorisation recognises that the disclosure of statistics that contain no identifying
information are unlikely to cause harm to any person.
PART 12 - DEPOSIT OF BIODIVERSITY CERTIFICATES WITH THE
REGULATOR
GENERAL OUTLINE
804. Part 12 of the Bill would provide for the holder of a biodiversity certificate to apply to
deposit the certificate with the Regulator. This would provide a mechanism that a
person can use to say to the market that they have committed to not on-selling the
certificate - that they are committed to the project for the life of the project.
NOTES ON INDIVIDUAL CLAUSES
Clause 139 - Simplified outline of this Part
805. Clause 139 would provide a simplified outline of Part 12 of the Bill. The outline is not
intended to be comprehensive and has been included to assist readers to understand the
substantive provisions of Part 12, rather than to replace these provisions. It is intended
that readers will rely on the substantive clauses of Part 12.
Clause 140 - Application to approve the deposit of a biodiversity certificate with the
Regulator
806. Clause 140 would allow the holder of a biodiversity certificate to apply to the Regulator
for approval to deposit the certificate with the Regulator.
807. A biodiversity certificate deposited with the Regulator would remain the legal property
of the holder of the certificate (ie the person depositing it) and that person would retain
all liabilities associated with the certificate. In addition, the project proponent for the
registered biodiversity project (who may or may not be the same person as the owner of
the biodiversity certificate) would remain responsible for the registered biodiversity
project for the purposes of the Bill (including reporting requirements, project
monitoring requirements, and compliance with the methodology determination that
covers the project).
808. However, the owner of the certificate would no longer be able to transfer the certificate
to another person or otherwise deal with the certificate (see clause 142). Instead, the
certificate would essentially be held in an account owned by the Regulator until the end
of the permanence period for the registered biodiversity project to which the certificate
relates (or until the certificate is relinquished or cancelled under the Bill). The Regulator
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would not gain any rights to the certificate for the period it is deposited with the
Regulator.
809. The purpose of allowing biodiversity certificates to be deposited with the Regulator is to
provide a mechanism that a person can use to say to the market that they have
committed to not on-selling the certificate - that they are committed to the project for
the life of the project. This may also be a mechanism that could potentially be used to
satisfy applicable environmental offset requirements in other legislation (depending on
the requirements of that legislation) by showing that the relevant biodiversity will be
protected for the life of the project (generally 25 or 100 years).
810. Subclauses 140(2) and (3) would have the combined effect that an application to deposit
a biodiversity certificate with the Regulator would be required to:
• be made in a form approved in writing by the Regulator and contain any
information required by the approved form;
• be accompanied by any documents required by the rules;
• be accompanied by the fee (if any) specified in the rules.
• specify the biodiversity certificate and the holder's Register account number in
which there is an entry for the certificate.
811. Subclause 140(4) would clarify that any application fee specified in the rules must not
be such as to amount to taxation.
Clause 141 - Approval of deposit of a biodiversity certificate with the Regulator
812. Clause 141 would require the Regulator, on receiving an application under clause 140,
to decide whether or not to approve the deposit of the relevant biodiversity certificate
with the Regulator (subclause 141(1) and (2)).
813. The Regulator would be required to approve the deposit of the relevant certificate with
the Regulator unless the Regulator is satisfied that:
• it would be inappropriate to do so, or
• a biodiversity certificate for the registered biodiversity project has previously been
relinquished under the Bill.
814. The Regulator would be required to give written notice to the applicant of a decision
whether or not to approve the deposit of the relevant biodiversity certificate with the
Regulator (subclause 141(3)).
815. A decision under subclause 141(2) to approve or refuse to approve an application to
deposit a biodiversity certificate with the Regulator would be a reviewable decision. The
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note following subclause 141(2) directs the reader to Part 20 of the Bill, which deals
with reviewable decisions.
Clause 142 - Deposit of a biodiversity certificate with the Regulator
816. Clause 142 would set out the consequences of depositing a biodiversity certificate with
the Regulator.
817. Paragraph 142(1)(a) and (b) would provide that if the Regulator approves the deposit of
a biodiversity certificate with the Regulator, the Regulator would be required to transfer
the certificate to a Commonwealth Register account. The certificate would then not be
able to be transferred out of that Commonwealth Register account to another Register
account.
818. Paragraph 142(1)(c) and (d) would have the combined effect that when an entry for the
certificate is in the Commonwealth Register account:
• the certificate would be taken to be deposited with the Regulator for the purposes
of the Bill;
• the certificate would remain in force;
• the person who applied for approval to deposit the certificate with the Regulator
would be recorded in the Register as the holder of the certificate;
• the certificate would not be able to be able to be transmitted or otherwise dealt
with.
819. Paragraph 142(1)(e) would clarify that the Regulator would be required to remove the
entry for the certificate from the Commonwealth Register account when the Regulator is
required to do so under clauses 77 or 77A (cancellation of the biodiversity certificate at
the end of the permanence period for the project, or when the project's registration is
cancelled) or clause 152 (relinquishment of the certificate). These are the only
circumstances in which the Regulator would be able to remove the deposited
biodiversity certificate from the Commonwealth Register account.
820. Subclause 142(2) would require the Register to record each transfer to a Commonwealth
Register account of a biodiversity certificate that has been deposited with the Regulator.
PART 13 - RELINQUISHMENT REQUIREMENTS
GENERAL OUTLINE
821. Part 13 of the Bill would make provision for the relinquishment of biodiversity
certificates in certain circumstances, namely where certificates were issued as a result of
false or misleading information, where there has been a significant reversal of a
biodiversity outcome or in circumstances prescribed by the rules.
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822. It is expected that relinquishment would ordinarily be used as a last resort, where other
compliance mechanisms are not, or are no longer, available or appropriate.
NOTES ON INDIVIDUAL CLAUSES
Division 1 - Introduction
Clause 143 - Simplified outline of this Part
823. Clause 143 would provide a simplified outline of Part 13 of the Bill. The outline is not
intended to be comprehensive and has been included to assist readers to understand the
substantive provisions of Part 13, rather than to replace these provisions. It is intended
that readers will rely on the substantive clauses of Part 13.
Division 2 - Relinquishment notices
Clause 144 - Relinquishment notice - false or misleading information
824. Clause 144 would provide for the Regulator to give a relinquishment notice to a person
in relation to a biodiversity certificate that was issued to the person on the basis of false
or misleading information provided to the Regulator.
825. The Regulator would only be able to give a relinquishment notice under clause 144 if all
the following criteria are satisfied:
• a biodiversity certificate has been issued to the person for the project (whether or
not the certificate is still in effect and whether or not the person still holds the
certificate); and
• information was given to the Regulator by the person in connection with the
project; and
• the information was contained in, or given in connection with, an application
made under the Bill (including the rules), contained in a biodiversity project report
or contained in a notification; and
• the information was false or misleading in a material particular; and
• the issue of the certificate was substantially attributable (whether directly or
indirectly) to the false or misleading information; and
• the permanence period for the project has not ended.
826. A decision to give a relinquishment notice under clause 144 would be a reviewable
decision. The second note following subclause 144(2) directs the reader to Part 20 of the
Bill, which deals with reviewable decisions.
Clause 146 - Relinquishment notice - reversal of biodiversity outcome other than due to
natural disturbance or conduct etc
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827. Clause 146 would provide for the Regulator to give a relinquishment notice to the
project proponent of a registered biodiversity project that relates to the biodiversity
certificate that has been issued for the project.
828. The Regulator would only be able to give a relinquishment notice under clause 146 if all
the following criteria are satisfied:
• a biodiversity certificate has been issued for the project (whether or not the
certificate is still in effect); and
• there has been a significant reversal of the biodiversity outcome to which the
project relates; and
• the reversal is not attributable to natural disturbance or conduct engaged in by a
person (other than the project proponent) that is not within the reasonable control
of the project proponent; and
• the permanence period for the project has not ended.
829. For example, the Regulator would be able to give a relinquishment notice if satisfied
that the project proponent themselves engaged in conduct that resulted in the significant
reversal of the biodiversity outcome to which the project relates, such as clearing
protected habitat.
830. Clause 148 would allow the rules to prescribe circumstances in which there has taken to
have been a reversal of biodiversity outcome to which a registered biodiversity project
relates and whether or not the reversal of the biodiversity outcome is taken to be
significant.
831. The first note following subclause 146(2) would refer the reader to Part 3 of the Bill,
which deals with multiple project proponents. In particular, clause 40 would have the
relevant effect that a relinquishment notice given to the nominated project proponent is
taken to be given to all project proponents for the project, while clause 43 would have
the effect that an obligation imposed on the project proponent for a project (including
the obligation to comply with a relinquishment notice) can be discharged by any of the
project proponents.
832. A decision to give a relinquishment notice under clause 146 would be a reviewable
decision. The second note following subclause 146(2) directs the reader to Part 20 of the
Bill, which deals with reviewable decisions.
Clause 147 - Relinquishment notice - reversal of biodiversity outcome due to natural
disturbance or conduct and no mitigation happens
833. Clause 147 would provide for the Regulator to give a relinquishment notice to the
project proponent of a registered biodiversity project that relates to the biodiversity
certificate that has been issued for the project.
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834. The Regulator would only be able to give a relinquishment notice under clause 147 if all
the following criteria are satisfied:
• a biodiversity certificate has been issued for the project (whether or not the
certificate is still in effect); and
• there has been a significant reversal of the biodiversity outcome to which the
project relates; and
• the reversal is attributable to natural disturbance or conduct engaged in by a
person (other than the project proponent) that is not within the reasonable control
of the project proponent; and
• the Regulator is not satisfied that the project proponent has, within a reasonable
period, taken reasonable steps to mitigate the effect of the natural disturbance or
conduct (as the case may be); and
• the permanence period for the project has not ended.
835. For example, the Regulator would be able to give a relinquishment notice if satisfied
that the project proponent has not taken reasonable steps to mitigate the effects of a fire
or flood that resulted in a significant reversal of the biodiversity outcome to which the
project relates.
836. Clause 148 would allow the rules to prescribe circumstances in which there has taken to
have been a reversal of biodiversity outcome to which a registered biodiversity project
relates and whether or not the reversal of the biodiversity outcome is taken to be
significant.
837. The first note following subclause 147(2) would refer the reader to Part 3 of the Bill,
which deals with multiple project proponents. In particular, clause 40 would have the
relevant effect that a relinquishment notice given to the nominated project proponent is
taken to be given to all project proponents for the project, while clause 43 would have
the effect that an obligation imposed on the project proponent for a project (including
the obligation to comply with a relinquishment notice) can be discharged by any of the
project proponents.
838. A decision to give a relinquishment notice under clause 147 would be a reviewable
decision. The second note following subclause 147(2) directs the reader to Part 20 of the
Bill, which deals with reviewable decisions.
Clause 147A - Relinquishment notice--circumstances prescribed by the rules
839. Clause 147A would provide for the Regulator to give a relinquishment notice to the
project proponent of a registered biodiversity project that relates to the biodiversity
certificate that has been issued for the project.
840. The Regulator would only be able to give a relinquishment notice under clause 147A if:
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• a biodiversity certificate has been issued for the project (whether or not the
certificate is still in effect); and
• circumstances prescribed by the rules exist in relation to the project.
841. It would be appropriate for rules to prescribe these circumstances to allow the necessary
detail to be included and to allow circumstances to be tailored to different kinds of
projects and biodiversity, as appropriate. As each biodiversity project would apply to
different activities in a different region or ecosystem, relinquishment requirements may
need to reflect their distinctiveness and uniqueness. The rules would be subject to
ordinary Parliamentary scrutiny processes, including disallowance and sunsetting.
842. The first note following subclause 147A(2) would refer the reader to Part 3 of the Bill,
which deals with multiple project proponents. In particular, clause 40 would have the
relevant effect that a relinquishment notice given to the nominated project proponent is
taken to be given to all project proponents for the project, while clause 43 would have
the effect that an obligation imposed on the project proponent for a project (including
the obligation to comply with a relinquishment notice) can be discharged by any of the
project proponents.
843. A decision to give a relinquishment notice under clause 147A would be a reviewable
decision. The second note following subclause 147A(2) directs the reader to Part 20 of
the Bill, which deals with reviewable decisions.
Clause 148 - Significant reversals in biodiversity outcomes - relinquishment
requirements
844. Under clause 148, the rules would be able to prescribe circumstances in which there has
taken to have been a reversal of biodiversity outcome to which a registered biodiversity
project relates and whether or not the reversal of the biodiversity outcome is taken to be
significant.
845. Rules made prescribing these circumstances would be relevant to clauses 146 and 147
of the Bill. Clauses 146 and 147 would allow the Regulator, in certain circumstances
where there has been a significant reversal of the biodiversity outcome to which a
project relates, to give a relinquishment notice to the project proponent in relation to the
biodiversity certificate for the project.
846. Subclause 148(2) would clarify that clause 148 would not limit clause 111, which would
provide for significant reversals in biodiversity outcomes for the purposes of
notification requirements (which may be different).
847. It would be appropriate for rules to prescribe these circumstances to allow the necessary
detail to be included and to allow circumstances to be tailored to different kinds of
projects and biodiversity, as appropriate. As each biodiversity project would apply to
different activities in a different region or ecosystem, relinquishment requirements may
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need to reflect their distinctiveness and uniqueness. The rules would be subject to
ordinary Parliamentary scrutiny processes, including disallowance and sunsetting.
Clause 149 - Form and content of relinquishment notice
848. Clause 149 would require a relinquishment notice to be in writing and to include the
information prescribed by the rules.
Division 3 - Complying with a relinquishment notice
Clause 150 - Requirement for compliance with relinquishment notice
849. Clause 150 would set out the timeframes for complying with a relinquishment notice
and the consequences for not doing so.
850. Subclause 150(1) would set a general rule that a relinquishment notice must be
complied with within 6 months of the notice being given to a person. Clause 151 would
deal with how a person would be able to comply with a relinquishment notice.
851. Subclause 150(2) would allow the Regulator to extend the timeframe for compliance for
an additional 6 months in certain circumstances. These circumstances would be that
either:
• not doing so would lead to significant hardship for the notice recipient; or
• the notice recipient cannot relinquish the original biodiversity certificate, and
there are no other certificates that can be used that meet the relinquishment
equivalence requirements in relation to the original biodiversity certificate.
i. For instance, if the notice recipient has since sold the original biodiversity
certificate, they would not be able to comply with the relinquishment
notice by relinquishing that certificate. In these circumstances, the notice
recipient would likely need additional time to either negotiate to buy back
the original certificate, or purchase one or more other certificates that are
able to be relinquished in its place.
852. A decision whether to extend the timeframe in which a person has to comply with a
relinquishment notice would be a reviewable decision. The note following subclause
150(2) directs the reader to Part 20 of the Bill, which deals with reviewable decisions.
853. Subclause 150(3) would make it clear that the timeframe to comply with a
relinquishment notice can only be extended once per notice. This means that if the
notice recipient is still unable to comply with the notice at the end of the additional 6-
month period, they will have contravened the civil penalty provision in subclause 150(5)
(see below).
854. Subclause 150(4) would allow the rules to provide for and in relation to a person
applying for the Regulator to grant an extension under subclause 150(2) and the
Regulator considering, and making a decision on, such an application. For instance, the
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rules may set out requirements for application forms, information or documents required
to accompany an application or the timeframe in which an application must be made. It
is appropriate for these requirements to be set out in the rules, as it may be appropriate
to set different requirements in relation to different projects or projects that cover
different kinds of biodiversity. The rules would be subject to ordinary Parliamentary
scrutiny processes, including disallowance and sunsetting.
855. Subclauses 150(5) and (6) would have the combined effect that a person who fails to
comply with a relinquishment notice within the timeframe required by clause 150
(including any extension given) would contravene a civil penalty provision. The
maximum penalty for a person (whether individual or body corporate) would be the
greater of 2000 penalty units and, if the court can determine the market value of the
biodiversity certificate that was the subject of the relinquishment notice - twice that
market value (subclause 150(7)).
856. Substantial penalties are required to provide an adequate deterrent against non-
compliance with relinquishment requirements. There are significant gains that could be
made from contravening requirements under the scheme and without such strong
deterrence the scheme could be undermined. As the scheme is a voluntary market, it is
essential that those engaged with the scheme are held to a high degree of transparency
and accountability. This maximum civil penalty amount is appropriate and proportionate
to the potential outcome of non-compliance and would provide the courts with the
necessary scope to apply penalties that appropriately reflect the circumstances of non-
compliance.
857. This penalty would also modify the operation of subsection 82(5) of the Regulatory
Powers Act, by removing the requirement in that provision that the maximum civil
penalty for a body corporate is five times higher than the maximum civil penalty for an
individual. This modification is appropriate, as the value of the certificate will not
depend on whether the notice recipient is an individual or a body corporate.
858. Subclause 150(8) would require the court, in determining the appropriate penalty, to
take the following matters into account:
• the nature and extent of any harm to the environment that has been, might be or
will be, caused by the conduct or circumstances that resulted in the relinquishment
notice being given; and
• the nature and extent of any harm to the market for biodiversity certificates that
has been, might be or will be, caused by the conduct or circumstances that resulted
in the relinquishment notice being given, or the failure to comply with the
relinquishment notice.
859. The requirements in subclause 150(8) would not limit subsection 82(6) of the
Regulatory Powers Act, which provides for additional matters that the court is required
to take into account when determining the appropriate pecuniary penalty for the
contravention of a civil penalty provision (subclause 150(9)).
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860. Subclause 150(10) would be an avoidance of doubt provision. It would clarify that a
person may be liable to pay a pecuniary penalty for contravention of the civil penalty
provision in subclause 150(5) even if:
• the person is not the holder of any biodiversity certificate or the biodiversity
certificate in relation to which the relinquishment notice was given;
• the original biodiversity certificate in relation to the relinquishment notice is no
longer in effect;
• the person is not the holder of one or more biodiversity certificates that, if
relinquished, would result in the relinquishment notice being complied with; or
• no biodiversity certificate exists that, if relinquished, would result in the
relinquishment notice being complied with.
861. Subclause 150(11) would clarify that the civil penalty provision in subclause 150(5)
would not be a continuing civil penalty provision for the purposes of section 93 of the
Regulatory Powers Act.
Clause 151 - Compliance with relinquishment requirement - relinquishing equivalent
biodiversity certificate or certificates
862. Clause 151 would set out how a relinquishment notice is complied with. Subclause
151(1) would make it clear that there are two ways to comply with a relinquishment
notice that relates to a biodiversity certificate.
863. The first way is to relinquish the biodiversity certificate to which the relinquishment
notice relates in accordance with the requirements in clause 152.
864. Alternatively, a relinquishment notice that relates to a biodiversity certificate would be
complied with by relinquishing (in accordance with the requirements in clause 152) one
or more other biodiversity certificates that meet the relinquishment equivalency
requirements for the biodiversity certificate to which the relinquishment notice relates.
865. This would allow persons, in certain circumstances, to comply with a relinquishment
notice without being required to relinquish the particular certificate to which the
relinquishment notice relates. This is appropriate, as the project proponent may have
sold the biodiversity certificate to another person who is unwilling or unable to sell it
back to them. In addition, as a biodiversity certificate that is relinquished is cancelled
(see subclause 152(3)), there may be commercial or environmental reasons why a
person may wish to retain the particular biodiversity certificate to which the
relinquishment notice relates. However, in this situation, the person would need to
ensure that one or more other equivalent certificates are relinquished instead, in order to
ensure there is no reduction in the overall biodiversity protection that is required.
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866. The note following subclause 151(1) would explain that the certificate or certificates
may be relinquished by the person who was given the certificate or by another person.
Only the holder of a biodiversity certificate would be able to relinquish that certificate
(see clause 152).
867. Subclause 151(2) would allow the rules to prescribe the circumstances in which either a
single biodiversity certificate meets the relinquishment equivalence requirements in
relation to another biodiversity certificate, or where two or more biodiversity certificates
meet the relinquishment equivalence requirements in relation to another biodiversity
certificate. It is intended that the rules defining the equivalence between biodiversity
certificates would be developed in close consultation with stakeholders and scientific
experts.
868. It is appropriate for the test for the equivalency between one biodiversity certificate and
another to be set out in the rules as the equivalency requirements will depend on how
both methodology determinations and the broader biodiversity market develops. In
addition, it may be necessary to tailor requirements and circumstances to difference
kinds of projects. However, the general principles used for developing the test are
expected to be:
• equivalent certificates should use the same or similar methodologies; and
• equivalent certificates should have similar land area, deliver a similar type of
biodiversity benefit and quantum of biodiversity gain and have a similar
permanence period.
869. The rules would be subject to ordinary Parliamentary scrutiny processes, including
disallowance and sunsetting.
Clause 152 - How biodiversity certificates are relinquished
870. Clause 152 would allow the holder of a biodiversity certificate to relinquish that
certificate.
871. A biodiversity certificate may be relinquished in order to comply with a relinquishment
notice (under clauses 144 to 147A), to satisfy a condition for a voluntary cancellation of
the registration of a biodiversity certificate (under clause 23) or for the purposes of
applying to revoke a biodiversity maintenance declaration (under clause 158). However,
each certificate may only be relinquished for one of these purposes (subclause 152(4)).
872. Clause 152 would also set out the requirements for a person to relinquish a biodiversity
certificate and the consequences of doing so.
873. Subclauses 152(1) and (2) would set out the requirements that must be satisfied for a
person to relinquish a biodiversity certificate. These requirements are:
• only the holder of a biodiversity certificate would be able to relinquish that
certificate;
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• a biodiversity certificate would only be able to be relinquished by electronic
notice transmitted to the Regulator. The term electronic notice transmitted to the
Regulator would be defined in clause 9 of the Bill to mean a notice transmitted to
the Regulator by means of an electronic communication in accordance with any
requirements set by the Regulator or the rules;
• the electronic notice would need to:
i. specify the biodiversity certificate that is being relinquished;
ii. if the certificate is being relinquished in order to comply with a
relinquishment notice - identify the relinquishment notice in relation to
which the certificate is being relinquished;
iii. if the certificate is being voluntarily relinquished in order to satisfy a
condition for a voluntary cancellation of the registration of a biodiversity
certificate - identify the registered biodiversity project in relation to which
the certificate is being relinquished;
iv. if the certificate is being voluntarily relinquished for the purposes of
applying to revoke a biodiversity maintenance declaration - identify the
biodiversity maintenance declaration in relation to which the certificate is
being relinquished;
v. if there is an entry for the certificate in the person's Register account -
specify the account number of that account;
vi. if the certificate is deposited with the Regulator (under Part 12) - include a
statement to the effect that the certificate is deposited with the Regulator;
vii. include any other information prescribed by the rules.
874. Subclause 152(3) would set out the consequences of relinquishing a biodiversity
certificate. Where a person relinquishes a biodiversity certificate under this clause, the
certificate would be cancelled. For certificates that are deposited with the Regulator (see
clauses 140 to 142 of the Bill), the Regulator would be required to remove the entry for
the relinquished certificate from the Commonwealth Register account in which there is
an entry for the certificate. For certificates that are not deposited with the Regulator, the
Regulator would be required to remove the entry for the relinquished certificate from
the person's Registry account in which there is an entry for the certificate.
875. The note following subclause 152(3) would explain that a biodiversity certificate that is
cancelled by being relinquished under clause 152 may have originally been issued for a
biodiversity project that remains a registered biodiversity project. This is because, in
certain circumstances, a biodiversity certificate may be relinquished in order to comply
with a relinquishment notice for another project (see clause 151 which deals with
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relinquishment equivalency requirements). In such a case, the cancellation of the
certificate would not affect the registration of the biodiversity project to which the
certificate relates, and the obligations of the project proponent in relation to that project
may continue to apply.
876. The Register would also be required to set out a record of each notice given under
clause 152 to relinquish a biodiversity certificate (subclause 152(5)).
PART 14 - BIODIVERSITY MAINTENANCE DECLARATIONS
GENERAL OUTLINE
877. Part 14 of the Bill would provide for biodiversity maintenance declarations, which
would be made by the Regulator where a relinquishment notice is, or is likely to be,
given in relation to a biodiversity certificate. The declaration would provide for certain
activities that are prohibited in relation to a biodiversity maintenance area.
NOTES ON INDIVIDUAL CLAUSES
Division 1 - Introduction
Clause 153 - Simplified outline of this Part
878. Clause 153 would provide a simplified outline of Part 14 of the Bill. The outline is not
intended to be comprehensive and has been included to assist readers to understand the
substantive provisions of Part 14, rather than to replace these provisions. It is intended
that readers will rely on the substantive clauses of Part 14.
Division 2 - Biodiversity maintenance declarations
Clause 154 - Biodiversity maintenance declarations
879. Clause 154 would provide the Regulator with a discretionary power to make a
declaration (known as a biodiversity maintenance declaration) in relation to a specified
area of land (known as a biodiversity maintenance area), in specified circumstances.
Broadly, these circumstances would relate to instances of non-compliance or likely non-
compliance with a relinquishment notice given, or likely to be given, by the Regulator.
880. A biodiversity maintenance declaration would need to be in writing.
881. Subclauses 154(1) and (2) would relevantly have the effect that the Regulator would be
able to make a biodiversity maintenance declaration in relation to a specified area of
land if each of the following criteria are satisfied:
• the specified area of land is, or has been, the project area, or a part of it, for a
registered biodiversity project (known as the maintained project); and
• a biodiversity certificate has been issued for the maintained project; and
• any of the following applies:
o a relinquishment notice has been given and not complied with; or
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o a relinquishment notice has been given and the Regulator is satisfied
that it is likely that the notice would not be complied with; or
o the Regulator is satisfied that a relinquishment notice is likely to be
given and the notice, if given, would not be complied with; or
o the Regulator is satisfied that it would be appropriate to give a
relinquishment notice, but the notice cannot be given because the
relevant person cannot be located, does not exist or for some other
reason.
882. A biodiversity maintenance declaration would be a key integrity measure for the Bill as
it would provide a mechanism for the Regulator to be able to take practical action to
protect biodiversity following a person failing to comply with a relinquishment notice.
This would also enhance confidence in the emerging market, because it would help to
reduce the risk that a certificate may decrease in value if circumstances relevant to the
giving of a relinquishment notice (such as a significant reversal in biodiversity outcome)
arise.
883. A biodiversity maintenance area specified in such a biodiversity maintenance
declaration may consist of a single area of land or multiple areas of land, which need not
be contiguous (subclause 154(3)).
884. Subclause 154(4) would have the effect that a biodiversity maintenance declaration
would be able to specify one or more activities that are prohibited in relation to the
biodiversity maintenance area (known as declared prohibited activities). The declaration
would be able to specify declared prohibited activities by reference to either the area or
areas on which the activity must not be carried out, the manner in which the activity
must not be carried out, the time or times at which the activity must not be carried out,
the period or periods during which the activity must not be carried out, or the person or
persons who must not carry out the activity (or any combination of these) (subclause
154(5)).
885. A decision to make a biodiversity maintenance declaration in relation to a specified area
under subclause 154(1) would be a reviewable decision. The note following subclause
154(1) directs the reader to Part 20 of the Bill, which deals with reviewable decisions.
886. Under subclause 154(6), if the Regulator makes a biodiversity maintenance declaration,
the Regulator would be required to take all reasonable steps to ensure that a notice of
the making of the declaration is given to the project proponent for the maintained
project, the holder of the biodiversity certificate for the maintained project (if different
from the project proponent), the relevant land registration official and any other person
specified in the rules. In addition, if the biodiversity maintenance area is or includes a
native title area, and there is a registered native title body corporate for that native title
area who is not the project proponent for the maintained project, the Regulator would be
required to take all reasonable steps to ensure that a notice of the making of the
declaration is given to the registered native title body corporate.
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887. The Regulator would also be required to publish the biodiversity maintenance
declaration on the Regulator's website as soon as practicable after the instrument is
made, for transparency reasons (subclause 154(7)).
888. Subclause 154(8) would clarify that a biodiversity maintenance declaration would not
be a legislative instrument for the purposes of the Legislation Act. This is appropriate,
as the prohibitions in the biodiversity maintenance declaration would apply in relation
to a specific registered biodiversity project (not to biodiversity projects generally),
require a biodiversity certificate to have been issued for the project and would result
from non-compliance with a relinquishment notice by a specific person who was given
the notice. As such, it is considered appropriate to characterise the biodiversity
maintenance declaration as an administrative decision, rather than a legislative decision.
889. This means that Parliamentary scrutiny processes (such as disallowance and sunsetting)
would not apply to a biodiversity maintenance declaration. However, as noted above,
merits review of the decision to make a declaration would be available under Part 20 of
the Bill.
Clause 155 - Civil penalty for carrying out declared prohibited activity
890. Clause 155 would create a civil penalty provision for a person who carries out a
declared prohibited activity in a biodiversity maintenance area. The activities that are
declared prohibited activities would be set out in the biodiversity maintenance
declaration for the area (see clause 154).
891. A person who carries out a prohibited activity would be liable to a civil penalty. The
maximum civil penalty that a court may order a person who is an individual to pay
where that person is liable to a civil penalty would be 2,000 penalty units. A body
corporate would be liable for five times this amount as a maximum penalty (see
subsection 82(5) of the Regulatory Powers Act).
892. This maximum civil penalty is intended to be proportionate to the harm that is likely to
result should a person fail to comply. Carrying out of a declared prohibited activity in a
biodiversity maintenance area may lead to harm to biodiversity in the area, and to
environmental damage more generally. Furthermore, as this is a voluntary scheme with
project proponents and others participating on a voluntary basis, this civil penalty
provision is aimed at protecting an emerging market that will facilitate tangible
environmental outcomes as well as a new income stream for participants. This
maximum civil penalty amount is appropriate and proportionate to the potential
outcome of non-compliance and would provide the courts with the necessary scope to
apply penalties that appropriately reflect the circumstances of non-compliance. Without
such a strong deterrence, the integrity of the scheme would be threatened.
Clause 156 - When a biodiversity maintenance declaration ceases to be in force
893. Clause 156 would have the effect that a biodiversity maintenance declaration ceases to
be in force at the earlier of the following:
• the day the declaration is revoked (under clause 157 or 158); or
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• the end of the permanence period for the biodiversity project that is the subject of
the declaration; or
• if a civil penalty order is made under Part 4 of the Regulatory Powers Act (as it
applies to the Bill) that relates to a relinquishment notice given in respect of the
biodiversity certificate issue in respect of the project - the time the penalty is paid
in full to the Commonwealth.
Clause 157 - Variation or revocation of biodiversity maintenance declaration
894. Clause 157 would provide a power for the Regulator to vary or revoke a biodiversity
maintenance declaration either unilaterally or on application by a person. The variation
or revocation would need to be in writing.
895. The Regulator would only be able to vary or revoke the declaration under clause 157 if
satisfied that it is appropriate to do so, having regard to the reasons the declaration was
made in the first place and any other matters the Regulator considers relevant (subclause
157(4)). For instance, the Regulator may, on application by the project proponent, be
satisfied that appropriate remediation activities on the relevant project area have been
undertaken so that there is no longer a significant reversal of biodiversity outcome - and
the biodiversity maintenance obligation can therefore be revoked. Alternatively, the
Regulator may consider it appropriate to unilaterally vary an existing biodiversity
maintenance declaration to declare additional activities to be prohibited, in order to
better protect the existing biodiversity on the land.
896. A decision whether to vary or revoke a biodiversity maintenance declaration under
clause 157 on application of a person would be a reviewable decision. The note
following subclause 157(3) directs the reader to Part 20 of the Bill, which deals with
reviewable decisions.
897. An application for the Regulator to vary or revoke a biodiversity maintenance
declaration under clause 157 would be required to be made in writing, in a form
approved (in writing) by the Regulator and to be accompanied by the fee (if any)
specified in the rules (subclause 157(5)). Any fee imposed in the rules made for the
purpose of subclause 157(5) must not be such as to amount to taxation (subclause
157(6)).
898. Under subclause 157(7), where the Regulator varies or revokes a biodiversity
maintenance declaration under clause 157, the Regulator would be required to take all
reasonable steps to ensure that notification of the variation or revocation is given to the
project proponent for the maintained project, the holder of the biodiversity certificate for
the maintained project (if different to the project proponent), the relevant land
registration official and any other person specified in the rules. In addition, if the
biodiversity maintenance area is or includes a native title area, and there is a registered
native title body corporate for that native title area who is not the project proponent for
the maintained project, the Regulator would be required to take all reasonable steps to
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ensure that a notice of the variation or revocation of the declaration is given to the
registered native title body corporate.
899. The Regulator would also be required to publish the instrument of variation or
revocation on the Regulator's website as soon as practicable after the instrument is
made (subclause 157(8)).
900. If the Regulator refuses to vary or revoke a biodiversity maintenance declaration on
application from a person, the Regulator would be required to give written notice of the
decision to the applicant (subclause 157(9)).
901. Subclause 159(10) would clarify that the variation or revocation of a biodiversity
maintenance declaration under clause 157 would not be a legislative instrument. This is
appropriate, as the biodiversity maintenance declaration itself would not be a legislative
instrument (see clause 154 of the Bill).
Clause 158 - Revocation of biodiversity maintenance declaration - voluntary
relinquishment of biodiversity certificate
902. Clause 158 would provide a power for the Regulator to revoke a biodiversity
maintenance declaration that has been made over a specified area in circumstances
where:
• a person has applied to the Regulator for the biodiversity maintenance declaration
to be revoked; and
• either:
i. a biodiversity certificate for the project; or
ii. one or more biodiversity certificates that meet the relinquishment
equivalence requirements for the project,
has been voluntarily relinquished under clause 152 of the Bill (subclause 158(1)).
903. The note following subclause 158(1) would refer the reader to subclause 151(2) of the
Bill, which would provide for rules to be made setting out when one or more
biodiversity certificates meets the relinquishment equivalency requirements in relation
to another biodiversity certificate.
904. Under subclause 158(2), if the requirements in subclause 158(1) are met, the Regulator
would be required to revoke the biodiversity maintenance declaration - there would be
no discretion available. The revocation would be required to be in writing.
905. This power would provide a mechanism for a subsequent landholder to secure the
removal of biodiversity maintenance declaration, for example, because the landholder
wanted to use the land for an alternative use. This could include the registration of a
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new biodiversity project. The relevant biodiversity certificate would need to have been
relinquished prior to the application for revocation being made.
906. A decision whether to revoke a biodiversity maintenance declaration under clause 158
would be a reviewable decision. The note following subclause 158(2) directs the reader
to Part 20 of the Bill, which deals with reviewable decisions.
907. A request for the Regulator to revoke a biodiversity maintenance declaration under
clause 158 would be required to be made in writing in a form approved (in writing) by
the Regulator (subclause 158(3)).
908. Under subclause 158(4), where the Regulator revokes a biodiversity maintenance
declaration under clause 158, the Regulator would be required to take all reasonable
steps to ensure that notification of the revocation is given to the project proponent for
the maintained project, the holder of the biodiversity certificate for the maintained
project (if different to the project proponent), the relevant land registration official and
any other person specified in the rules. In addition, if the biodiversity maintenance area
is or includes a native title area, and there is a registered native title body corporate for
that native title area who is not the project proponent for the maintained project, the
Regulator would be required to take all reasonable steps to ensure that a notice of the
variation or revocation of the declaration is given to the registered native title body
corporate.
909. The Regulator would also be required to publish the instrument of revocation on the
Regulator's website as soon as practicable after the instrument is made (subclause
158(5)).
910. If the Regulator decides to refuse to revoke the declaration, the Regulator would be
required to give written notice of the decision to the applicant (subclause 158(6)).
911. Subclause 158(7) would clarify that the revocation of a biodiversity maintenance
declaration under clause 158 would not be a legislative instrument. This is appropriate,
as the biodiversity maintenance declaration itself would not be a legislative instrument
(see clause 154 of the Bill).
PART 15 - REGISTERS
GENERAL OUTLINE
912. Part 15 of the Bill would provide a framework for establishing the Biodiversity Market
Register, which would be a publicly available repository of information regarding
registered biodiversity projects and biodiversity certificates. It would also establish an
online platform to facilitate trading in biodiversity certificates and for other purposes.
These measures would provide an efficient, reliable and low-cost method for tracking
biodiversity certificates held and traded by scheme participants.
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NOTES ON INDIVIDUAL CLAUSES
Division 1 - Introduction
Clause 160 - Simplified outline of this Part
913. Clause 160 would provide a simplified outline of Part 15 of the Bill. The outline is not
intended to be comprehensive and has been included to assist readers to understand the
substantive provisions of Part 15, rather than to replace these provisions. It is intended
that readers will rely on the substantive clauses of Part 15.
Division 2 - Biodiversity Market Register
Clause 161 - Biodiversity Market Register
914. Clause 161 would require the Regulator to keep a register. The register would be known
as the Biodiversity Market Register (the Register). The Register would be required to be
maintained by electronic means and would be required to be made available for
inspection on the Regulator's website. The Regulator would be required to ensure that
the Register is up to date.
915. The note after subclause 161(1) would explain that in this Bill, the Biodiversity Market
Register would be known as the Register and would direct the reader to the definition of
Register in clause 7.
916. The Register is intended to provide an efficient, reliable and low-cost method for
recording registered biodiversity projects (and appropriate details about such projects)
and for tracking biodiversity certificates held and traded by scheme participants. It is
intended to be a 'single source of truth' for projects covered by the scheme to be
established by this Bill.
Clause 162 - Entries in the Register - registered biodiversity projects and former
registered biodiversity projects
917. Clause 162 would deal with the information that must be included in the Register for
each registered biodiversity project.
918. Subclause 162(1) would require the Register to set out the following information for
each registered biodiversity project:
• a description, in accordance with the rules, of the project area for the project;
• a description of the project, including any details required by the rules;
• the project proponent (or, in the case of a project with multiple project proponents,
the project proponents) for the project;
• the methodology determination that covers the project;
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• whether the project's registration is subject to a condition under any of clauses 17
(concerning obtaining regulatory approvals) 18 (concerning eligible interest
holder consents) or 18A (concerning consent by the registered native title body
corporate to the project being carried out by the proponent in or on a native title
area);
• information about the extent to which the project area, or any part of the project
area, is also an area on which a registered project under a related scheme is being
carried out - but only if the project proponent has requested this information be
included in the Register and the Regulator is satisfied this information meets any
requirements in the rules. A related scheme would be defined in clause 7 as
covering the CFI Act or another scheme (however described) under a prescribed
Commonwealth, State or Territory law. The purpose of this requirement is to
allow market participants (and potential market participants) to see where projects
overlap, which may affect their value.
• where a project plan is required for the project - the information about the project
plan that is required by the rules;
• any other information required by the methodology determination that covers the
project or the rules;
• any other information that the Regulator considers appropriate;
• any other information required by the rules.
919. The note following subclause 162(1) would direct the reader to Part 3 of the Bill, which
deals with multiple project proponents for a project.
920. The publication of information about registered biodiversity projects on the Register
would be necessary to ensure that relevant information is accessible and available to
participants under the scheme. This would ensure that participants are able to obtain
accurate and up-to-date information about the details and status of registered
biodiversity projects, and can have confidence in conducting their business affairs,
which would support the emerging market.
921. It is not expected that the information published would generally include personal
information within the meaning of the Privacy Act (other than the name of the project
proponent, where that person is an individual rather than a body corporate). However,
should that be the case, the requirements in clause 162 are intended to constitute an
authorisation for the purposes of Australian Privacy Principle 6.2 (see Schedule 1 to the
Privacy Act) and other relevant laws including common law and equitable protections
for confidentiality (because the relevant clause will authorise the use or disclosure of the
information by or under an Australian law).
922. Subclause 162(2) would clarify that the requirements in subclause 162(1) are subject to
clauses 163 and 163A. Clause 163 would allow the project proponent for a registered
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biodiversity project to request that a description of the project area, or part of the project
area, is not included on the Register in certain circumstances. Clause 163A would allow
the project proponent for a registered biodiversity project to request that certain other
information specified in the rules is not included on the Register in certain
circumstances. This would be explained in the note following subclause 162(2).
923. Subclauses 162(3) and (4) would be relevant to the requirement that, on request by the
project proponent, the Register include information about the extent to which the project
area, or any part of the project area, is also an area on which a registered project under a
related scheme is being carried out. Subclause 162(3) would require such a request to be
made in a form approved by the Regulator and to be accompanied by any documents
required by the rules. Subclause 162(4) would permit the Regulator to remove such
information from the Register if the Regulator becomes aware it is no longer correct (for
example, if the project under the related scheme ceases to be carried out).
924. Subclause 162(5) would allow the rules to provide for the Register to set out
information for biodiversity projects that have been, but are no longer, registered
biodiversity projects (including projects that are no longer being carried on).
925. It is appropriate for the rules to set out specific details in relation to the above listed
matters relating to the Register (such as details concerning the description of the project
area, the project description, any additional matters to be published and information to
be published concerning former registered biodiversity projects). This is because it may
be necessary to tailor requirements and circumstances to different kinds of information
and different kinds of projects. In addition, as technology and international obligations
evolve, it is likely to be necessary to make regular changes and updates to the
requirements relating to the Register. The rules would be subject to ordinary
Parliamentary scrutiny processes, including disallowance and sunsetting.
Clause 163 - Requests for information about project area not to be set out in the
Register
926. Clause 163 would establish a process for a project proponent or another person to
request the Regulator to not set out a description of the project area (or part of the
project area) in the Register. Such a request would be required to be made in writing in
a form approved (in writing) by the Regulator.
927. On receiving such an application, the Regulator would be required to not set out a
description of the project area (or part of the project area) in the Register in two
circumstances.
928. The first circumstance is where the Regulator is satisfied that both of the following
criteria are met:
• setting out a description of the project area (or part of the project area) in the
Register could reasonably be expected to substantially prejudice the biodiversity
of the project area (or part of the project area) or the safety of any person; and
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• the prejudice outweighs the public interest in setting out a description of the
project area (or part of the project area) in the Register.
929. The second circumstance is where the Regulator is satisfied that all of the following
criteria are met:
• there is a local community of Aboriginal persons, or Torres Strait Islanders, who
have a connection to the project area (or part of the project area); and
• setting out the project area (or part of the project area) could reasonably be
expected to have a material adverse impact on that community; and
• the adverse impact outweighs the public interest in the setting out of the project
area (or part of the project area) in the Register.
930. This process is intended to ensure that publishing information about the project area for
a registered biodiversity project on the Register does not result in unacceptable adverse
impacts on persons, biodiversity or Indigenous cultural heritage, while maintaining
transparency for the market where possible. Any potential prejudice or adverse impact
would be required to be balanced against the public interest of including the information
in the Register.
931. In considering whether to comply with a request under subclause 163(1) or 163(3), the
Regulator would be able to consult such persons, bodies and communities as the
Regulator considers appropriate (subclause 163(5)).
932. Subclause 163(6) would require the Regulator to take all reasonable steps to make a
decision on a request made under clause 163 within 30 days after receiving the request.
933. Where a person who is not the project proponent for a project makes a request under
clause 163 in respect of that project, subclause 163(7) would require the Regulator to
provide written notice of a decision to comply with the request to the project proponent.
934. Subclause 163(8) would require the Regulator to provide written notice of a decision to
refuse a request under clause 163 to the project proponent and the applicant (where the
applicant is not the project proponent).
935. A decision under subclause 163(1) or (3) to comply with, or refuse, a request not to set
out a project area in the Register would be a reviewable decision. The notes following
subclauses 163(1) and (3) directs the reader to Part 20 of the Bill, which deals with
reviewable decisions.
Clause 163A - Requests for information about a project not to be set out in the Register
936. Clause 163A would establish a process for a project proponent or another person to
request the Regulator to not set out certain information relating to the project (other than
a description of the project area - which would be covered by clause 163) in the
Register.
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937. The kinds of information that could be the subject of a request under clause 163A would
be specified in the rules. This is appropriate, as it may be necessary to specify different
kinds of information in relation to different kinds of projects, or in relation to projects
that are at different stages. The rules would be subject to ordinary Parliamentary
scrutiny processes, including disallowance and sunsetting.
938. Such a request would be required to be made in writing in a form approved (in writing)
by the Regulator (subclause 163A(4)).
939. Under subclauses 163A(1) to (3), the circumstances in which the Regulator would be
required to not set out the requested information in the Register are the same as in
clause 163 (relating to the project area). That is:
• the Regulator would be required to not set out the requested information if
satisfied that both of the following criteria are met:
i. setting out the information in the Register could reasonably be expected to
substantially prejudice the biodiversity of the project area (or part of the
project area) or the safety of any person; and
ii. the prejudice outweighs the public interest in setting out the information in
the Register.
• the Regulator would be required to not set out the requested information in the
Register if satisfied that all of the following criteria are met:
i. there is a local community of Aboriginal persons, or Torres Strait
Islanders, who have a connection to the project area (or part of the project
area); and
ii. setting out the information in the Register could reasonably be expected to
have a material adverse impact on that community; and
iii. the adverse impact outweighs the public interest in the setting out of the
information in the Register.
940. The Regulator would also be required to be satisfied that the requested information is
not a description of the project area (or part of the project area). Requests for the
Register to not set out this information would be covered by clause 163.
941. This process is intended to ensure that publishing information about the project area for
a registered biodiversity project on the Register does not result in unacceptable adverse
impacts on persons, biodiversity or Indigenous cultural heritage, while maintaining
transparency for the market where possible. Any potential prejudice or adverse impact
would be required to be balanced against the public interest of including the information
in the Register.
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942. In considering whether to comply with a request under subclause 163A(1) or 163A(3),
the Regulator would be able to consult such persons, bodies and communities as the
Regulator considers appropriate (subclause 163A(5)).
943. Subclause 163A(6) would require the Regulator to take all reasonable steps to make a
decision on a request made under clause 163A within 30 days after receiving the
request.
944. Where a person who is not the project proponent for a project makes a request under
clause 163A in respect of that project, subclause 163A(7) would require the Regulator
to provide written notice of a decision to comply with the request to the project
proponent.
945. Subclause 163A(8) would require the Regulator to provide written notice of a decision
to refuse a request under clause 163A to the project proponent and the applicant (where
the applicant is not the project proponent).
946. A decision under subclause 163A(1) or (3) to comply with, or refuse, a request not to set
out information in the Register would be a reviewable decision. The notes following
subclauses 163A(1) and (3) directs the reader to Part 20 of the Bill, which deals with
reviewable decisions.
Clause 164 - Entries in the Register - biodiversity certificates
947. Clause 164 would set out the information that would be included in the Register in
respect of biodiversity certificates.
948. Subclause 164(1) would deal with biodiversity certificates that are in effect. For each
biodiversity certificate that is in effect, the Regulator would be required to include the
following information in the Register:
• the biodiversity project to which the certificate relates;
• the date the certificate was issued;
• the holder of the certificate;
• any additional information required by the methodology determination that covers
the project;
• any additional information required by the rules.
949. Subclause 164 would deal with biodiversity certificates that are no longer in effect. For
such certificates, the Regulator would be required to include the following information
in the Register:
• the biodiversity project to which the certificate related;
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• the date the certificate was issued;
• the date the certificate ceased to be in effect;
• any additional information required by the methodology determination that covers
the project;
• any additional information required by the rules.
950. The publication of information about biodiversity certificates on the Register would be
necessary to ensure that relevant information is accessible and available to participants
under the scheme. This would ensure that participants are able to obtain accurate and
up-to-date information about the status of biodiversity certificates, and can have
confidence in conducting their business affairs, which would support the emerging
market.
951. It is not expected that the information published would generally include personal
information within the meaning of the Privacy Act (other than the name of the holder of
the certificate, where that person is an individual rather than a body corporate).
However, should that be the case, the requirements in clause 164 are intended to
constitute an authorisation for the purposes of Australian Privacy Principle 6.2 (see
Schedule 1 to the Privacy Act) and other relevant laws including common law and
equitable protections for confidentiality (because the relevant clause will authorise the
use or disclosure of the information by or under an Australian law).
Clause 165 - Entries in the Register - accounts for holding biodiversity certificates
952. Clause 165 would allow the rules to make provision for and in relation to empowering
the Regulator to open accounts in the Register to hold biodiversity certificates.
953. This would allow the rules to set out the process for opening an account, such as
verification of information and identification procedures. It is appropriate that such
matters are set out in the rules, because this would allow requirements to be tailored for
different kinds of accounts (including accounts held by the Commonwealth) and
different kinds of information.
Clause 166 - Suspension of operation of the Register
954. Clause 166 would allow the Regulator to temporarily suspend the operation of the
Register in certain circumstances. These circumstances are:
• where the Regulator is satisfied that the suspension is required so that
maintenance can be carried out; or
• where the Regulator is satisfied that it is prudent to suspend the operation of the
Register in order to ensure the integrity of the Register, or to prevent, mitigate or
minimise abuse of the Register or criminal activity involving the Register.
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955. Subclause 166(2) would require the Regulator to publish a notice on its website
informing the public of the suspension of the Register.
956. Subclause 166(3) would clarify that, if the Regulator suspends the operation of the
Register, the Regulator may defer taking action in relation to the Register until the
suspension ends.
957. The purpose of this provision is to ensure the integrity of the Register, which is essential
to maintaining confidence in the emerging market.
Clause 167 - Rules may make provision in relation to the Register
958. Subclause 167(1) would allow the rules to make provision for and in relation to the
Register.
959. Subclause 167(2) would provide a non-exclusive list of matters that rules made for the
purposes of subclause 167(1) may cover. These are:
• matters that are to be recorded in the Register. For example, the rules would be
able to require the Register to set out whether a biodiversity certificate has been
used as a regulatory offset to comply with the requirements under other
Commonwealth, State or Territory legislation.
• the manner in which information may be communicated to or by the Regulator in
relation to the Register;
• requests to open, close, transfer or otherwise deal with accounts in the Register
(including forms for making requests, information that must accompany a request
and the consideration of a request by the Regulator);
• identification procedures that the Regulator may or must carry out in relation to a
record in the Register;
• joint accounts;
• accounts to be kept for the Commonwealth;
• unilateral closure of accounts by the Regulator;
• the holding of biodiversity certificates in accounts in the Register, and the transfer
of certificates between accounts;
• requiring the holders of accounts to notify the Regulator of specified events;
• correction or rectification of the Register;
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• verification by statutory declaration of information provided to the Regulator in
relation to the Register;
• fees for things done by the Regulator in relation to the Register.
960. It is appropriate for the rules to set out the above listed matters relating to the Register.
This is because it may be necessary to tailor requirements and circumstances to different
kinds of information and different kinds of projects. In addition, as technology and
international obligations evolve, it is likely to be necessary to make regular changes and
updates to the requirements relating to the Register. The rules would be subject to
ordinary Parliamentary scrutiny processes, including disallowance and sunsetting.
961. Subclause 167(3) would require a fee provided for in rules made for the purposes of
paragraph 167(2)(l) must not be such as to amount to taxation.
962. Subclause 167(4) would create a civil penalty provision that applies if a person fails to
comply with rules made for the purposes of paragraph 167(2)(i) (concerning
requirements of Register account holders to notify the Regulator of specified events).
The maximum civil penalty that a court may order a person who is an individual to pay
would be 200 penalty units. A body corporate would be liable for five times this amount
as a maximum penalty (see subsection 82(5) of the Regulatory Powers Act).
963. This maximum civil penalty is intended to be proportionate to the harm that is likely to
result should a person fail to comply with rules requiring Register account holders to
notify the Regulator of specified events. Failure to comply with such requirements could
compromise the accuracy of the Register which could, in turn undermine the integrity of
the scheme and potentially lead to environmental harm. It would also provide the courts
the necessary scope to apply penalties that appropriately reflect the circumstances of
any non-compliance.
Clause 168 - Use and disclosure of information obtained from the Register
964. Clause 168 would create two civil penalty provisions.
965. Subclause 168(1) would allow the rules to provide that a person must not use
information to contact or send material to another person if that information is about the
other person, and was obtained from the Register. This means that the rules would be
able to prevent a person from using information about a person that they obtained from
the Register to, for example, send abusive or advertising material to that person.
966. Subclause 168(2) would allow the rules to provide that a person must not disclose
information that was obtained from the Register and is about another person if they
know the information is likely to be used to contact or send material to the other person.
This means that the rules would be able to prevent a person from disclosing information
about a person that they obtained from the Register to, for example, an advertising
company or a person they know is likely to send abusive material to the person.
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967. The effect of subclause 168(3) would be to make failure to comply with rules made for
the purpose of subclause 168(1) or (2) a contravention of a civil penalty provision. The
maximum civil penalty that a court may order a person who is an individual to pay
would be 200 penalty units. A body corporate would be liable for five times this amount
as a maximum penalty (see subsection 82(5) of the Regulatory Powers Act).
968. This maximum civil penalty is intended to be proportionate to the harm that is likely to
result should a person fail to comply with rules prohibiting the use or disclosure of
information obtained about a person from the Register for purposes relating to
contacting or sending information to that person. If a person's information (which may
be personal information) is misused, this could lead to harm to the person in question as
well as having the potential to undermine the integrity of the scheme. It would also
provide the courts the necessary scope to apply penalties that appropriately reflect the
circumstances of any non-compliance.
969. Subclause 168(4) would provide an exception to civil penalty provisions. It would have
the effect of allowing the rules to also prescribe circumstances in which a prohibition in
rules made for the purposes of subclauses 168(1) and (2) would not apply. For example,
the rules might provide that information obtained from the Register about a person
could be used to contact that person for the purpose of facilitating trade in biodiversity
certificates. This would be a legitimate use of information obtained from the Register as
it is consistent with the scheme established by this Bill.
970. It is appropriate for the rules to set out the prohibition and the circumstances in which
the prohibition will not apply. This is because it may be necessary to tailor requirements
and circumstances to different kinds of information and projects. However, the criteria
set out at subclauses 168(1) and (2) would set appropriate parameters in the Bill that the
Minister would need to comply with when making such rules. The rules would be
subject to ordinary Parliamentary scrutiny processes, including disallowance and
sunsetting.
971. The note following subclause 168(4) would explain that the defendant bears an
evidential burden in relation to showing that they used or disclosed information
obtained from the Register about a person in circumstances covered by rules made for
the purposes of subclause 168(4). This is because section 96 of the Regulatory Powers
Act provides that if a defendant wishes to rely on an exception to a civil penalty
provision, the defendant bears an evidential burden of proof in relation to that matter.
This is appropriate on the basis that knowledge of that matter would be peculiar to that
person. In this case, it is appropriate that the defendant bear the evidential burden, as
whether the circumstances in which they used or disclosed information obtained from
the Register is a matter that is peculiarly within the knowledge of that person.
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Division 3 - Online platform
Clause 169 - Online platform
972. Subclause 169(1) would allow the rules to make provision for and in relation to
empowering the Regulator to maintain an online platform for any of the following
purposes:
• facilitating the trading of biodiversity certificates, or of other certificates, units or
credits (however described, and whether issued under a law of the
Commonwealth, a State or a Territory, or in some other way) that relate to
biodiversity certificates;
• facilitating arrangements between project proponents, or prospective project
proponents, of registered biodiversity projects and prospective purchasers of
biodiversity certificates;
• facilitating arrangements relating to biodiversity projects that are not, and are not
intended to be, registered under the Bill;
• any other purpose incidental or related to any of the above.
973. Subclause 169(2) would prevent the rules from requiring a person to use the online
platform in order to:
• be the project proponent of a registered biodiversity project under the Bill; or
• be issued with, hold or deal with a biodiversity certificate; or
• otherwise receive the benefit of any other provision of this Bill.
974. In other words, the use of any online platform established by rules made for the
purposes of subclause 169(1) would not be necessary in order to fully participate in the
scheme created by this Bill.
975. Rather, it is intended that, if an online platform is established by the rules, it would be a
voluntary place that participants could choose to use to facilitate transactions relevant
to, or under, the Bill. Initially, it is envisaged that the online platform would operate to
allow project proponents to advertise biodiversity certificates for purchase. Prospective
purchasers will be able to view available certificates on the online platform and obtain
contact details for project proponents.
976. It is intended that the actual trade of the biodiversity certificates would initially be
conducted privately between the proponent and purchaser. However, at a later stage and
if consistent with government policy, the operation of the online platform would be able
to be expanded so that trades can be conducted on the online platform itself.
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977. It would be appropriate for matters in relation to the online platform to be set out in the
rules. This would allow the Commonwealth to implement any necessary policy or
regulatory reforms to enable the effective operation of the online platform. In addition,
it would allow the rules to be tailored to different kinds of transactions or projects. It
would also allow further consultation to be undertaken in order to ensure that the
platform meets the needs of each of the different categories of participants. However,
the criteria set out at subclauses 169(1) and (2) would set appropriate parameters in the
Bill that the Minister would need to comply with when making such rules. The rules
would be subject to ordinary Parliamentary scrutiny processes, including disallowance
and sunsetting.
PART 16 - PUBLICATION OF INFORMATION
GENERAL OUTLINE
978. Part 16 would impose requirements on the Regulator and the Secretary to publish
certain information about registered biodiversity projects, biodiversity certificates and
the operation of the Bill.
NOTES ON INDIVIDUAL CLAUSES
Division 1 - Introduction
Clause 170 - Simplified outline of this Part
979. Clause 170 would provide a simplified outline of Part 16 of the Bill. The outline is not
intended to be comprehensive and has been included to assist readers to understand the
substantive provisions of Part 16, rather than to replace these provisions. It is intended
that readers will rely on the substantive clauses of Part 16.
Division 2 - Information about biodiversity certificates
Clause 171 - Information about biodiversity certificates
980. Clause 171 would set out the information that the Regulator would be required to
publish on its website in relation to biodiversity certificates.
981. Subclause 171(1) would require the Regulator, as soon as practicable after a biodiversity
certificate is issued to a person, to publish the name of the person, and such other
information relating to the certificate as is prescribed by the rules. This may include, for
example, the kind of project to which the certificate relates.
982. Subclause 171(2) would require the Regulator, as soon as practicable after a variation of
a biodiversity certificate is made, to publish the name of the holder of the certificate,
and such other information relating to the certificate or the variation as is prescribed by
the rules. This may include, for example, details of the kind of project to which the
certificate relates or the date on which the certificate was varied.
983. Subclause 171(3) would require the Regulator, as soon as practicable after a biodiversity
certificate is transferred from one account in the Register to another account in the
Register, to publish the name of the holder of each of these accounts, and such other
information relating to the certificate or transfer as is prescribed by the rules. This may
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include, for example, details of the kind of project to which the certificate relates or the
date on which the certificate was transferred.
984. The publication of this information on the Regulator's website would be necessary to
ensure that there is regular and accurate information to the market about the issuing,
varying and transfer of biodiversity certificates. This ensures that participants would be
able to obtain accurate and up-to-date information about the supply and status of
biodiversity certificates, and have confidence in conducting their business affairs.
985. It would also be appropriate for the rules to be able to make provision for information
relating to certificates to be published on the website. This would allow the
Commonwealth to implement any necessary policy or regulatory reforms to maintain
the relevance of information that is published. The rules would be subject to ordinary
Parliamentary scrutiny processes, including disallowance and sunsetting.
Clause 172 - Reports about activities of the Register
986. Clause 172 would require the Regulator to publish on its website an annual report about
the activities of the Regulator during each financial year. The report would be required
to be published as soon as practicable after the end of the financial year to which the
report relates. The report would need to deal with any matters prescribed by the rules.
987. The purpose of this requirement is to ensure that the Regulator provides regular and
accurate information to the market about the issuing of biodiversity certificates.
Clause 173 - Publication of concise description of the characteristics of biodiversity
certificates
988. Clause 173 would require the Regulator to publish on its website a statement setting out
a concise description of the characteristics of biodiversity certificates. The Regulator
would be required to keep this statement up to date.
989. The purpose of requiring the Regulator to publish information about the characteristics
of biodiversity certificates would be to keep the market informed of the content of
certificates, which would assist potential purchasers to engage in the scheme.
Division 3 - Information about biodiversity certificates purchased by the Commonwealth
Clause 174 - Information about biodiversity conservation purchasing processes
990. Clause 174 would set out the information that the Secretary may publish on the
Department's website following a biodiversity conservation purchasing process. This
information is:
• when the process was conducted;
• the total amount that the Commonwealth agreed to pay by way of purchasing
biodiversity certificates through the process (whether or not those payments have
been made);
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• such other summary information or statistics (if any) relating to the process as the
Secretary considers appropriate.
991. This power to publish information about biodiversity conservation purchasing processes
is discretionary. This is appropriate because in some circumstances (such as where the
Commonwealth only purchases a small number of certificates) it may be difficult to
publish a meaningful report that does not reveal commercially sensitive information
about the purchasing process and sellers of the certificates. It is intended that the
Secretary would consider the Commonwealth's purchasing policy when deciding
whether to publish information under this clause.
Clause 175 - Annual reports about purchases of biodiversity certificates
992. Clause 175 would authorise the Secretary to publish a report, for a financial year, on
certain matters pertaining to biodiversity certificates purchased by the Commonwealth
and biodiversity conservation contracts.
993. The matters are:
• the total number of biodiversity certificates that the Commonwealth has
purchased, or has agreed to purchase, under biodiversity conservation contracts
entered into during the financial year;
• the total amount that the Commonwealth will be liable to pay, or has paid, under
biodiversity conservation contracts, entered into during the financial year;
• the total number of biodiversity certificates that were transferred to the
Commonwealth during the financial year as a result of biodiversity conservation
contracts (including such contracts entered into before the financial year);
• the total amount that the Commonwealth paid during the financial year under
biodiversity conservation contracts (including such contracts entered into before
the financial year);
• for each biodiversity certificate transferred to the Commonwealth during the
financial year as a result of a biodiversity conservation contract (including such a
contract entered into before the financial year) - sufficient information to identify
the registered biodiversity project in relation to which the certificate was issued;
• such other summary information (if any) relating to the purchase of biodiversity
certificates by the Commonwealth under biodiversity conservation contracts as the
Secretary considers appropriate;
• such other statistics (if any) relating to the purchase of biodiversity certificates by
the Commonwealth under biodiversity conservation contracts as the Secretary
considers appropriate.
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994. Publishing such reports would assist in providing transparency in relation to biodiversity
certificates purchased by the Commonwealth and biodiversity conservation contracts.
Division 4 - Information about relinquishment requirements
Clause 176 - Information about relinquishment requirements
995. Clause 176 would set out the information the Regulator would be required to publish on
its website in the event the Regulator gives a person a relinquishment notice under Part
13.
996. Subclause 176(2) would require the Regulator to publish the name of the person and the
details of the relinquishment requirement as soon as practicable after giving the
relinquishment notice.
997. Subclause 176(3) would apply if the decision to require the person to relinquish one or
more biodiversity certificates is being reconsidered by the Regulator under clause 215
(internal review), or is the subject of an application for review by the Administrative
Appeals Tribunal (AAT). In such circumstances, the Regulator would be required to
make an appropriate annotation on the Regulator's website. In addition, when the
reconsideration or AAT review has been finalised, the Regulator would also be required
to publish an appropriate annotation on the Regulator's website.
Clause 177 - Information about relinquished certificates
998. Clause 177 would impose a requirement on the Regulator to publish certain information
on its website after receiving a notice under clause 152 that a person has decided to
relinquish one or more biodiversity certificates in order to comply with a relinquishment
notice given to them.
999. The information that would be required to be published is the name of the person and
such information in relation to the biodiversity certificate or certificates as the Regulator
thinks appropriate.
1000. The purpose of this provision is to provide transparency in relation to biodiversity
certificates that have been relinquished.
PART 17 - RECORD-KEEPING AND PROJECT MONITORING REQUIREMENTS
GENERAL OUTLINE
1001. Part 17 of the Bill would deal with record keeping and project monitoring
requirements. It would allow the rules or the applicable methodology determination to
prescribe record-keeping requirements and would create civil penalty provisions for
non-compliance with record-keeping requirements in the rules or in the methodology
determination that covers the project. It would also create a civil penalty provision for
failure to comply with project monitoring requirements that are imposed by the
methodology determination that covers the project.
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NOTES ON INDIVIDUAL CLAUSES
Division 1 - Introduction
Clause 178 - Simplified outline of this Part
1002. Clause 178 would provide a simplified outline of Part 17 of the Bill. The outline is not
intended to be comprehensive and has been included to assist readers to understand the
substantive provisions of Part 17, rather than to replace these provisions. It is intended
that readers will rely on the substantive clauses of Part 17.
Division 2 - Record-keeping requirements
Clause 179 - Record-keeping requirements - general
1003. Clause 179 would provide for record keeping requirements. Rules would be able to be
made for the purposes of subclause 179(1) requiring a person to make a record of
specified information that is relevant to the Bill, and to retain the record (or a copy of
the record) for 7 years after the record is made.
1004. It is appropriate for the details of record keeping requirements to be set out in rules, as
it may be necessary to tailor requirements and circumstances to different kinds of
projects. However, the criteria set out at subclause 179(1) (that the information must be
relevant to the Bill and that the rules could only require the person to retain the record
for 7 years) would set appropriate parameters in the Bill that the Minister would need to
comply with when making such rules. The rules would be subject to ordinary
Parliamentary scrutiny requirements, such as disallowance and sunsetting.
1005. Failure to comply with a requirement under the rules made for the purposes of
subclause 179(1) would be a contravention of a civil penalty provision (subclause
179(2)). The maximum civil penalty that a court may order a person who is an
individual to pay would be 200 penalty units. A body corporate would be liable for five
times this amount as a maximum penalty (see subsection 82(5) of the Regulatory
Powers Act).
1006. This maximum civil penalty is intended to be proportionate to the harm that
is likely to result should a person fail to comply with the record-keeping requirements. It
is necessary for sufficient records to be retained in order to facilitate the Regulator's
compliance activities, and to ensure that claimed biodiversity outcomes are accurate and
substantiated. The maximum civil penalty amount would also provide for sufficient
deterrence against any potential non-compliance with record-keeping requirements,
which would have the potential to undermine the integrity of the scheme. It would also
provide the courts the necessary scope to apply penalties that appropriately reflect the
circumstances of any non-compliance.
1007. Subclause 179(3) would clarify that clause 179 would not be limited by any other
provisions of this Bill relating to keeping records or retaining records.
Clause 180 - Record-keeping requirements - preparation of biodiversity project report
1008. Subclauses 180(1) and (2) would have the combined effect of allowing the rules to
require a person to retain a record (or a copy of a record) made of particular information
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that the person used to prepare a biodiversity project report. The rules would be able to
require the record (or copy) to be retained for 7 years after the biodiversity project
report was given to the Regulator.
1009. It is appropriate for the details of record keeping requirements (including in relation to
information used to prepare biodiversity project reports) to be set out in rules, as it may
be necessary to tailor requirements and circumstances to difference kinds of projects or
different kinds of biodiversity project reports. For example, it may be appropriate for the
record keeping requirements relating to category A biodiversity project reports to differ
from the requirements relating to category B biodiversity project reports, on the basis
that these reports are relevant to different stages of the project. However, the criteria set
out at subclauses 180(1) and (2) (that the information must have been used to prepare
the report and that the rules could only require the person to retain the record for 7
years) would set appropriate parameters in the Bill that the Minister would need to
comply with when making such rules. The rules would be subject to ordinary
Parliamentary scrutiny requirements, such as disallowance and sunsetting.
1010. Failure to comply with a requirement under the rules made for the purposes of
subclause 180(2) would be a contravention of a civil penalty provision (subclause
180(3)). The maximum civil penalty that a court may order a person who is an
individual to pay would be 200 penalty units. A body corporate would be liable for five
times this amount as a maximum penalty (see subsection 82(5) of the Regulatory
Powers Act).
1011. This maximum civil penalty is intended to be proportionate to the harm that
is likely to result should a person fail to comply with the record-keeping requirements. It
is necessary for sufficient records to be retained in order to facilitate the Regulator's
compliance activities, and to ensure that claimed biodiversity outcomes are accurate and
substantiated. The maximum civil penalty amount would also provide for sufficient
deterrence against any potential non-compliance with record-keeping requirements,
which would have the potential to undermine the integrity of the scheme. It would also
provide the courts the necessary scope to apply penalties that appropriately reflect the
circumstances of any non-compliance.
Clause 181 - Record-keeping requirements - methodology determinations
1012. Clause 181 would create a civil penalty that applies to a project proponent for a
registered biodiversity project who fails to comply with a record-keeping requirement
that applies to the person under the methodology determination that covers the project.
1013. A methodology determination would be able to impose record keeping requirements
on a project proponent for a registered biodiversity project covered by the determination
(see paragraph 45(3)(e) of the Bill). Such requirements may apply to any stage of the
project - ie before or after a biodiversity certificate is issued (or both). The purpose of
clause 181 is to ensure that there is an appropriate penalty for non-compliance with any
such requirements.
1014. Under clause 181, the maximum civil penalty that a court may order a person who is
an individual to pay would be 200 penalty units. A body corporate would be liable for
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five times this amount as a maximum penalty (see subsection 82(5) of the Regulatory
Powers Act).
1015. This maximum civil penalty is intended to be proportionate to the harm that
is likely to result should a person fail to comply with the record-keeping requirements. It
is necessary for sufficient records to be retained in order to facilitate the Regulator's
compliance activities, and to ensure that claimed biodiversity outcomes are accurate and
substantiated. The maximum civil penalty amount would also provide for sufficient
deterrence against any potential non-compliance with record-keeping requirements,
which would have the potential to undermine the integrity of the scheme. It would also
provide the courts the necessary scope to apply penalties that appropriately reflect the
circumstances of any non-compliance.
Division 3 - Project monitoring requirements
Clause 182 - Project monitoring requirements - methodology determinations
1016. Clause 182 would create a civil penalty that applies to a project proponent for a
registered biodiversity project who fails to comply with a project monitoring
requirement that applies to the person under the methodology determination that covers
the project.
1017. A methodology determination would be able to impose project monitoring
requirements on a project proponent for a registered biodiversity project covered by the
determination (see paragraph 45(3)(f) of the Bill). Such requirements may apply to any
stage of the project - ie before or after a biodiversity certificate is issued (or both). The
purpose of clause 182 is to ensure that there is an appropriate penalty for non-
compliance with any such requirements.
1018. Under clause 182, the maximum civil penalty that a court may order a person who is
an individual to pay would be 200 penalty units. A body corporate would be liable for
five times this amount as a maximum penalty (see subsection 82(5) of the Regulatory
Powers Act).
1019. This maximum civil penalty is intended to be proportionate to the harm that
is likely to result should a person fail to comply with the project monitoring
requirements. It is necessary for the ongoing monitoring of projects to be undertaken in
order to facilitate the Regulator's compliance activities, and to ensure that claimed
biodiversity outcomes are accurate and substantiated. The maximum civil penalty
amount would also provide for sufficient deterrence against any potential non-
compliance with project monitoring requirements, which would have the potential to
undermine the integrity of the scheme. It would also provide the courts the necessary
scope to apply penalties that appropriately reflect the circumstances of any non-
compliance.
PART 18 - ENFORCEMENT
GENERAL OUTLINE
1020. Part 18 would deal with enforcement-related powers. The standard provisions of Parts
2 to 7 of the Regulatory Powers Act would be triggered to provide a comprehensive
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compliance and enforcement regime. Part 18 would include a number of additional
monitoring and investigation powers, concerning the use of reasonable force on things,
the power to take, test and analyse samples, and the power to secure premises and
secure things on premises, as well as the power to publish enforceable undertakings.
Part 18 would also provide for the appointments of inspectors.
NOTES ON INDIVIDUAL CLAUSES
Division 1 - Introduction
Clause 183 - Simplified outline of this Part
1021. Clause 183 would provide a simplified outline of Part 18 of the Bill. The outline is not
intended to be comprehensive and has been included to assist readers to understand the
substantive provisions of Part 18, rather than to replace these provisions. It is intended
that readers will rely on the substantive clauses of Part 18.
Clause 184 - Appointment of inspectors
1022. Clause 184 would allow the Chair of the Regulator to, in writing, appoint a person
who is a member of the staff of the Regulator and is either an SES employee, acting
SES employee or an APS employee holding or performing the duties of an Executive
Level 1 or 2 position (or equivalent) as an inspector for the purposes of the Bill. The
Chair would also be able to appoint a member or special member of the Australian
Federal Police as an inspector for the purposes of the Bill (subclause 184(1)).
1023. The concept of an inspector is relevant to the monitoring and investigation powers in
Parts 2 and 3 of the Regulatory Powers Act, which would apply in relation to provisions
of the Bill and legislative instruments made under the Bill (see clauses 185 to 188).
1024. The note following subclause 184(1) explains that the terms APS employee, SES
employee and acting SES employee are defined in section 2B of the AI Act.
1025. Subclause 184(2) would have the effect that the Chair could only appoint a person as
an inspector for the purposes of the Bill if the Chair is satisfied that the person has the
knowledge or experience necessary to properly exercise the powers of an inspector. This
restriction on the Chair's power in subclause 184(1) would ensure that inspectors, who
carry out important and sensitive duties relating to compliance and enforcement matters,
are appropriately qualified and experienced.
1026. Subclause 184(3) would require an inspector to comply with any directions from the
Chair when exercising the powers and functions of an inspector. Subclause 184(4)
would clarify that a direction given under subclause 184(3) would not be a legislative
instrument. This is declaratory of the law and included to assist readers. It is not
intended to be an exemption for the purposes of the Legislation Act.
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Division 2 - Monitoring powers
Clause 185 - Monitoring powers
1027. Clause 185 would trigger the standard monitoring powers in Part 2 of the Regulatory
Powers Act. The notes following subclauses 185(1) and 185(2) would explain that Part
2 of the Regulatory Powers Act creates a framework for monitoring compliance with the
Act. This would include powers of entry and inspection.
1028. New subclauses 185(1) and 185(2) would have the combined effect that the
monitoring powers triggered under Part 2 of the Regulatory Powers Act would be able
to be exercised for the purposes of:
• monitoring compliance with provisions in the Bill (including the rules, another
legislative instrument made under the Bill, and relevant offence provisions of the
Crimes Act or the Criminal Code); and
• determining whether information given in compliance, or purported compliance,
with those provisions is correct.
1029. Paragraph 185(3)(a) would provide that, for the purposes of Part 2 of the Regulatory
Powers Act, there are no related provisions. Paragraphs 185(3)(b) and (c) would have
the combined effect that, for the purposes of Part 2 of the Regulatory Powers Act, an
inspector (appointed under clause 184 of the Bill) is both an authorised applicant and an
authorised person. This means that an inspector would be able to exercise the
monitoring powers set out in Part 2 of the Regulatory Powers Act.
1030. Paragraphs 185(3)(d), (e) and (f) would provide that, for the purposes of Part 2 of the
Regulatory Powers Act, an issuing officer is a magistrate, the Chair of the Regulator is
the relevant chief executive, and a Federal Court and a court of a State or Territory that
has relevant jurisdiction is a relevant court.
1031. Unlike the exercise of investigation powers, inspectors would not need to suspect on
reasonable grounds that there may be material on the premises related to an offence or
contravention of a civil penalty provision before exercising relevant monitoring powers.
However, an inspector would need to have either the consent of the occupier or a
monitoring warrant to enter premises to exercise the monitoring powers under Part 2 of
the Regulatory Powers Act (subsection 18(2) of the Regulatory Powers Act).
1032. The general monitoring powers set out in Part 2 of the Regulatory Powers Act would
also permit an inspector to, among other things:
• search premises, measure or test anything on the premises, photograph things or
make copies of documents;
• take necessary equipment onto the premises;
• ask persons on the premises questions and request the production of documents;
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• operate electronic equipment;
• secure electronic evidence for 24 hours in order to obtain expert assistance.
1033. Subclauses 185(4) to (6) would have the combined effect that the Chair of the
Regulator, as the relevant chief executive, is able to delegate the functions and powers
in Part 2 of the Regulatory Powers Act (as they apply in relation to the Bill), as well as
any incidental functions and powers in the Regulatory Powers Act, to a person who is
both a member of the staff of the Regulator and an SES employee or acting SES
employee. A person exercising powers or functions under such a delegation would be
required to comply with any directions of the relevant chief executive.
1034. The note following subclause 185(4) explains that the terms SES employee and acting
SES employee are defined in section 2B of the AI Act.
1035. Subclause 185(7) would have the effect that an inspector may be assisted by other
persons in exercising powers or performing functions or duties under Part 2 of the
Regulatory Powers Act as it applies to the Bill.
1036. It is necessary to allow other persons to assist inspectors to exercise powers or
perform functions under Part 2 of the Regulatory Powers Act (as it applies to the Bill)
because there may be circumstances where no other inspector is available to assist, or
because special skills are required for the assistance needed (for example, locksmiths).
Alternatively, for cultural reasons, it may be appropriate for indigenous rangers to assist
an inspector in relation to projects occurring on or in native title or land rights land.
Subclause 185(7) would not impose specific training requirements for a person assisting
an inspector, as the relevant expertise required would differ depending on the purpose of
the assistance. However, under paragraph 23(1)(a) of the Regulatory Powers Act, a
person exercising monitoring powers may only be assisted by another person if it is
necessary and reasonable to do so. In addition, a person assisting an inspector would be
subject to any directions given by the inspector under paragraph 23(2)(d) of the
Regulatory Powers Act and a power exercised by a person assisting an inspector would
be taken to have been exercised by the inspector in accordance with subsection 23(3) of
the Regulatory Powers Act. The inspector would have direct responsibility and
oversight of the powers exercised and functions performed under Part 2 of the
Regulatory Powers Act (as it applies to this Bill).
1037. Subclause 185(8) would extend the operation of Part 2 of the Regulatory Powers Act
(as it relates to the Bill) to every external Territory. This is necessary because the
Regulatory Powers Act does not apply to external territories of its own accord. It would
also ensure that Part 2 of the Regulatory Powers Act (as it applies to the Bill) would
operate consistently with the Bill, which applies to all external Territories (see clause 6).
Clause 186 - Modifications of Part 2 of the Regulatory Powers Act
1038. Clause 186 would provide for additional monitoring powers beyond those provided
for under Part 2 of the Regulatory Powers Act and modify the operation of some of the
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provisions in Part 2 of the Regulatory Powers Act as it applies to the Bill. These
additional powers and modifications are necessary to ensure the effective operation of
the Regulatory Powers Act, as it applies to the Bill.
1039. Consistent with clause 185, the additional monitoring powers in clause 186 would be
able to be exercised for the purposes of:
• monitoring compliance with provisions in the Bill, a legislative instrument made
under the Bill, and relevant offence provisions of the Crimes Act and the Criminal
Code; and
• determining whether information given in compliance, or purported compliance,
with those provisions is correct.
1040. Subclause 186(2) would provide for the following additional monitoring powers:
• the power to take samples of any thing on premises entered under Part 2 of the
Regulatory Powers Act;
• the power to remove, test and analyse such samples;
• the power to secure a premise entered under Part 2 of the Regulatory Powers Act;
• the power to secure things on a premises entered under Part 2 of the Regulatory
Powers Act for the purpose of sampling, testing or analysing those things;
• the power to secure a container on premises entered under Part 2 of the Regulatory
Powers Act that contains a thing if the inspector reasonably believes that it is not
reasonably practicable to secure the thing without also securing the container
(whether or not the container contains any other thing).
1041. These additional monitoring powers are appropriate because it may be necessary to
secure things and premises, and to take and test samples of things, in order to facilitate
compliance with the Bill.
1042. For example, a biodiversity project report by a project proponent may report that the
activities undertaken for a registered biodiversity project were directed at protecting a
certain species of biodiversity, consistent with the relevant methodology determination.
In such circumstances, testing and analysing a sample of relevant species may be
necessary to confirm that the requirements of the methodology determination were
being complied with. Similarly, if an inspector entered premises under Part 2 of the
Regulatory Powers Act and needed to secure a thing that was a sample of a particular
species of biodiversity, it may not be reasonably practicable to secure the thing without
also securing the container the thing is in.
1043. Subclause 186(3) would have the effect that an authorised person, or a person
assisting an authorised person, when executing a monitoring warrant, may use necessary
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and reasonable force against things. This would ensure that inspectors can take the
necessary measures to monitor compliance with the Bill and takes into consideration the
special requirements that may be needed for effective monitoring. An example of where
use of force may be necessary is opening locked cabinets to access records relating to a
registered biodiversity project, in order to ascertain whether a methodology
determination is being, or has been, complied with. This subclause would not authorise
the use of force against a person in executing a monitoring warrant.
1044. Subclauses 186(4) and (5) would modify powers in Part 2 of the Regulatory Powers
Act concerning identity cards for the purposes of their application to the Bill.
1045. Subclause 186(4) would have the effect that references to an 'identity card' in
sections 25 and 26 and subsection 35(6) of the Regulatory Powers Act, as those
provisions applies in relation to the Bill, should be taken to include a reference to
written evidence identifying the authorised person as a member or special member of
the Australian Federal Police.
1046. Subclause 186(5) would have the effect that subsection 35(1) of the Regulatory
Powers Act does not require the relevant chief executive to issue an identity card to an
authorised person who is a member or special member of the Australian Federal Police.
1047. Subclauses 186(4) and (5) are appropriate because an inspector, who is the authorised
person for the purposes of Part 2 of the Regulatory Powers Act as it applies to the Bill,
would include a member or special member of the Australian Federal Police. A member
or special member of the Australian Federal Police would ordinarily have written
evidence identifying them as such. These modifications would remove unnecessary
duplication by removing the requirement to issue such persons with additional identity
cards.
1048. As is the case for the general monitoring powers in Part 2 of the Regulatory Powers
Act, the additional monitoring powers in clause 186 would only be able to be exercised
with the consent of the occupier of the premises or under a monitoring warrant.
Division 3 - Investigation powers
Clause 187 - Investigation powers
1049. Clause 187 would trigger the standard investigation powers in Part 3 of the
Regulatory Powers Act. The note following subclause 187(1) would explain that Part 3
of the Regulatory Powers creates a framework for investigating compliance with the
Bill. This would include powers of entry and inspection.
1050. The investigation powers triggered under Part 3 of the Regulatory Powers Act would
be able to be exercised for the purposes of investigating compliance with a civil penalty
provision of the Act or a relevant offence under the Crimes Act or the Criminal Code
(subclause 187(1)).
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1051. Paragraphs 187(2)(d), (e) and (f) would provide that, for the purposes of Part 3 of the
Regulatory Powers Act, an issuing officer is a magistrate, the Secretary is the relevant
chief executive, and a Federal Court and a court of a State or Territory that has relevant
jurisdiction is a relevant court.
1052. The investigation powers triggered under Part 3 of the Regulatory Powers Act would
allow an authorised person to enter a premise to exercise investigation powers if they
suspect on reasonable grounds that there is evidential material on the premises
(subsection 48(1) of the Regulatory Powers Act). However, they can only do so with the
consent of the occupier or under an investigation warrant (subsection 48(2) of the
Regulatory Powers Act).
1053. The investigation powers set out in Part 3 of the Regulatory Powers Act would also
permit an authorised person to, among other things:
• search the premises and seize evidential material;
• inspect, test and copy evidential material;
• take necessary equipment onto the premises;
• ask persons on the premises questions and request the production of documents;
• operate electronic equipment found on the premises and secure electronic
evidence for 24 hours in order to obtain expert assistance.
1054. These investigation powers would allow non-compliance to be more easily detected
and ultimately reduced, leading to greater compliance with the Bill. This would support
better environmental outcomes and assist in ensuring compliance with Australia's
obligations under relevant international conventions.
1055. Subclauses 187(3) to (5) would have the combined effect that the Chair of the
Regulator, as the relevant chief executive, is able to delegate the functions and powers
in Part 3 of the Regulatory Powers Act (as they apply in relation to the Bill), as well as
any incidental functions and powers in the Regulatory Powers Act, to a person who is
both a member of the staff of the Regulator and an SES employee or acting SES
employee. A person exercising powers or functions under such a delegation would be
required to comply with any directions of the relevant chief executive.
1056. The note following subclause 187(3) explains that the terms SES employee and acting
SES employee are defined in section 2B of the AI Act.
1057. Subclause 187(6) would have the effect that an inspector may be assisted by other
persons in exercising powers or performing functions or duties under Part 3 of the
Regulatory Powers Act as it applies to the Bill.
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1058. It is necessary to allow other persons to assist inspectors to exercise powers or
perform functions under Part 3 of the Regulatory Powers Act (as it applies to the Bill)
because there may be circumstances where no other inspector is available to assist, or
because special skills are required for the assistance needed (for example, locksmiths).
Alternatively, for cultural reasons, it may be appropriate for indigenous rangers to assist
an inspector in relation to projects occurring on or in native title or land rights land.
Subclause 187(6) would not impose specific training requirements for a person assisting
an inspector, as the relevant expertise required would differ depending on purpose of the
assistance. However, under paragraph 53(1)(a) of the Regulatory Powers Act, a person
exercising investigation powers may only be assisted by another person if it is necessary
and reasonable to do so. In addition, a person assisting an inspector would be subject to
any directions given by the inspector under paragraph 53(2)(d) of the Regulatory
Powers Act and a power exercised by a person assisting an inspector would be taken to
have been exercised by the inspector in accordance with subsection 53(3) of the
Regulatory Powers Act. The inspector would have direct responsibility and oversight of
the powers exercised and functions performed under Part 3 of the Regulatory Powers
Act (as it applies to the Bill).
1059. Subclause 187(7) would extend the operation of Part 3 of the Regulatory Powers Act
(as it applies to the Bill) to every external Territory. This is necessary because the
Regulatory Powers Act does not apply to external territories of its own accord. It would
also ensure that Part 3 of the Regulatory Powers Act (as it applies to the Bill) would
operate consistently with the Bill, which applies to all external Territories (see clause 6).
Clause 188 - Modification of Part 3 of the Regulatory Powers Act
1060. Clause 188 would provide for additional investigation powers beyond those provided
for under Part 3 of the Regulatory Powers Act and modify the operation of some of the
provisions in Part 3 of the Regulatory Powers Act as it applies to the Bill. These
additional powers and modifications are necessary to ensure the effective operation of
the Regulatory Powers Act, as it applies to the Bill.
1061. Consistent with clause 187, the additional investigation powers in clause 188 would
be able to be exercised for the purpose of investigating compliance with a civil penalty
provision of the Bill or a relevant offence under the Crimes Act or the Criminal Code in
relation to evidential material that relates to such a provision (subclause 188(1)).
1062. Subclause 188(2) would provide for the following additional investigation powers:
• the power to take samples of any thing on premises entered under Part 3 of the
Regulatory Powers Act;
• the power to remove, test and analyse such samples;
• the power to secure a premises entered under Part 3 of the Regulatory Powers Act;
185
• the power to secure things on premises entered under Part 3 of the Regulatory
Powers Act for the purpose of sampling, testing or analysing those things;
• the power to secure a container on premises entered under Part 3 of the Regulatory
Powers Act that contains a thing if the inspector reasonably believes that it is not
reasonably practicable to secure the thing without also securing the container
(whether or not the container contains any other thing);
1063. These additional investigation powers are appropriate because it may be necessary to
secure things and premises, and to take and test samples of things, in order to facilitate
compliance with the Bill.
1064. For example, a biodiversity project report by a project proponent may report that the
activities undertaken for a registered biodiversity project were directed at protecting a
certain species of biodiversity, consistent with the relevant methodology determination.
In such circumstances, testing and analysing a sample of relevant species may be
necessary to confirm that the requirements of the methodology determination were
being complied with. Similarly, if an inspector entered premises under Part 3 of the
Regulatory Powers Act and needed to seize or secure a thing that was a sample of a
particular kind of biodiversity, it may not be reasonably practicable to seize secure the
thing without also seizing or securing the container the thing is in.
1065. Subclause 188(3) would modify the operation of subsection 50(1) of the Regulatory
Powers Act, as it applies to the Bill.
1066. Subsection 50(1) of the Regulatory Powers Act provides that the standard
investigation powers include the power to operate electronic equipment on the premises,
and the power to use a disk, tape or storage device that is on the premises and can be
used with the equipment or associated with it, provided that the authorised person
suspects on reasonable grounds that the electronic equipment, disk, tape or other storage
device is or contains evidential material. Subclause 188(3) would have the effect of
extending this power to also include the power to operate such electronic equipment,
disk, tape or storage device to find out whether the equipment, disk, tape or storage
device contains such evidential material. This modification is appropriate because it will
often not be apparent that some equipment or storage devices contain evidential material
until they are operated, due to their nature.
1067. Subclause 188(4) would have the effect that an authorised person, or a person
assisting an authorised person, when executing an investigation warrant, may use
necessary and reasonable force against things. This would ensure that inspectors can
take the necessary measures to investigate compliance with the Act and takes into
consideration the special requirements that may be needed for effective investigation.
An example of where use of force may be necessary is opening locked cabinets to
access records relating to a registered biodiversity project, in order to ascertain whether
a methodology determination is being, or has been, complied with. This subclause
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would not authorise the use of force against a person in executing an investigation
warrant.
1068. Subclause 188(5) would have the effect that references to an 'identity card' in
sections 55 and 56 and subsection 76(6) of the Regulatory Powers Act should be taken
to include a reference to written evidence identifying the authorised person as a member
or special member of the Australian Federal Police.
1069. Subclause 188(6) would have the effect that subsection 76(1) of the Regulatory
Powers Act does not require the relevant chief executive to issue an identity card to an
authorised person who is a member or special member of the Australian Federal Police.
1070. Subclauses 188(5) and (6) are appropriate because an inspector, who is the authorised
person for the purposes of Part 3 of the Regulatory Powers Act (as it applies to the Bill),
would include a member or special member of the Australian Federal Police. A member
or special member of the Australian Federal Police would ordinarily have written
evidence identifying them as such. These modifications would remove unnecessary
duplication by removing the requirement to issue such persons with additional identity
cards.
Division 4 - Civil penalty provisions
Clause 189 - Civil penalty provisions
1071. Clause 189 would trigger the standard provisions of Part 4 of the Regulatory Powers
Act.
1072. Part 4 of the Regulatory Powers Act creates a framework for allowing the civil
penalty provisions of the Bill to be enforced by obtaining an order for a person to pay a
pecuniary penalty. This would be explained by the note following subclause 189(1).
1073. Subclause 189(2) would provide that the Chair of the Regulator is the authorised
applicant for the purposes of Part 4 of the Regulatory Powers Act. This means it is the
Chair of the Regulator who would be able to apply to a court for an order for a person to
pay a civil penalty in relation to a contravention of a civil penalty provision in the Bill.
1074. Subclause 189(3) would allow the Chair of the Regulator, as the authorised applicant,
to delegate its powers and functions under Part 4 of the Regulatory Powers Act in
relation to the civil penalty provisions of this Bill to a person who is both a member of
the staff of the Regulator and is an SES employee or acting SES employee. The note
following subclause 189(3) explains that the terms SES employee and acting SES
employee are defined in section 2B of the AI Act.
1075. Subclause 189(4) would require a person exercising powers or performing functions
under a delegation under subclause 189(4) to comply with any directions of the Chair of
the Regulator (as the relevant Chief Executive).
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1076. Subclause 189(5) would provide that the Federal Court and a court of a State or
Territory that has relevant jurisdiction is a relevant court in relation to the civil penalty
provisions of this Bill.
1077. Subclause 189(6) would extend the operation of Part 4 of the Regulatory Powers Act,
as it relates to the Bill, to every external Territory. This is necessary because the
Regulatory Powers Act does not apply to external territories of its own accord. It would
also ensure that Part 4 of the Regulatory Powers Act (as it applies to the Bill) would
operate consistently with the Bill, which applies to all external territories (see clause 6).
1078. Subclause 189(7) would clarify that Part 4 of the Regulatory Powers Act, as it applies
in relation to the civil penalty provisions of the Bill, does not make the Crown liable to a
pecuniary penalty.
Division 5 - Infringement notices
Clause 190 - Infringement notices
1079. Clause 190 would trigger the standard provisions of Part 5 of the Regulatory Powers
Act.
1080. Part 5 of the Regulatory Powers Act creates a framework under which infringement
notices can be issued for specified contraventions against the Bill. This would be
explained by the note following subclause 190(1). Infringement notices are appropriate
to provide an alternative means of managing high-volume, low-penalty contraventions.
They do not constitute more than an allegation of contravention and provide an
administrative means of disposing of a matter.
1081. Subclause 190(1) would provide that all civil penalty provisions in the Bill would be
subject to the infringement notice scheme in Part 5 of the Regulatory Powers Act, other
than the civil penalty provisions in subclauses 46(1), 46(2), 113(1), 113(3), 116(4),
121(4), 121(7), 122(3) and 150(5), and clause 155. Civil penalty provisions are
generally appropriate to have an infringement notice scheme attached as they do not
contain proof of a fault element or state of mind. However, the excluded civil penalty
provisions are considered inappropriate for infringement notices because they involve
subjective matters, or because of the size of the penalty.
1082. A person who is given an infringement notice may choose to pay an amount as an
alternative to having court proceedings brought against them for contravention against
the Act. The infringement notice amount is one fifth of the maximum penalty for the
contravention.
1083. Subclause 190(2) would provide that an inspector, or a person who is both a member
of the staff of the Regulator and is an SES employee or acting SES employee, is an
infringement officer for the purposes of Part 5 of the Regulatory Powers Act.
1084. Subclause 190(3) would provide that the Chair of the Regulator is the relevant chief
executive for the purposes of Part 5 of the Regulatory Powers Act.
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1085. Subclause 190(4) would allow the Chair of the Regulator, as the relevant chief
executive, to delegate its powers and functions under Part 5 of the Regulatory Powers
Act in relation to the civil penalty provisions of this Bill to a person who is both a
member of the staff of the Regulator and is an SES employee or acting SES employee.
1086. The note following subclauses 190(2) and (4) would explain that the terms SES
employee and acting SES employee are defined in section 2B of the AI Act.
1087. Subclause 190(5) would require a person exercising powers or performing functions
under a delegation under subclause 190(4) to comply with any directions of the Chair of
the Regulator (as the relevant Chief Executive).
1088. Subclause 190(6) would extend the operation of Part 5 of the Regulatory Powers Act,
as it relates to the Bill, to every external Territory. This is necessary because the
Regulatory Powers Act does not apply to external territories of its own accord. It would
also ensure that Part 5 of the Regulatory Powers Act (as it applies to the Bill) would
operate consistently with the Bill, which applies to all external Territories (see clause 6).
Division 6 - Enforceable undertakings
Clause 191 - Enforceable undertakings
1089. Clause 191 would trigger the standard provisions of Part 6 of the Regulatory Powers
Act for all provisions of the Bill (including the rules, another legislative instrument
made under the Bill, and a relevant offence provision of the Crimes Act or the Criminal
Code).
1090. Triggering Part 6 of the Regulatory Powers Act would allow an enforceable
undertaking to be sought, agreed to, and enforced in relation to such provisions. This
would be explained by the note following subclause 191(1). An enforceable undertaking
is a written undertaking agreed to by a person to, for example, take a specified action,
that can be enforced in a relevant court.
1091. Subclause 191(2) would provide that the Chair of the Regulator is an authorised
person for the purposes of Part 6 of the Regulatory Powers Act. This means it is the
Chair of the Regulator who would be able to seek an enforceable undertaking under Part
6 in relation to a provision of the of the Bill.
1092. Subclause 191(3) would allow the Chair of the Regulator, as the authorised person, to
delegate its powers and functions under Part 6 of the Regulatory Powers Act in relation
to the Bill to a person who is both a member of the staff of the Regulator and is an SES
employee or acting SES employee.
1093. The note following subclauses 191(3) would explain that the terms SES employee and
acting SES employee are defined in section 2B of the AI Act.
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1094. Subclause 191(4) would require a person exercising powers or performing functions
under a delegation under subclause 191(4) to comply with any directions of the Chair of
the Regulator (as the authorised person).
1095. Subclause 191(5) would provide that the relevant court in relation to the provisions of
the Act that are subject to Part 6 of the Regulatory Powers Act is the Federal Court and
a court of a State or Territory that has relevant jurisdiction.
1096. Subclause 191(6) would allow the Regulator to cause an undertaking given under Part
6 of the Regulatory Powers Act in relation to a provision in the Bill to be published on
the Regulator's website.
1097. It is intended that publishing any undertaking given by a person would act as a
deterrent to contravention and therefore assist with ensuring the integrity of the market
established by the Bill. While it is acknowledged that this subclause would authorise the
Regulator to publish personal information within the meaning of the Privacy Act:
• it is expected that most persons, to whom the information would relate, would be a
body corporate, for which the Privacy Act does not apply;
• to the extent that any information published constitutes personal information
under the Privacy Act, the deterrent effect of publishing the information, and the
need to ensure the integrity of the market, outweighs the potential adverse
consequences to the individuals concerned; and
• the power in this subclause would be discretionary, and as such the Regulator
would retain the ability to decide not to publish any of the information relating to
an undertaking if they consider that, in the particular circumstances, the potential
adverse consequences of publishing the information outweigh the intended
deterrence effect.
1098. Subclause 191(7) would extend the operation of Part 6 of the Regulatory Powers Act
(as it relates to the Bill) to every external Territory. This is necessary because the
Regulatory Powers Act does not apply to external territories of its own accord. It would
also ensure that Part 6 of the Regulatory Powers Act (as it applies to the Bill) would
operate consistently with the Bill, which applies to all external Territories (see clause 6).
Division 7 - Injunctions
Clause 192 - Injunctions
1099. Clause 192 would trigger the standard provisions of Part 7 of the Regulatory Powers
Act for all provisions of the Bill (including the rules or another legislative instrument
made under the Bill, or a relevant offence provision of the Crimes Act or the Criminal
Code).
1100. Triggering Part 7 of the Regulatory Powers Act would allow an injunction to be
sought to enforce the provisions of the Bill. This would be explained by the note
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following subclause 192(1). An injunction (including an interim injunction) is a court
order that may be used to restrain a person from contravening a provision of Bill, or to
compel compliance with a provision of Bill.
1101. Subclause 192(2) would provide that the Chair of the Regulator is an authorised
person for the purposes of Part 7 of the Regulatory Powers Act for all the provisions of
the Bill or a legislative instrument made under the Bill. This means the Chair of the
Regulator would be able to seek an injunction from a relevant court in relation to any
provision of the Bill.
1102. Subclause 192(3) would allow the Chair of the Regulator, as the authorised person, to
delegate its powers and functions under Part 7 of the Regulatory Powers Act in relation
to the provisions of the Bill to a person who is both a member of the staff of the
Regulator and is an SES employee or acting SES employee.
1103. The note following subclause 192(3) would explains that the terms SES employee and
acting SES employee are defined in section 2B of the AI Act.
1104. Subclause 192(4) would require a person exercising powers or performing functions
under a delegation under subclause 192(3) to comply with any directions of the Chair of
the Regulator (as the relevant authorised person).
1105. Subclause 192(5) would provide that the Federal Court and a court of a State or
Territory that has relevant jurisdiction is a relevant court in relation to the provisions of
this Bill (or a legislative instrument made under the Bill).
1106. Subclause 192(6) would extend the operation of Part 7 of the Regulatory Powers Act,
as it relates to the Bill, to every external Territory. This is necessary because the
Regulatory Powers Act does not apply to external territories of its own accord. It would
also ensure that Part 7 of the Regulatory Powers Act (as it applies to the Bill) would
operate consistently with the Bill, which applies to all external territories (see clause 6).
PART 19 - NATURE REPAIR MARKET COMMITTEE
GENERAL OUTLINE
1107. Part 19 would set out provisions relating to, the Nature Repair Market Committee. It
would provide for the Committee's establishment, as well as set out its functions,
procedures, membership, appointment of Committee members and the duration for
which they would hold office, and the other terms and conditions on which Committee
members hold office.
1108. Part 19 would also provide for the Nature Repair Market Committee to be assisted in
the performance of its functions by the Department or another Commonwealth
Department, authority or agency, and to obtain advice from external persons that is
relevant to the performance of its functions.
NOTES ON INDIVIDUAL CLAUSES
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Division 1 - Introduction
Clause 193 - Simplified outline of this Part
1109. Clause 193 would provide a simplified outline of Part 19 of the Bill. The outline is not
intended to be comprehensive and has been included to assist readers to understand the
substantive provisions of Part 19, rather than to replace these provisions. It is intended
that readers will rely on the substantive clauses of Part 19.
Division 2 - Establishment and functions of the Nature Repair Market Committee
Clause 194 - Nature Repair Market Committee
1110. Clause 194 would establish the Nature Repair Market Committee.
1111. The note following clause 194 would explain that the Nature Repair Market
Committee is not a Commonwealth entity for the purposes of the PGPA Act.
Clause 195 - Functions of the Nature Repair Market Committee
1112. Clause 195 would set out the functions of the Nature Repair Market Committee. The
functions are:
• the functions conferred on the Committee by the Bill (including the rules or
another legislative instrument made under the Bill);
• to advise the Minister about matters that relate to biodiversity projects and that are
referred to the Committee by the Minister;
• to advise the Minister about the suspension of the consideration by the Regulator
of applications for the registration of biodiversity projects (see clause 16);
• to monitor the compliance of methodology determinations with the biodiversity
integrity standards;
• to advise the Minister or the Secretary about the development or prioritisation of
methodology determinations or biodiversity assessment instruments;
• to undertake public consultation in relation to advice to be given to the Minister or
the Secretary about the development or prioritisation of methodology
determinations or biodiversity assessment instruments;
• to undertake periodic reviews of methodology determinations or biodiversity
assessment instruments;
• to undertake public consultation in relation to reviews of methodology
determinations or biodiversity assessment instruments;
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• to advise the Minister or Secretary in relation to the outcomes of reviews of
methodology determinations or biodiversity assessment instruments and any
related public consultation;
• to do anything incidental to or conducive to the performance of the above
functions.
Clause 195A - Request for review of methodology determinations
1113. Clause 195A would allow a person to request the Nature Repair Market Committee to
undertake a review of one or more methodology determinations.
1114. A request under clause 195 would need to be made by written notice, and would need
to be accompanied by a statement that sets out the reasons why the methodology
determinations should be reviewed and, if there are any inconsistencies between the
methodology determinations and the biodiversity integrity standards, an explanation of
those inconsistencies.
1115. If the Nature Repair Committee receives a request under clause 195A, it must
consider whether to review the methodology determination or determinations that are
the subject of the request.
Clause 196 - Nature Repair Market Committee may obtain advice
1116. Clause 196 would make it clear that the Nature Repair Market Committee is able to
obtain advice, from persons or bodies with relevant experience or knowledge, if the
advice is relevant to the performance of its functions.
1117. For example, in reviewing a methodology determination, the Nature Repair Market
Committee would be able to seek advice from a person or persons who is considered to
have specialist expertise in a relevant field in order to properly inform the review of the
determination.
Clause 196A - Nature Repair Market Committee must publish outcomes of reviews
1118. Clause 196A would require the Nature Repair Market Committee to publish the
outcomes of any reviews it undertakes of a methodology determination or a biodiversity
assessment instrument on the Department's website.
Division 3 - Membership of the Nature Repair Market Committee
Clause 197 - Membership of the Nature Repair Market Committee
1119. Clause 197 would require the Nature Repair Market Committee to consist of a Chair
and at least 4, but no more than 5, other members.
Clause 198 - Appointment of Nature Repair Market Committee members
1120. Clause 198 would set out matters relating to the appointment of Nature Repair Market
Committee members.
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1121. Subclauses 198(1) and (6) would have the combined effect that Nature Repair Market
Committee members would be appointed on a part-time basis by the Minister by way of
written instrument. The note following subclause 198(1) would explain that section
33AA of the AI Act will then allow for a Committee member to be reappointed
following their initial term in the office.
1122. Subclause 198(2) would set out the pre-conditions to being appointed as a Nature
Repair Market Committee member. A person would only be eligible to be appointed as
a Nature Repair Market Committee member if the Minister is satisfied that the person
has substantial experience or knowledge, and significant standing, in any of the
following fields:
• agriculture relevant to the functions of the Committee ;
• biological or ecological science relevant to the functions of the Committee. This
would include people with a range of expertise in areas such as conservation
management or ecological restoration, or marine, terrestrial, freshwater or coastal
ecology ;
• economics relevant to the functions of the Committee;
• environmental markets relevant to the functions of the Committee;
• indigenous knowledge relevant to the functions of the Committee. It is expected
that this would be an Aboriginal person or a Torres Strait Islander;
• land management relevant to the functions of the Committee. This may include
protected area or reserve area management or catchment management;
1123. These fields are considered appropriate given the types of matters that the Nature
Repair Market Committee will primarily be advising on, particularly in relation to the
measurement and assessment of biodiversity in the context of a national biodiversity
market.
1124. The requirement for members to have both substantial experience or knowledge and
significant standing in their relevant field reflects the high level of expertise that is
considered necessary to provide independent expert advice to the Minister on these
matters in the context of a national nature repair market.
1125. Subclauses 198(3) and (4) would have the combined effect that the Minister must
ensure that there is at all times a Committee member with expertise in biological or
ecological science relevant to the functions of the Committee, and a Committee member
with expertise in indigenous knowledge relevant to the functions of the Committee. This
is intended to ensure that the Nature Repair Market Committee always has appropriate
and balanced expertise to properly perform its functions.
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1126. Subclause 198(5) would require the Minister to ensure that the Chair of the Nature
Repair Market Committee is not an employee of the Commonwealth or of an authority
of the Commonwealth, and does not hold a full-time office under a Commonwealth law.
This is to ensure the independence of the Nature Repair Market Committee.
Clause 199 - Period of appointment for Nature Repair Market Committee members
1127. Clause 199 would set out the period for which Nature Repair Market Committee
members are appointed.
1128. Subclause 199(1) would have the effect that the Chair of the Nature Repair Market
Committee holds office for the period specified in the relevant instrument of
appointment, which may be up to 5 years.
1129. Subclause 199(2) would have the effect that a Nature Repair Market Committee
member other than the Chair holds office for the period specified in the relevant
instrument of appointment, which may be up to 3 years.
1130. The notes following subclauses 199(1) and (2) would alert the reader that a Nature
Repair Market Committee member may be reappointed in the position, consistent with
section 33AA of the AI Act.
Clause 200 - Acting Nature Repair Market Committee members
1131. Clause 200 would deal with acting appointments in relation to the Nature Repair
Market Committee.
1132. Subclause 200(1) would allow the Minister to appoint a Nature Repair Market
Committee member to act as the Chair of the Nature Repair Market Committee when
the Chair is absent from Australia or unable to perform his or her duties, or where there
is a vacancy in the office of the Chair. The acting appointment may be for a single
period, or for all periods when the Chair is absent or unable to perform his or her duties.
1133. Subclause 200(2) would allow the Minister to appoint a person to act as a member of
the Nature Repair Market Committee when a Committee member is absent from
Australia or unable to perform his or her duties as a Committee member, or where there
is a vacancy in the office of a Committee member. The acting appointment may be for a
single period, or for all periods when a Nature Repair Market Committee member is
absent or unable to perform his or her duties.
1134. A person who is not a member of the Nature Repair Market Committee would not be
able to be appointed to act as the Chair of the Committee.
1135. In addition, a person would only be able to be appointed to act as a member of the
Nature Repair Market Committee if he or she is eligible to be appointed as a substantive
member of the Nature Repair Market Committee under clause 198 (subclause 200(3)).
This requirement would have the effect of ensuring all acting Committee members have
the appropriate knowledge or experience, and standing, in one or more of the relevant
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fields. This will ensure the integrity of advice provided by the Nature Repair Market
Committee to the Minister.
1136. The notes following subclauses 200(1), (2) and (3) explain that the ordinary operation
of the AI Act is also relevant to acting appointments to the Nature Repair Market
Committee, as it has the effect that while an acting appointee is in office (whether as a
member of the Committee or the Chair), that person has all the powers and functions of
the holder of the office. This means that persons acting as members of the Nature Repair
Market Committee, or as the Chair, will be entitled to the same remuneration, and be
subject to the same requirements (such as disclosure of potential conflicts of interest), as
other members.
Clause 201 - Procedures
1137. Subclause 201(1) would allow the procedures to be followed at or in relation to
meetings of the Nature Repair Market Committee to be prescribed in the rules. This
would include procedures concerning:
• the convening of meetings of the Committee;
• the number of Committee members who are to constitute a quorum;
• the selection of a Committee member to preside at meetings of the Committee in
the absence of the Chair of the Committee;
• the manner in which questions arising at a meeting of the Committee are to be
decided.
1138. The Nature Repair Market Committee would also be able to elect to adopt the
procedures set out in subclause 200(2) in respect to the passing of resolutions at
Committee meetings. The procedures in subclause 200(2) would allow a resolution to be
taken to have been passed if, without meeting, a majority of Committee members
indicate agreement with the resolution in accordance with the agreed method, and all
Committee members were informed of the proposed resolution (or reasonable efforts
were made to inform all Committee members of the proposed resolution).
1139. In order to elect for such procedures to apply, the Committee would need to so
determine and would need to also determine the method by which Committee members
would indicate agreement with proposed resolutions.
1140. This clause is not intended to be prescriptive in relation to how the Nature Repair
Market Committee would make decisions. Subject to some minimal procedural
requirements that may be prescribed in the rules, the Committee would be able to
regulate proceedings at its meetings as it considers appropriate.
Clause 202 - Disclosure of interests to the Minister
1141. Clause 202 would require a Nature Repair Market Committee member to give the
Minister written notice of all interests (pecuniary or otherwise) that he or she has or
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acquires, and that conflict or could conflict with the proper performance of the
member's functions.
1142. This purpose of this clause is to ensure the Minister is aware of any conflicts of
interest (or potential conflicts of interest) that may affect the Committee's performance
of its functions. This will allow the Minister to make an informed decision about the
appropriate action to take (if any) to resolve any such conflicts.
Clause 203 - Disclosure of interests to the Nature Repair Market Committee
1143. Clause 203 is also intended to avoid potential conflicts of interest.
1144. Subclause 203(1) would require a Nature Repair Market Committee member to
disclose to a meeting of the Committee the nature of any interests (pecuniary or
otherwise) that they have in a matter being considered by the Committee. This
disclosure must be made as soon as possible after the member becomes aware of the
relevant facts (subclause 203(2)) and must be recorded in the minutes of the relevant
Committee meeting (subclause 203(3)).
1145. Subclauses 203(4) to (6) would set out the processes that must be followed by the
Nature Repair Market Committee once a member has disclosed an interest under
subclause 203(1). The general rule would be that the affected Committee member must
not be present during deliberations about the matter and must not participate in any
decision of the Committee with respect to that matter.
1146. However, an exception may be made if determined by the Committee. Any such
determination must be deliberated on and made without the presence or participation of
the affected member and must be recorded in the minutes of the relevant Committee
meeting. The ability for the Nature Repair Market Committee to make an exception to
the general rule on a case-by-case basis is considered appropriate due to the potential
variance in the nature of a member's interests and the relevance of that person's
expertise to the matter being considered.
Clause 204 - Other paid work
1147. Clause 204 would prevent a Nature Repair Market Committee member from engaging
in paid work that conflicts, or could conflict, with the proper performance of the
person's duties as a Nature Repair Market Committee member.
1148. This requirement is considered appropriate to avoid conflicts of interests and ensure
the integrity of the Nature Repair Market Committee function under the Bill.
Clause 205 - Remuneration
1149. Clause 205 would deal with the remuneration and allowances of Nature Repair
Market Committee members.
1150. Subclause 205(1) would have the effect that Nature Repair Market Committee
members are entitled to be paid the remuneration that is determined by the
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Remuneration Tribunal or, if no rate has been determined, the amount that is prescribed
in the rules.
1151. Committee members would also be entitled to the allowances prescribed in the rules
(subclause 205(2)).
1152. Subclause 205(3) would clarify that this clause has effect subject to the Remuneration
Tribunal Act 1973. This means that any requirements relating to remuneration
determined by the Remuneration Tribunal under that Act will apply to members of the
Nature Repair Market Committee, even if inconsistent with clause 205.
Clause 206 - Leave of absence
1153. Clause 206 would set out the arrangements for leaves of absence from the Nature
Repair Market Committee.
1154. For ordinary members of the Committee, the Chair may grant a leave of absence. For
the Chair of the Nature Repair Market Committee, only the Minister will be able to
grant a leave of absence. A leave of absence granted under clause 206 would be subject
to the terms and conditions that the Chair or Minister (as the case may be) determines.
Clause 207 - Resignation
1155. Clause 207 would set out the process for resignation from the Nature Repair Market
Committee.
1156. A Nature Repair Market Committee member would be able to resign his or her
appointment by giving the Minister a written resignation. The resignation would take
effect on the day it is received by the Minister, or on a later day specified in the
resignation.
Clause 208 - Termination of appointment
1157. Clause 208 would set out the circumstances in which the Minister may terminate the
appointment of a Nature Repair Market Committee member. These circumstances
include misbehaviour, where the member is unable to perform their duties because of
physical or mental incapacity, being absent for 3 consecutive meetings without being
granted a leave of absence, failure to comply with the requirements of clauses 203, 204
and 205 (dealing with conflicts of interest) and various scenarios relating to bankruptcy
or insolvency of the member.
1158. Subclause 208(3) would also make it clear that the Minister may terminate the
appointment of the Chair of the Nature Repair Market Committee if the Chair is an
employee of the Commonwealth or a Commonwealth authority, or if the Chair holds a
full-time office under a law of the Commonwealth.
Clause 209 - Other terms and conditions
1159. Clause 209 would allow the Minister to set additional terms and conditions that apply
to the office of a Nature Repair Market Committee member. Any additional terms or
conditions must be determined in writing.
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1160. Allowing additional terms and conditions to be set by the Minister would provide
flexibility to tailor the terms and conditions to specific members or for specific
functions, as considered appropriate. It would also allow the Minister to respond to
changing circumstances that affect the performance of the Committee's functions.
Clause 210 - Assistance to Nature Repair Market Committee
1161. Clause 210 would clarify that, in the performance of their functions under the Bill, the
Nature Repair Market Committee may be assisted by the Regulator, the Department or
any other Commonwealth Department, authority or agency.
1162. The Regulator would only be able to provide assistance that includes the provision of
information or advice.
1163. The Department, or any other Commonwealth Department, authority or entity, would
be able to provide assistance that includes the provision of information or advice, and
the making available of resources and facilities (including secretariat services and
clerical assistance).
1164. An officer or employee of the Department or other Commonwealth Department,
authority or agency who assists the Nature Repair Market Committee would be taken to
be a person assisting the Committee for the purposes of this clause. This is relevant to
clause 228 of the Bill, which would make it clear that a person assisting the Nature
Repair Market Committee would not be liable to an action or other proceeding in
damages for, or in relation to, an act or omission done in the performance or purported
performance of functions under the Bill or in the exercise or purported exercise of
powers under the Bill, provided the act or omission was done in good faith.
Clause 210A - Application of the finance law
1165. Clause 210A would clarify that a member of the Nature Repair Market Committee
would not be an official of the Department for the purposes of the finance law (within
the meaning of the PGPA Act).
PART 20 - REVIEW OF DECISIONS
GENERAL OUTLINE
1166. Part 20 would set out which decisions under the Bill are merits reviewable, and who
may apply for an internal and external review of the decision. It will also provide for the
process for internal review of decisions.
NOTES ON INDIVIDUAL CLAUSES
Division 1 - Introduction
Clause 211 - Simplified outline of this Part
1167. Clause 211 would provide a simplified outline of Part 20 of the Bill. The outline is not
intended to be comprehensive and has been included to assist readers to understand the
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substantive provisions of Part 20, rather than to replace these provisions. It is intended
that readers will rely on the substantive clauses of Part 20.
Division 2 - Decisions of the Regulator
Clause 212 - Decisions of the Regulator
1168. Clause 212 would list all the decisions under the Bill that are reviewable decisions.
1169. Reviewable decisions would be subject to merits review. There would be two avenues
for merits review under the Bill: internal reconsideration by the Regulator (for
reviewable decisions that were made by a delegate of the Regulator) and external merits
review by the AAT (for reviewable decisions that were made by the Regulator
personally or that have already been reconsidered under this Part of the Bill). The
objective of merits review is to ensure that decisions are correct and preferable
according to the facts on which the decision was based, and that all persons affected by
a decision are treated fairly. Allowing access to merits review would encourage quality,
consistency, openness and accountability in decisions made by the Regulator.
1170. A person would be able to seek merits review of a reviewable decision if their
interests are affected by the decision (this is consistent with section 27 of the
Administrative Appeals Tribunal Act 1975 (AAT Act)).
1171. Under clause 212, each of the following would be a reviewable decision for the
purposes of the Bill:
• a decision under clause 15 to approve, or refuse to approve, the registration of a
biodiversity project;
• a decision under rules made for the purposes of clause 19, 20 or 21 to vary, or
refuse to vary, the registration of a registered biodiversity project;
• a decision under rules made for the purposes of clause 23 or 24 to cancel, or
refuse to cancel, the registration of a registered biodiversity project;
• a decision under rules made for the purposes of clause 26, 27, 28, 29, 30, 31 or 42
to cancel the registration of a registered biodiversity project;
• a decision under clause 34 to extend, or not to extend, the permanence period for a
registered biodiversity project;
• a decision under clause 70 to issue, or refuse to issue, a biodiversity project;
• a decision under subclause 102(3) to exempt, or refuse to exempt, a registered
biodiversity project from the requirement to provide a category A biodiversity
project report;
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• a decision under subclause 121(9) to reimburse, or refuse to reimburse, a person
for reasonable costs associated with the carrying out of an audit;
• a decision under clause 141 to approve, or refuse to approve, the deposit of a
biodiversity certificate with the Regulator;
• a decision under clause 144, 145, 146 or 147 to give a relinquishment notice;
• a decision under subclause 150(2) to refuse to extend the period mentioned in
subclause 150(1);
• a decision under clause 154 to make a biodiversity maintenance declaration;
• a decision under clause 157 to vary or revoke, or to refuse to vary or revoke, a
biodiversity maintenance declaration;
• a decision under clause 158 to revoke, or to refuse to revoke, a biodiversity
maintenance declaration;
• a decision under paragraph 162(1)(i) to comply with, or refuse, a request under
that paragraph;
• a decision under subclause 162(4) to remove, or not to remove, information from
the Register;
• a decision under clause 163 to comply with, or refuse, a request not to set out a
project area in the Register;
• a decision under clause 163A to comply with, or refuse, a request not to set out
information in the Register;
• a decision under a provision of the rules, or under a provision of another
legislative instrument made under the Bill, if the provision is prescribed by the
rules or the legislative instrument. This would allow for administrative decisions
in the rules or a methodology determination to be made merits reviewable.
1172. Internal reconsideration and external merits review would not be available if a
decision is not listed in clause 212 as a reviewable decision. Any exceptions to merits
review have been carefully considered and assessed as being consistent with
Commonwealth policy on administrative review and the Commonwealth Administrative
Review Council publication: What Decisions should be subject to Merit Review?
1173. For example, the list does not include decisions where the Regulator has no
discretion, such as a decision of the Regulator to remove the entry for a certificate from
a person's Register account where the person relinquishes the certificate (under clause
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152), or a decision to refund an application fee where the application is withdrawn
before it is registered (under clause 14).
1174. The list also does not include decisions that are of a legislative character, such as a
decision by the Minister to make, vary or revoke a methodology determination. These
kinds of decisions, being made by legislative instrument, are of legislative character and
therefore not appropriate for merits review.
1175. This clause would not limit the rights of a person who is aggrieved by a decision from
seeking judicial review of the decision under the Administrative Decisions (Judicial
Review) Act 1977, the Judiciary Act 1903 or the Australian Constitution.
Clause 213 - Notice of decision and reconsideration rights to be given - decisions made
by delegates of the Regulator
1176. Clause 213 would apply to a reviewable decision if the reviewable decision was made
by a delegate of the Regulator.
1177. Under subclause 213(2), the delegate would be required to take such steps that are
reasonable in the circumstances to notify, in writing or otherwise, each person whose
interests are affected by the decision of the making of the decision and the person's right
to have the decision reconsidered under this Part of the Bill.
1178. The note following subclause 213(2) would explain that notification requirements for
reviewable decisions that are made by the Regulator (not by a delegate) are set out in
section 27A of the AAT Act. This is because such decisions are not eligible to be
internally reconsidered by the Regulator under this Part of the Bill. Instead, such
decisions would be externally reviewable by the AAT (see clause 217).
1179. Subclause 213(3) would have the effect that failure to provide the notice required
under clause 213 would not affect the validity of the original reviewable decision.
1180. The purpose of subclause 213(3) is to provide the necessary certainty for both
industry and the Commonwealth as to whether a decision is in force. This is particularly
the case where, for example, a decision has been made to refuse to approve the
registration of a biodiversity project, or to refuse to issue a biodiversity certificate for a
registered biodiversity project. In these instances, it is important that industry has
sufficient certainty over the decision to reduce any further regulatory burden and to
minimise any possibility of non-compliance.
1181. It is also important that decisions relating to relinquishment of a biodiversity
certificate or variation or cancellation of the registration of a biodiversity project are
made in a timely way and with sufficient certainty. This enables an effective response to
manage and mitigate any harm to the environment that may result from the matters that
necessitated the relinquishment, variation or cancellation (such as a significant reversal
of biodiversity outcome) and to ensure Australia's continued compliance with its
international obligations and its international relations in relation to biodiversity.
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Subclause 213(3) would provide the necessary regulatory certainty that is required to
deal with these situations.
Clause 214 - Application for reconsideration of decisions made by delegates of the
Regulator
1182. Clause 214 would set out the requirements for a person to apply for the
reconsideration of a reviewable decision made by a delegate of the Regulator. The note
following subclause 214(1) would alert the reader that subclause 217(2) of the Bill
would deal with review of decisions that were made by the Regulator (not a delegate).
1183. A person who is affected by a reviewable decision and is dissatisfied with the decision
would be able to apply to the Regulator for a reconsideration of the decision (subclause
214(2)). The application would be required to be in the approved form, set out the
reasons the person wants the decision reconsidered and be accompanied by the fee
specified in the rules (if any) (subclause 214(3)). The application would also need to be
made within 28 days of the applicant being informed of the original decision, or a
longer period if the period is extended by the Regulator (subclause 214(4)).
1184. Subclause 214(5) would clarify that the approved form may require statements in the
application to be verified by statutory declaration.
1185. Subclause 214(6) would clarify that an application fee specified in the rules must not
be such as to amount to taxation.
Clause 215 - Reconsideration by the Regulator
1186. Clause 215 would set out the requirements of the reconsideration decision.
1187. Subclause 215(1) would require the Regulator, after receiving an application for
reconsideration of a reviewable decision, to reconsider the decision and to affirm, vary
or revoke the original decision.
1188. If the Regulator revokes the original decision, the Regulator would also be able to
make such other decision as the Regulator considers appropriate.
1189. Subclause 215(2) would clarify that a reconsideration decision made under clause 215
would take effect as if it had been made under the provision under which the original
decision was made. In other words, the Regulator, when making a reconsideration
decision, would stand in the shoes of the original decision-maker.
1190. Subclauses 215(3) and (4) would have the combined effect that after having made a
reconsideration decision under clause 215, the Regulator must give the applicant a
written notice of the reconsideration decision, and must also give the applicant a written
statement of reasons for the reconsideration decision within 28 days of making the
decision.
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Clause 216 - Deadline for reconsideration
1191. Clause 216 would require the Regulator to make its decision on reconsideration of a
decision within 90 days after receiving an application for reconsideration of that
decision.
1192. If the Regulator does not inform the applicant of its decision within 90 days, the
Regulator would be taken to have affirmed the original decision. This would provide
certainty for applicants.
Clause 217 - Review by the Administrative Appeals Tribunal
1193. Clause 217 would provide for external merits review of reviewable decisions by the
AAT in certain circumstances.
1194. There would be two kinds of reviewable decisions for which an application may be
made to the AAT for external review. The first is where the Regulator has reconsidered
the decision under clause 215 and has affirmed or varied the original decision. The
second is where the reviewable decision was made by the Regulator personally (ie not
by a delegate).
1195. In other words, where reconsideration (internal merits review) is available, the person
affected by the reviewable decision would be required to avail themselves of that option
before they could apply to the AAT for external merits review.
1196. Section 27 of the AAT Act sets out who is a person affected by a reviewable decision
for the purposes of applying for AAT review of the decision. The note following
subclause 217(2) would refer the reader to section 27A of the AAT Act, which requires
such persons to be notified of a decision that is reviewable.
PART 21 - MISCELLANEOUS
GENERAL OUTLINE
1197. Part 21 of the Bill would deal with miscellaneous matters including additional
functions of the Regulator, how trusts would be treated under the Bill, voluntary
accreditation of advisers, information previously given to the Regulator, arrangements
with States and Territories and concurrent operation of State and Territory laws,
interaction with other legislation or legal doctrines, liability for damages, and
compensation for acquisition of property.
1198. Part 21 would also provide for the delegation of powers, require 5 yearly reviews of
the operation of the Bill, and enable the Minister to make the rules.
NOTES ON INDIVIUDAL CLAUSES
Clause 218 - Simplified outline of this Part
1199. Clause 218 would provide a simplified outline of Part 21 of the Bill. The outline is not
intended to be comprehensive and has been included to assist readers to understand the
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substantive provisions of Part 21, rather than to replace these provisions. It is intended
that readers will rely on the substantive clauses of Part 21.
Clause 219 - Miscellaneous functions of the Regulator
1200. Clause 219 would confer a number of functions on the Regulator that are necessary
for the proper, effective and efficient administration of the scheme created by the Bill.
The functions conferred by clause 219 would be in addition to the specific functions
conferred on the Regulator by other provisions of the Bill.
1201. It is necessary for the Regulator's functions to be set out in the Bill, as the Regulator
is a statutory agency and has only the functions conferred on it by legislation.
1202. The functions conferred on the Regulator by clause 219 would be:
• to monitor and promote compliance with the Bill (including the rules and other
legislative instruments made under the Bill);
• to conduct or coordinate education programs about the Bill (including the rules
and other legislative instruments made under the Bill);
• to advise the Minister on matters relating to the Bill (including the rules and other
legislative instruments made under the Bill);
• to advise the Nature Repair Market Committee on matters relating to the making,
variation or revocation of methodology determinations or biodiversity assessment
instruments;
• to advise and assist persons in relation to their obligations under the Bill
(including the rules and other legislative instruments made under the Bill);
• to advise and assist prospective applicants in connection with ensuring that
applications are in accordance with the Bill (including the rules and other
legislative instruments made under the Bill);
• to advise and assist the representatives of persons in relation to compliance by
persons with the Bill (including the rules and other legislative instruments made
under the Bill);
• to liaise with regulatory and other relevant bodies, whether in Australia or
elsewhere, about cooperative arrangements for matters relating to the Bill
(including the rules and other legislative instruments made under the Bill);
• to advise and assist in relation to the development of the market for biodiversity
certificates, or other certificates, units or credits (however described, and whether
issued under a Commonwealth, State or Territory law or in some other way) that
relate to biodiversity projects;
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• to collect, analyse, interpret and disseminate statistical information relating to the
operation of the Bill (including the rules and other legislative instruments made
under the Bill).
Clause 220 - Treatment of trusts
1203. Clause 220 deals with how conduct by a trust would be treated under the Bill.
Generally, the Bill would apply to a trust as if the trust were a person. However, specific
provisions have been included to deal with the fact that trust may have one or more
trustees (the relevant legal entity).
1204. Under subclause 220(2), if the trust has a single trustee, an obligation that the Bill
imposes on a trust, will be imposed on the trustee instead. The trustee will also be taken
to have contravened a civil penalty provision that would otherwise been contravened by
the trust. This is appropriate as the trustee is the relevant legal entity and has legal
responsibility for the operation of the trust.
1205. Subclause 220(3) deals with trusts that have two or more trustees. In that
circumstance, paragraph (a) would provide that an obligation that the Bill imposes on a
person is instead imposed on each trustee. The obligation, however, can be discharged
by any of the trustees. The purpose of this provision is to make it clear that all trustees
are not required to take joint action to discharge an obligation under the Bill.
1206. Paragraph 220(3)(b) would limit liability for the contravention of a civil penalty
provision in the Bill to those trustees who were involved (both directly and indirectly) in
the relevant act or omission constituting the contravention, including those who aided,
abetted, counselled or procured the act or omission. The purpose of this provision is so
that trustees who had no knowledge of the contravention are not punished for it.
Clause 221 - Rules may provide for voluntary accreditation of advisers etc
1207. Clause 221 would enable the Minister to make rules for and in relation to the
voluntary accreditation of persons to give advice, or otherwise provide assistance, in
relation to the operation of the Bill, the carrying out of biodiversity projects or the
trading of biodiversity certificates (subclause 221(1)).
1208. The rules would not be able to require a person to be accredited in order engage in
any of these activities (subclause 221(4)). However, as an example, the rules would be
able to make it a condition of accreditation that a person be a fit and proper person to
hold the accreditation, or to pass a test relating to the person's knowledge of the scheme
created by the Bill. The rules would also be able to set fees for applications for
accreditation, provided the fee is not set at an amount that would amount to taxation
(subclauses 221(2) and (3)).
1209. Providing for a voluntary accreditation system for advisers would allow project
proponents and prospective project proponents to be able to confidently engage
accredited advisers on the basis that have proven themselves sufficiently knowledgeable
about matters relevant to the Bill. This would likely increase the quality of advice being
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provided on a consistent basis and reduce the prospect of fraudulent or inaccurate
advice. It would also create an incentive for persons who wish to provide advice
relevant to the national biodiversity market proposed by the Bill to become accredited
so that they can market themselves as credible and effective.
Clause 222 - Information previously given to the Regulator
1210. Clause 222 would have the effect that where a person gave information to the
Regulator under the Bill (including the rules), or under the CFI Act or a legislative
instrument made under that Act, the person would not be required to provide the same
information to the Regulator again to meet a subsequent requirement in Bill (or rules).
Instead, the Regulator would be able to use the information that was previously
provided in order to meet that subsequent requirement.
1211. The purpose of this provision is to prevent persons from having to provide the same
information to the Regulator on multiple occasions and reduce unnecessary duplication.
Clause 223 - Delegation by the Minister
1212. Clauses 223 would allow the Minister to delegate, in writing, any or all of the
Minister's functions and powers under the Bill (including the rules) to the Secretary or
an SES employee, or acting SES employee, in the Department.
1213. The ability for the Minister to delegate their functions and powers does not extend to
the power of the Minister to make, vary or revoke a legislative instrument. This means
that legislative instruments such as the rules (under clause 237), a methodology
determination (under clause 45) or an instrument that sets the date on which applications
to register a biodiversity project (under clause 16) would be required to be made by the
Minister personally.
1214. In performing functions or exercising powers, delegates must comply with any written
directions of the Minister (subclause 223(2)). This restriction is intended to ensure that
powers exercised by delegates are exercised appropriately and consistently.
1215. As an additional safeguard to ensure the appropriate and reasonable use of
delegations, the giving of delegations and the exercise of delegated powers are also
subject to fraud control procedures, risk management processes and other protocols.
These are designed to ensure delegated decision-making is made at the appropriate level
and in a transparent and accountable manner.
1216. The first note following subclause 223(1) would explain that the terms SES employee
and acting SES employee are defined in section 2B of the AI Act. The second note
following subclause 183(1) would refer the reader to sections 34AA to 34A of the AI
Act, which deal with delegations.
Clause 224 - Delegation by the Secretary
1217. Clause 224 would allow the Secretary to delegate the Secretary's functions or powers
under the Bill (including the rules) to:
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• An SES employee, or acting SES employee, in the Department; or
• a person who is both an official of the Regulator and an SES employee or acting
SES employee.
1218. It is considered appropriate for the Secretary to be able to delegate powers to SES
level officials in both the Department and the Regulator given the nature of the
Secretary's powers and functions in the Bill, which primarily relate to the purchase of
biodiversity certificates, and the conducting of purchasing processes, by the
Commonwealth.
1219. In performing functions or exercising powers, delegates must comply with any written
directions of the Secretary (subclause 224(2)). This restriction is intended to ensure that
powers exercised by delegates are exercised appropriately and consistently.
1220. As an additional safeguard to ensure the appropriate and reasonable use of
delegations, the giving of delegations and the exercise of delegated powers are also
subject to fraud control procedures, risk management processes and other protocols.
These are designed to ensure delegated decision-making is made at the appropriate level
and in a transparent and accountable manner.
1221. The first note following subclause 224(1) would explain that the terms SES employee
and acting SES employee are defined in section 2B of the AI Act. The second note
following subclause 183(1) would refer the reader to sections 34AA to 34A of the AI
Act, which deal with delegations.
Clause 225 - Concurrent operation of State and Territory laws
1222. Clause 225 would provide that the Bill is not intended to exclude or limit the
operation of a law of a State or Territory that is capable of operating concurrently with
it.
1223. This means that, for instance, State or Territory environmental protection laws (and
necessary regulatory approvals) will still apply to registered biodiversity projects. In
addition, the Bill would not prevent biodiversity projects that are registered under State
or Territory biodiversity markets (or other such markets) from also participating in the
national market created by this Bill.
Clause 226 - Law relating to legal professional privilege not affected
1224. Clause 226 would make it clear that the Bill would not affect the law relating to legal
professional privilege. This means that the provisions in the Bill would not abrogate,
either by words or operation, the doctrine of legal professional privilege.
Clause 227 - Arrangements with States and Territories
1225. Clause 227 would allow the Minister to enter into an arrangement with a relevant
State or Territory Minister in relation to the administration of the Bill.
1226. Potential arrangements could include arrangements for:
208
• the performance of the functions of a magistrate under the Bill by a magistrate of
that State or Territory;
• the exercise of the powers conferred by clauses 94 or 95 of the Bill on relevant
land registration officials of that State or Territory.
1227. The Minister's power under clause 227 would be discretionary. In addition, the
Minister would not be able to compel State or Territory officials to perform functions or
exercise powers under the Bill without the agreement of the relevant State or Territory.
Clause 228 - Liability for damages
1228. Clause 228 would have the effect that certain persons would not be liable to an action
or other proceedings for damages for, or in relation to, an act or matter done or omitted
to be done in the performance or purported performance of any function or in the
exercise or purported exercise of any power conferred by the Bill or a legislative
instrument made under the Bill - provided the act or omission is carried out in good
faith.
1229. The persons who would be covered by clause 228 are the Minister, a delegate of the
Minister, the Secretary, a delegate of the Secretary, the Regulator, a delegate of the
Regulator, an inspector, a person assisting an inspector, an audit team leader, a person
assisting an audit team leader, a Nature Repair Market Committee member and a person
assisting a Nature Repair Market Committee member under clause 210.
1230. This provision would ensure that persons with functions or powers under the
legislation are able to perform their functions or exercise their powers without fear of
legal action being taken against them, as long as they act in good faith when doing so.
Clause 229 - Executive power of the Commonwealth
1231. Clause 229 would clarify that the Bill does not, by implication limit the executive
power of the Commonwealth.
Clause 230 - Notional payments by the Commonwealth
1232. Clause 230 would ensure that amounts payable under the Bill or the rules are
notionally payable by the Commonwealth (or parts of the Commonwealth). An example
would be if the Commonwealth applied to register a biodiversity project and a relevant
application fee had been prescribed.
1233. Subclause 230(2) would enable the Minister administering the PGPA Act (the
Finance Minister) to give written directions to give effect to this notional liability,
including for the notional transfer of money between or within Commonwealth financial
accounts.
1234. Subclause 230(3) would provide that directions made under subclause 230(2) have
effect and must be complied with, despite any other Commonwealth law. Subclause
230(4) would provide that a direction that may be given by the Finance Minister in
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accordance with subclause 230(2) would not be a legislative instrument for the purposes
of the Legislation Act. This is declaratory of the law and included to assist readers. It is
not intended to be an exemption from the Legislation Act.
Clause 231 - Compensation for acquisition of property
1235. This clause would provide for reasonable compensation to be paid to a person if the
operation of the Bill would result in an acquisition of property by the Commonwealth
on otherwise than just terms. The purpose is to ensure that the relevant provisions of the
Bill are consistent with the requirements of section 51(xxxi) of the Constitution. The
person affected may institute court proceedings in the Federal Court or the Supreme
Court of a State or Territory to determine the amount of compensation they are entitled
to if they cannot come to an agreement with the Commonwealth on what is reasonable
in the circumstances.
Clause 232 - Native title rights not affected
1236. Clause 232 would make it clear that the Bill would not affect the operation of the
Native Title Act.
1237. Rather, it is intended that the approach to native title in the Bill would be consistent
with, and operate alongside, the Native Title Act.
Clause 233 - Racial Discrimination Act not affected
1238. Clause 233 would make it clear that the Bill would not affect the operation of the
Racial Discrimination Act 1975 (RD Act).
1239. Rather, it is intended that the Bill would be consistent with, and operate alongside, the
RD Act, including by promoting the rights inherent in that Act.
Clause 234 - Administrative decisions under the rules
1240. Clause 234 would clarify that the rules would be able to make provision in relation to
a matter by conferring a power to make a decision of an administrative character on the
Regulator.
1241. Any administrative decisions that the rules confer on the Regulator would be able to
be prescribed as reviewable decisions for the purposes of the Bill (see subclause 212(l)).
Clause 235 - Revocation or variation of instruments
1242. Clause 235 would clarify that the power in subsection 33(3) of the AI Act would
apply to instruments made under the Bill, except where the Bill expressly authorises the
revocation or variation of the instrument.
1243. Subsection 33(3) of the AI Act has the effect that where an Act confers a power to
make, grant or issue any instrument of a legislative or administrative character
(including rules and determinations) the power shall be construed as including a power
to vary or revoke that instrument, in like manner and subject to the like conditions.
210
1244. This means that where the Bill does not provide an express power to vary or revoke
an instrument, the instrument would be able to be varied or revoked in reliance on
subsection 33(3) of the AI Act - but only if the variation or revocation is done 'in a like
manner and subject to like conditions'. This means that the instrument maker would be
required to comply with the same pre-conditions as for making the instrument in the
first place.
1245. In contrast, where the Bill provides an express power to vary or revoke an instrument,
the variation or revocation would only have to comply with the conditions set out in the
Bill for exercising that power (if any). This would be the case for varying or revoking
methodology determinations or biodiversity assessment instruments.
1246. The purpose of this provision is to clarify that 'turning off' subsection 33(3) of the AI
Act for some instruments would not have the effect of turning it off for any other
instrument made under the Bill that does not have an express variation or revocation
power in the Bill.
Clause 236 - Review of operation of this Act etc
1247. Clause 236 would deal with the requirements for statutory reviews of the Bill. This is
a key integrity measure for the Bill.
1248. The combined effect of subclause 236(1), (8) and (9) would be to require the Minister
to:
• cause an independent review of the operation of the Bill to be completed within 5
years after the date determined by the Minister in subclause 11(2) (the first day on
which applications to register a biodiversity project may be made - see the note
following subclause 236(8)); and
• cause subsequent independent reviews to be completed every 5 years following
the completion of the previous review.
1249. Reviews of the operation of the Bill under this clause would include a review of the
operation of the rules and other legislative instrument made under the Bill (see
definition of this Act in clause 7).
1250. Subclause 236(2) would require the review to include a review of each of the
following:
• the extent to which the Bill has achieved its objects;
• the operation of the Nature Repair Market Committee;
• the process for making methodology determinations and biodiversity assessment
instruments;
211
• the kinds of advice obtained by the Nature Repair Market Committee under
clause 196; and
• any other matters that the Minister directs, in writing, the review to consider.
1251. A review would be required to make provision for public consultation (subclause
236(3)).
1252. Subclauses 236(4) and (5) would set out the requirements for review reports. The
persons undertaking a review under subclause 236(1) would be required to give the
Minister a written report of the review. The report must set out any directions given by
the Minister under paragraph 236(2)(e) and may set out recommendations to the
Commonwealth Government. A review would be completed when the report of that
review is given to the Minister (subclause 236(7C)).
1253. Subclauses 236(6) and (7) would set out the Minister's obligations following receipt
of a review report. The Minister would be required to cause a copy of the review report
to be tabled in each House of the Parliament within 15 sitting days of the Minister
receiving the report. The Minister would also be required to cause a copy of the review
report to be published on the Department's website as soon as practicable after receiving
the report.
1254. If the report sets out one or more recommendations to the Commonwealth
Government, the Minister must also, as soon as practicable after receiving the report,
cause to be prepared a statement setting out the Commonwealth Government's response
to each of the recommendations. Within 6 months after receiving the report, the
Minister would be required to cause copies of that statement to be tabled in each House
of Parliament.
1255. Subclause 236(11) would clarify that a direction made under paragraph 236(2)(e)
would not be a legislative instrument. This is declaratory of the law and included to
assist readers. It is not intended to be an exemption for the purposes of the Legislation
Act.
Clause 237 - Rules
1256. Subclause 237(1) would allow the Minister to make rules prescribing matters required
or permitted by the Bill to be prescribed by the rules, or matters that are necessary or
convenient to be prescribed for carrying out or giving effect to this Bill.
1257. Rules made under clause 237 would be a legislative instrument for the purposes of the
Legislation Act and would be available on the Federal Register of Legislation.
1258. Throughout the Bill there are numerous references to matters that may be prescribed
in the rules. For instance, the rules may:
• specify additional information or documents that must be included in or with an
application to register a biodiversity project (clause 12);
212
• specify additional eligibility requirements that must be met before the Regulator
can approve the registration of a biodiversity project (clause 15);
• make provision for and in relation to empowering the Regulator to vary the
registration of a biodiversity project (clauses 19 - 22);
• make provision for and in relation to empowering the Regulator to cancel the
registration of a biodiversity project (clauses 23 - 32, 42);
• specify excluded biodiversity projects (clause 33);
• specify additional biodiversity integrity standards (clause 57);
• specify conditions that must be met for a project proponent to apply for a
biodiversity certificate (clause 67);
• specify additional information or documents that must be included in or with an
application for a biodiversity certificate (clause 68);
• specify additional eligibility requirements that must be met before the Regulator
can issue a biodiversity certificate (clause 70);
• specify additional persons who are considered to have an eligible interest in an
area of land (clauses 89 - 90);
• specify requirements for biodiversity project reports (clauses 102 to 104);
• specify additional notification requirements for project proponents (clause 114);
• prescribe circumstances where there is taken to be a reversal of the biodiversity
outcome to which the registered biodiversity project relates, and whether that
reversal is taken to be significant or not (clause 148);
• specify kinds of information for which a person can request the Regulator to not
include in the Register (clause 163A);
• specific additional information that must be set out in the Register for a registered
biodiversity project (clause 164);
• make provision for and in relation to the Register (clauses 165 and 167);
• specify record keeping requirements for project proponents (clauses 179 - 181);
• prescribe additional functions of the Nature Repair Market Committee (clause
195)
213
• prescribe additional reviewable decisions (clause 212).
1259. It is appropriate that these matters be prescribed in rules rather than set out in the Bill
itself as it allows the Minister flexibility to adapt decision-making processes under the
Bill to take account of changes in scientific understanding and technology, as well as
providing the ability to differentiate (where appropriate) between projects dealing with
different activities, different kinds of biodiversity and where different levels of
protection or restoration are required to achieve an appropriate biodiversity outcome.
For instance, it may be appropriate for the Regulator to impose different conditions that
must be satisfied to be issued a biodiversity certificate for projects in marine areas
versus particular kinds of land, or where the intended biodiversity outcome is to protect
existing biodiversity compared to the restoration of degraded biodiversity.
1260. The rules would be subject to ordinary Parliamentary scrutiny processes, including
disallowance and sunsetting requirements.
1261. Subclause 237(2) would preclude the rules from creating an offence or civil penalty,
or from providing powers of arrest or detention or powers of entry, search or seizure.
Further, the rules would not be able to impose a tax, set an amount to be appropriated
from the Consolidated Revenue Fund or directly amend the text of the Bill.
1262. Subclause 237(3) would override subsection 14(2) of the Legislation Act by allowing
the Minister to make rules applying, adopting or incorporating any written material
(with or without modification) as in force or existing from time to time. This is
considered appropriate because the types of materials that are likely to be incorporated
by reference in the rules include international agreements or relevant standards that
apply to biodiversity (or specific types of biodiversity) which may be amended or
updated from time to time. This would enable the rules to incorporate such agreements
or standards as existing from time to time, which will require (or allow) the Minister to
have regard to the most up to date version of the document without the need to amend
the rules to reflect an update in those international agreement or standards. This
approach will provide confidence in the biodiversity market without compromising
environmental standards, as it ensures that the most up to date information will be
considered by the Minister or the Regulator (as the case may be). This will, in turn, help
to ensure that the requirements in the rules are appropriate and fit for purpose.
1263. In allowing for the adoption non-legislative instruments as existing from time to time,
consideration has been given to the fundamental principle of the Legislation Act, and of
access to justice, that people are easily able to understand their rights and obligations at
law. It is intended that any document incorporated by reference in the rules will be
either made available on, or be accessible through, the Department's or the Regulator's
website (as appropriate).
1264. Additionally, in order to comply with paragraph 15J(2)(c) of the Legislation Act, the
explanatory statements for the rules will contain a description of the relevant
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incorporated material and indicate how it may be obtained. This will include details of
where the list of the incorporated documents will be published.
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ATTACHMENT A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Nature Repair Market Bill 2023
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of Human Rights (Parliamentary Scrutiny) Act
2011.
Overview of the Bill
The Nature Repair Market Bill 2023 (the Bill) would provide a framework for a voluntary
national market that delivers improved biodiversity outcomes. Eligible landholders who
undertake projects that enhance or protect biodiversity can receive a tradeable certificate that
will be tracked through a national register. This framework will facilitate private investment
in biodiversity, including where carbon storage projects have biodiversity co-benefits.
The nature repair market would be based on science and enable Aboriginal persons and
Torres Strait Islanders to promote their unique knowledge, on their terms. Establishing the
market in legislation would ensure its ongoing integrity, encourage investment in nature, and
drive environmental improvements across Australia.
The Bill would:
• create a nationally consistent framework to describe and measure biodiversity
outcomes;
• enable biodiversity certificates describing biodiversity projects to be purchased,
transferred, claimed, used and publicly tracked. Under the framework each project
would be awarded one certificate. Consistent verifiable information on certificates
would allow purchasers to make informed decisions about the value of projects and
biodiversity outcomes;
• encourage participation in the market by all persons, including Aboriginal and Torres
Strait Islanders.
• provide requirements to obtain consent from native title holders to carry out
biodiversity projects under the Bill on such areas (land or waters). This would ensure
that native title holders have the final say on whether, and what kind of, biodiversity
projects are carried out on or in native title areas, and would promote the engagement
and cooperation of Aboriginal and Torres Strait Islander persons in the enhancement
or protection of biodiversity in native species in Australia.
• establish project assurance and compliance systems to provide certainty to the market.
This would include providing appropriate and effective integrity measures that would
ensure that the scheme under the Bill only rewards genuine and verifiable biodiversity
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protection or enhancement (including by requiring additionality) - so that certificates
are only issued for biodiversity protection or enhancement that would not normally
have occurred and, therefore, provides a genuine environmental benefit.
• establish the Nature Repair Market Committee, which would consist of independent
exports to, among other functions, advise and provide recommendations to the
Minister on the development of methodology determinations. Methodology
determinations would set requirements on how registered biodiversity projects are to
be carried out. This would include requirements relating to activities to be carried out
in the project area, and conditions to be met for a biodiversity certificate to be issued
The Minister would only be able to make or vary a methodology determination if the
Committee has first advised that the proposed determination (or variation) complies
with the biodiversity integrity standards.
• establish a public register of all registered biodiversity projects.
The Bill is also designed to draw upon, support and give effect to Australia's international
obligations under the United Nations Convention on Biological Diversity (Biodiversity
Convention). It will provide incentives for the enhancement or protection of Australia's
unique flora and fauna, with the aim of preserving Australia's endemic biodiversity for future
generations.
Assessment of Compatibility with Human Rights
The Bill engages the following rights:
• the right to a fair hearing and criminal process rights under Article 14 of the
International Covenant on Civil and Political Rights (the ICCPR);
• the right to freedom of expression under Article 19 of the ICCPR;
• the prohibition on arbitrary interference with privacy under Article 17 of the ICCPR;
• the rights of equality and to non-discrimination under Articles 2, 16 and 26 of the
ICCPR;
• the right to enjoy and benefit from culture under Article 15 of the International
Covenant on Economic, Social and Cultural Rights (ICESCR).
Right to a fair hearing (Article 14 of the ICCPR)
The right to a fair hearing and equality before the courts contained in Article 14 of the ICCPR
applies to criminal and civil proceedings, and in cases before both courts and tribunals.
Article 14 provides that, in the determination of any criminal charge against the person, or of
their rights and obligations in a suit of law, everyone shall be entitled to a fair and public
hearing by a competent, independent, and impartial tribunal established by law.
Civil penalty provisions
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The Bill provides for several new civil penalty provisions where a person has contravened
certain requirements. The civil penalty provisions are as follows:
• subclause 46(1);
• subclause 46(2);
• subclause 102(4);
• subclause 104(9);
• subclause 104A(3);
• subclause 105(3);
• subclause 106(2);
• subclause 107(2);
• subclause 108(2);
• subclause 109(2);
• subclause 110(2);
• subclause 112(3);
• subclause 113(1);
• subclause 113(3);
• subclause 114(3);
• subclause 116(4);
• subclause 121(4);
• subclause 121(7);
• subclause 122(3);
• subclause 126(1);
• subclause 150(5);
• clause 155;
• subclause 167(4);
• subclause 168(3);
• subclause 179(2);
• subclause 180(3);
• subclause 181(2);
• subclause 182(2).
Part 4 of the Regulatory Powers Act, as applied to this Bill by clause 189, sets out the
procedure by which civil proceedings are heard in relation to contraventions of civil penalty
provisions. The person would be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law. The civil penalty provisions therefore
do not limit the right to a fair hearing contained in Article 14 of the ICCPR.
Infringement notices
Clause 190 of the Bill would apply the standard infringement notice provisions in Part 5 of
the Regulatory Powers Act to the civil penalty provisions of the Bill. An infringement notice
issued under Part 5 of the Regulatory Powers Act is a notice of a pecuniary penalty imposed
on a person. It sets out the particulars of an alleged contravention of a law. An infringement
notice gives the person to whom the notice is issued the option of paying the penalty set out
in the notice or electing to have the matter dealt with by a court.
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There are no criminal consequences associated with infringement notices for civil penalty
provisions. For example, they do not carry the possibility of imprisonment if the person does
not pay the penalty or attend court.
Section 104 of the Regulatory Powers Act provides that an infringement notice is required to
state that the person may choose not to pay the penalty and if they do so, proceedings seeking
a civil penalty order may be brought against them in a court. Accordingly, the person must
always be advised of the consequences of not paying the penalty, and of their right to have
the matter dealt with by a court. As the person may elect to have the matter heard by a court,
rather than pay the penalty, the right to a fair hearing provided for by Article 14(1) of
the ICCPR is not limited.
Enforceable undertakings
Clause 191 of the Bill would apply the enforceable undertakings provisions in Part 6 of the
Regulatory Powers Act to the offence and civil penalty provisions of the Bill, as well as
offence provisions of the Crimes Act or the Criminal Code to the extent that it relates to the
Bill. The Chair of the Regulator will be able to accept and enforce undertakings relating to
compliance with these provisions. Further, if the Chair of the Regulator is satisfied that
a person has breached an undertaking, the Chair may apply to a relevant court for an order
relating to the undertaking.
As an order enforcing the undertaking can only be made by a relevant court under section 115
of the Regulatory Powers Act, the right to a fair hearing provided for by Article 14(1) of
the ICCPR is not limited.
Injunctions
Clause 192 of the Bill would apply the injunctions provisions in Part 7 of the Regulatory
Powers Act to the provisions of the Bill. This means the Chair of the Regulator would be able
to apply to a relevant court for an injunction to restrain a person from engaging in conduct
that would breach the Bill, or requiring that person to do a thing they are required to do under
the Bill. Further, the Chair may apply to a relevant court for an interim injunction.
As an injunction can only be granted by a relevant court under section 121 of the Regulatory
Powers Act, the right to a fair hearing provided for by Article 14(1) of the ICCPR is not
limited.
Summary
The Bill is compatible with the right to a fair hearing provided for by Article 14 of the ICCPR
because, to the extent that it engages those rights, it does not limit those rights.
Criminal process rights (Article 14 of the ICCPR)
Article 14 of the ICCPR contains criminal process rights, including the right to the
presumption of innocence (Article 14(2)) and minimum guarantees in criminal proceedings
(Articles 14(3) and (5) to (7)). Relevantly, this includes the right to communicate with legal
counsel (Article 14(3)(b)), the right to be free from self-incrimination (Article 14(3)(g)), and
the right not to be tried or punished again for an offence for which a person has already been
finally acquitted or convicted (prohibition on double jeopardy) (Article 14(7)).
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Civil penalty provisions
The Bill provides for the following new civil penalty provisions, and the following maximum
civil penalty amounts:
• subclause 46(1) - 2,000 penalty units;
• subclause 46(2) - 2,000 penalty units;
• subclause 102(4) - 200 penalty units;
• subclause 104(9) - 200 penalty units;
• subclause 104A(3) - 200 penalty units;
• subclause 105(3) - 200 penalty units;
• subclause 106(2) - 200 penalty units;
• subclause 107(2) - 60 penalty units;
• subclause 108(2) - 60 penalty units;
• subclause 109(2) - 200 penalty units;
• subclause 110(2) - 200 penalty units;
• subclause 112(3) - 200 penalty units;
• subclause 113(1) - 60 penalty units;
• subclause 113(3) - 60 penalty units;
• subclause 114(3) - 60 penalty units;
• subclause 116(4) - 60 penalty units;
• subclause 121(4) - 60 penalty units;
• subclause 121(7) - 200 penalty units;
• subclause 122(3) - 60 penalty units;
• subclause 126(1) - 120 penalty units;
• subclause 150(5) - the greater of 2,000 penalty units and twice the market value of the
biodiversity certificate as determined by the court;
• clause 155 - 2,000 penalty units;
• subclause 167(4) - 200 penalty units;
• subclause 168(3) - 200 penalty units;
• subclause 179(2) - 200 penalty units;
• subclause 180(3) - 200 penalty units;
• subclause 181(2) - 200 penalty units;
• subclause 182(2) - 200 penalty units.
As discussed in the Guidance Note 2: Offence provisions, civil penalties and human rights
published by the Parliamentary Joint Committee on Human Rights, civil penalty provisions
may engage criminal process rights under Articles 14 of the ICCPR, regardless of the
distinction between criminal and civil penalties in domestic law. When a provision imposes
a civil penalty, an assessment is required as to whether it amounts to a criminal penalty for
the purposes of Article 14 of the ICCPR.
Determining whether penalties could be considered as criminal penalties under international
human rights law requires consideration of the classification of the penalty provisions under
Australian domestic law, the nature and purpose of the penalties, and the severity of the
penalties.
The civil penalty provisions in the Bill expressly classify the penalties as civil penalties.
Those provisions create solely pecuniary penalties in the form of a debt payable to the
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Commonwealth. The purpose of these penalties is to encourage compliance with the
requirements under the Bill to provide for the effective operation of the scheme. The civil
penalty provisions would not impose criminal liability and a finding by a court that they have
been contravened would not lead to the creation of a criminal record. The civil penalties
would only apply to project proponents and other persons participating in the scheme, rather
than the public in general. Such persons will be reasonably expected to be aware of their
obligations under the Bill and will have voluntarily sought the approval of the
Commonwealth to engage in an activity that is regulated under very clear conditions.
The maximum penalties that may be imposed under the Bill as a civil penalty are generally
between 60 and 2,000 penalty units. Where the penalties are higher, this reflects the more
serious implications or results of the contravention. Under paragraph 82(5)(a) of the
Regulatory Powers Act, as applied to this Bill by clause 189, the maximum penalties that
apply to individuals would be those specified in the civil penalty provisions of the Bill. The
application of subsection 82(5) to the civil penalties under the Bill means that the corporate
multiplier will apply to bodies corporate (other than for subclause 150(7)). A court may
therefore (other than for subclause 150(7)) set the penalties payable by such entities at no
more than five times the penalty specified in the civil penalty provision, which would
generally result in a maximum penalty of between 300 and 10,000 penalty units.
The pecuniary penalties for the civil penalty provisions in the Bill have been set by reference
to the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement
Powers. They seek to reflect the seriousness of the contravening conduct to the operation and
integrity of the scheme, as well as the threat that is posed to biodiversity outcomes. Higher
penalties are proposed for contraventions involving aggravated circumstances. For instance,
the pecuniary penalty in subclause 150(7) provides for a maximum penalty of the greater of
2,000 penalty units and twice the market value of the biodiversity certificate as determined by
the court, for non-compliance with a relinquishment notice. This is necessary as substantial
penalties are required to provide an adequate deterrent against non-compliance with
relinquishment requirements. There are significant financial gains that could be made from
contravening requirements under the scheme and without such strong deterrence the scheme
could be undermined.
There would also be continuing civil penalty provisions for the purposes of section 93 of the
Regulatory Powers Act. Section 93 of the Regulatory Powers Act provides that if an act or
thing is required under a civil penalty provision to be done within a particular period or
before a particular time, then the obligation to do that act or thing continues until the act or
thing is done (even if the period has expired or the time has passed). A person who
contravenes a continuing civil penalty provision commits a separate contravention of that
provision in respect of each day during which the contravention occurs (including the day the
relevant civil penalty order is made or any later day). Part 9 of the Bill would set out various
requirements for a person to provide relevant information to the Regulator within a certain
period or by a certain date. Under these provisions, the maximum civil penalty that a court
may order a person who is an individual to pay for each day that the contravention of the
relevant requirement continues would be 5% of the maximum civil penalty that could be
imposed. Given the importance of ensuring that the information is provided to the Regulator
in a timely manner, it is appropriate for a continuing civil penalty provision to apply,
calculated by reference to each day that the relevant requirement is contravened.
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The proposed application of the standard provisions in Part 4 of the Regulatory Powers Act
by clause 189 of the Bill means section 85 of the Regulatory Powers Act will apply to the
proposed civil penalty provisions in the Bill. Section 85 of the Regulatory Powers Act
provides that a relevant court may make a single civil penalty order against a person for
multiple contraventions of a civil penalty provision if proceedings for the contraventions are
founded on the same facts, or if the contraventions form, or are part of, a series of
contraventions of the same or a similar character. However, the penalty must not exceed the
sum of the maximum penalties that could be ordered if a separate penalty were ordered for
each of the contraventions. There are no criminal consequences associated with civil penalty
orders for multiple contraventions; for example, they do not carry the possibility of
imprisonment. As such, these civil penalties are not sufficiently severe that they could be
considered as criminal penalties.
The above factors indicate that the civil penalties imposed by the Bill are civil rather than
criminal in nature. Accordingly, the criminal process rights provided for by Article 14 of
the ICCPR are not engaged by the proposed civil penalty provisions in the Bill.
Right to the presumption of innocence (Article 14(2) of the ICCPR)
Article 14(2) of the ICCPR provides for the right to the presumption of innocence, that
everyone charged with a criminal offence shall have the right to be presumed innocent until
proved guilty according to law. The right to presumption of innocence is also a fundamental
common law principle.
Laws which shift the burden of proof to a defendant, commonly known as 'reverse burden
provisions', can be considered a limitation of the presumption of innocence. This is because
a defendant's failure to discharge a burden of proof or prove an absence of fault may permit
their conviction despite reasonable doubt as to their guilt. This includes where an evidential
or legal burden of proof is placed on a defendant.
When a defendant bears an evidential burden in relation to an exception it means the
defendant bears the burden of adducing or pointing to evidence that suggests a reasonable
possibility that the exception has been met. It is then up to the prosecution to establish this
exception does not apply. This can be justified in circumstances where the facts in question
are peculiarly within the knowledge of the defendant.
Reverse burden offences will not necessarily be inconsistent with the presumption of
innocence provided that the reverse burden pursues a legitimate objective and is reasonable,
necessary and proportionate to achieving that objective. Whether a reverse burden provision
impermissibly limits the right to the presumption of innocence will depend on the
circumstances of the case and the justification for the reverse burden.
The Guide to Framing Commonwealth Offences notes that placing the burden on the
defendant should be limited to circumstances where the matter is peculiarly within the
knowledge of the defendant and where it is significantly more difficult and costly for the
prosecution to disprove than for the defendant to establish the matter. The Guide to Framing
Commonwealth Offences also notes that a reverse burden provision is more readily justified
if the matter in question is not central to the question of culpability for the offence, the
penalties are at the lower end of the scale, and the conduct proscribed by the offence poses
a grave danger to public health or safety.
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Under subclause 46(2), a project proponent of the registered biodiversity project would be
liable to a civil penalty, where a biodiversity certificate has been issued in respect of the
project and any person carries out an activity that is prohibited from being carried out by the
methodology determination that covers the project. There is an exception to this civil penalty
if the project proponent has taken all reasonable steps to ensure that the prohibited activity is
not carried out in the project area.
The note to this subclause would explain that the defendant bears an evidential burden to
show that the project proponent has taken all reasonable steps to ensure the prohibited
activity is not carried out in the project area. The reversal is justified in this instance, as the
matter to be proved (that is, whether the respondent has taken all reasonable steps) is a matter
that would be peculiarly in the knowledge of the respondent. This is also consistent with the
approach taken in section 96 of the Regulatory Powers Act, which provides that a person who
wishes to rely on an exception to avoid liability for contravention of a civil penalty provision
would bear the evidential burden for proof of that exception. In the event of an application for
a civil penalty order, it would be significantly more difficult and costly for the appellant to
disprove all possible circumstances than it would be for a respondent to establish the
existence of one potential circumstance. Further, the activities that are prohibited by the
methodology determination would be likely to pose a material adverse risk to the biodiversity
outcomes of the project, and it would be expected that a project proponent, as a voluntary
participant of the scheme, would be able to take reasonable steps to ensure that those
prohibited activities are not carried out.
Subclause 126(2) would provide that the prohibition on use or disclosure of protected audit
information in subclause 126(1) does not apply if the use or disclosure is authorised by a
provision of Part 11 of the Bill, or authorised or required by a law of the Commonwealth or a
prescribed law of a State or Territory.
The note to this subclause would explain that the defendant bears an evidential burden to
show that the use or disclosure of information was authorised. The reversal of the burden of
proof is justified in this instance, as the matter to be proved (that is, that the use of disclosure
of protected audit information was authorised or required by a Commonwealth law or a
prescribed State or Territory law) is a matter that would be peculiarly in the knowledge of the
defendant. Further, there would be a number of authorised uses and disclosures set out in
Subdivision C of Division 3 of Part 11 (clauses 127 to 138) that would apply to an audit team
leader or a person assisting an audit team leader. In the event of civil proceedings, it would be
significantly more difficult and costly to disprove all possible circumstances than it would be
for a defendant to establish the existence of one potential circumstance. Consequently, in
order to effectively protect information under clause 126, it is reasonable, necessary and
proportionate to reverse the burden of proof and limit the right to the presumption of
innocence.
Subclause 168(1) would allow the rules to provide that a person must not use information to
contact or send material to another person if that information is about the other person, and
was obtained from the Register. Subclause 168(2) would allow the rules to provide that a
person must not disclose information that was obtained from the Register and is about
another person if they know the information is likely to be used to contact or send material to
the other person.
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The effect of subclause 168(3) would be to make failure to comply with rules made for the
purpose of subclause 168(1) or (2) a contravention of a civil penalty provision. Subclause
168(4) would provide an exception to civil penalty provisions. It would have the effect of
allowing the rules to also prescribe circumstances in which a prohibition in rules made for the
purposes of subclauses 168(1) and (2) would not apply.
The note following subclause 168(4) would explain that the defendant bears an evidential
burden in relation to showing that they used or disclosed information obtained from the
Register about a person in circumstances covered by rules made for the purposes of subclause
168(4). This is because section 96 of the Regulatory Powers Act provides that if a defendant
wishes to rely on an exception to a civil penalty provision, the defendant bears an evidential
burden of proof in relation to that matter. This is appropriate on the basis that knowledge of
that matter would be peculiar to that person. In this case, it is appropriate that the defendant
bear the evidential burden, as whether the circumstances in which they used or disclosed
information obtained from the Register is a matter that is peculiarly within the knowledge of
that person.
Therefore, in these circumstances, it is reasonable, necessary, and proportionate to reverse the
burden of proof and limit the right to the presumption of innocence under Article 14(2) of the
ICCPR.
Right to communicate with legal counsel (Article 14(3)(b) of the ICCPR)
Article 14(3)(b) of the ICCPR provides for the right of a person, in the determination of
a criminal charge, to have adequate time and facilities to communicate with counsel of his
own choosing. This means that the person should have the opportunity to be represented by
a lawyer and to communicate with the lawyer in an unrestricted way in conditions that allow
for confidentiality.
Clause 226 would expressly provide that the Bill does not affect the law regarding legal
professional privilege. Legal professional privilege may be availed of by a person to resist the
giving of information or the production of documents which would reveal communications
between a client and their lawyer made for the dominant purpose of giving or obtaining legal
advice or the provision of legal services, including representation in legal proceedings.
Clause 226 makes it clear that legal professional privilege would not be abrogated by
operation of any provisions of the Bill.
In addition, clauses 185 to 188 would trigger the monitoring and investigation powers under
Parts 2 and 3 of the Regulatory Powers Act. Subclauses 17(2) and 47(2) of the Regulatory
Powers Act make it clear that the privilege against legal professional privilege has not been
abrogated by the monitoring and investigation powers provisions.
For the above reasons, the Bill does not limit the right to communicate with legal counsel
under Article 14(3)(b).
Right to freedom from self-incrimination (Article 14(3)(g) of the ICCPR)
Article 14(3)(g) of the ICCPR protects the right to freedom from self-incrimination in the
determination of a criminal charge by providing that a person may not be compelled to testify
against him or herself or confess guilt. The common law also recognises the privilege against
self-incrimination which applies unless expressly or impliedly overridden by statute.
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Part 10 of the Bill provides for certain information-gathering powers that may be exercised
by the Regulator. Clause 116 would allow the Regulator to require a person to give
information or produce documents or copies of documents. A person who fails to comply
with a requirement would be liable to a civil penalty. The provisions in Part 10 are not
intended to abrogate the privilege against self-incrimination.
As noted above, clauses 185 to 188 of the Bill would have the effect of triggering the
monitoring and investigation powers under Parts 2 and 3 of the Regulatory Powers Act.
Under subsection 24(3) of the Regulatory Powers Act, where entry is authorised by
a monitoring warrant, the authorised person may require any person on the premises to
answer questions or produce documents relating to information or provisions subject to
monitoring. If the person fails to do so, this is an offence under subsection 24(5) of the
Regulatory Powers Act. Similarly, under subsection 54(3) of the Regulatory Powers Act an
authorised person who enters premises under an investigation warrant may require persons on
the premises to answer questions or produce documents relating to evidential material of the
kind specified in the warrant. If the person fails to do so, this is an offence under
subsection 54(5) of the Regulatory Powers Act.
Subclauses 17(1) and 47(1) of the Regulatory Powers Act make it clear that the privilege
against self-incrimination is not abrogated by the monitoring and investigation powers
provisions, including the offence provisions.
For the above reasons, the Bill does not limit the right to freedom from self-incrimination
under Article 14(3)(g) of the ICCPR.
Right not to be tried or punished again for an offence for which a person has already been
finally acquitted or convicted (prohibition on double jeopardy) (Article 14(7) of the ICCPR)
Article 14(7) of the ICCPR prohibits an individual from being liable to be tried or punished
again for an offence for which they have already been finally convicted or acquitted in
accordance with the law and penal procedure of each country. This prohibition on double
jeopardy is also a fundamental safeguard in the common law of Australia. It means that a
person who has been convicted or acquitted of a criminal charge is not to be re-tried for the
same or substantially the same offence.
There would be no criminal offences in the Bill. Rather, there would civil penalty provisions
only. However, conduct engaged in under the Bill could potentially be used as the basis for
criminal proceedings under the Criminal Code or the Regulatory Powers Act.
Division 3 of Part 4 of the Regulatory Powers Act, as applied to this Bill by clause 189, sets
out the relationship between criminal and civil penalty proceedings.
Section 90 of the Regulatory Powers Act provides that criminal proceedings may be
commenced against a person for conduct that is the same, or substantially the same, as
conduct that would constitute a contravention of a civil penalty provision, regardless of
whether a civil penalty order has been made against the person in relation to the
contravention. This section recognises the importance of criminal proceedings and criminal
penalties in sanctioning contraventions of a triggering Act (i.e., an Act that seeks to apply the
standard provisions of the Regulatory Powers Act), and ensures criminal remedies are not
precluded by earlier civil action.
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As section 90 of the Regulatory Powers Act permits both civil and criminal proceedings, but
not multiple criminal proceedings for the same conduct, Article 14(7) of the ICCPR is not
infringed. Further, section 88 of the Regulatory Powers Act provides that a court cannot make
a civil penalty order against a person for a contravention of a civil penalty provision if the
person has been convicted of an offence constituted by conduct that is the same, or
substantially the same, as the conduct constituting the contravention.
Section 91 of the Regulatory Powers Act provides that evidence of information given, or
evidence of the production of documents, by an individual is not admissible in criminal
proceedings against the individual if:
• the individual previously gave the information or produced the documents in
proceedings for a civil penalty order against the individual for an alleged
contravention of a civil penalty provision (whether or not the order was made); and
• the conduct alleged to constitute the offence is the same, or substantially the same, as
the conduct alleged to constitute the contravention.
Section 91 of the Regulatory Powers Act ensures that information or documents produced
during civil proceedings are not relied upon to support subsequent criminal proceedings,
unless those proceedings are criminal proceedings relating to falsifying evidence in civil
proceedings.
Accordingly, these provisions engage, but do not limit, the prohibition on double jeopardy in
Article 14(7) of the ICCPR.
Summary of Article 14 assessment
The Bill is compatible with the criminal process rights provided for by Article 14 of
the ICCPR because, to the extent that it limits those rights, the limitations are reasonable and
proportionate to a legitimate objective.
Right to freedom of expression (Article 19(2) of the ICCPR)
Article 19(2) of the ICCPR protects the right to freedom of expression, and provides that this
right shall include freedom to seek, receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in print, in the form of art, or through any
other media of choice.
Article 19(3) provides that the right to freedom of expression may be subject to certain
restrictions, where such restrictions are necessary for the respect of the rights of others or for
the protection of national security or public order or of public health or morals. Any such
restrictions must be prescribed by law and be reasonable, necessary and proportionate to
achieving a legitimate objective.
Clause 126 of the Bill would set out a general prohibition on the use or disclosure of
protected audit information by a person who is or has been an audit team leader or a person
assisting an audit team leader and who obtained the protected audit information in his or her
capacity as an audit team leader or person assisting an audit team leader.
Under clause 125, information would be protected audit information only if the information
was audit information and the disclosure of the information could reasonably be expected to:
226
• substantially prejudice the commercial interests of a person;
• found an action by a person other than the Commonwealth for a breach of a duty
of confidence;
• prejudice the prevention, detection, investigation, prosecution or punishment of
one or more offences;
• endanger a person's life or physical safety;
• prejudice the protection of public safety or the environment.
The prohibition in clause 126 would be limited to persons who are audit team leaders or who
are assisting an audit team leader. As such, the prohibition would not apply to the public at
large. In addition, the combined effect of clauses 125 and 126 would only restrict the right to
freedom of expression if one or more of the circumstances set out above are satisfied. These
circumstances directly relate to the objectives set out in Article 19(3), including the rights of
others (such as persons who submitted the information in confidence), national security and
international relations, public order and public health.
The prohibition will not apply if the use or disclosure is authorised by the Bill, another
Commonwealth law or a prescribed State or Territory law. The statutory authorisations set
out in Subdivision C of Division 3 of Part 11 of the Bill (clauses 127 to 138) would allow for
the legitimate disclosure of protected audit information in a number of circumstances,
including with consent, to reduce a serious risk to human health or the environment, or in the
performance of the person's functions or powers under the Bill. The Bill would also provide
for disclosure to the Minister, or to the Secretary where the disclosure is likely to assist in the
performance of functions, or the exercise of powers, under the Bill.
For these reasons, the prohibition in clause 126 is reasonable, necessary and proportionate to
achieving a legitimate objective, and is consistent with the right to freedom of expression in
Article 19(2) of the ICCPR.
Prohibition on arbitrary interference with privacy (Article 17 of the ICCPR)
Article 17 of the ICCPR prohibits arbitrary or unlawful interference with an individual's
privacy, family, home, or correspondence, and protects a person's honour and reputation
from unlawful attacks. The prohibition on arbitrary interference with privacy can be limited
to achieve a legitimate objective where the limitations are lawful and not arbitrary. For an
interference with this prohibition to be permissible, the interference must be authorised by
law, be for a reason consistent with the ICCPR and be reasonable in the circumstances - that
is, any interference with privacy must be proportionate to a legitimate end and be necessary
in the circumstances.
Monitoring and investigation powers
New clauses 185 to 188 would trigger the monitoring and investigation powers that are
provided for in the Regulatory Powers Act, including powers relating to entry, inspection,
search and seizure. The monitoring and investigation powers are necessary for the legitimate
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purpose of enabling the monitoring of compliance with the Bill and the collection of
evidential material relating to contraventions of the Bill. The use of these powers is
constrained, ensuring that their use is not arbitrary, as follows:
• the powers cannot be exercised without consent being given to the entry to the
premises, or under warrant granted by an issuing officer. Where entry is by the
consent of the occupier, consent must be informed and voluntary, and can be
withdrawn at any time;
• monitoring and investigation warrants can only be issued where the issuing officer is
satisfied of certain matters, by information on oath or affirmation, of an inspector;
• an inspector cannot enter premises under warrant unless their identity card is shown to
the occupier of the premises and they provide the occupier with a copy of the warrant,
unless immediate entry to the premises is required to prevent serious damage to the
environment.
In summary, the monitoring and investigation powers are necessary, proportionate and
reasonable in the pursuance of the legitimate objectives of the Bill.
Audit powers
Clauses 121 and 122 of the Bill would provide for audits to be carried out of a project
proponent's compliance with the Bill by audit team leaders and persons assisting audit team
leaders. These powers are important to ensure the Bill is effective at achieving its objects and
so non-compliance can be identified early if possible and acted on swiftly.
Under clauses 121 and 122 a person would be required to provide the audit team leader, and
any persons assisting the audit team leader, with all reasonable facilities and assistance
necessary for the effective exercise of the audit team leader's duties under this Bill. This
would include providing information and documents as requested by the audit team leader or
person assisting an audit team leader (under clause 123).
The Bill would also require a project proponent, in certain circumstances, to arrange for an
audit of an application or a biodiversity project report, and to provide a copy of an audit
report to the Regulator (clauses 12, 103 and 104).
However, it is expected that only a very limited amount of such information will be personal
information. A person who is required to provide information will have 'opted in' to the
scheme and should expect that some personal information may need to be provided in order
to gain the benefits of that system. In addition, it is anticipated that most project proponents
would be body corporates, for which the protections in the Privacy Act will not apply.
The Bill would also ensure that providing all reasonable facilities and assistance necessary
would not include requiring a person to allow an audit team leader or a person assisting an
audit team leader to enter premises, to take samples of any thing on premises, or to inspect
any thing on premises. If an audit team leader or person assisting an audit team leader wanted
to enter a person's premises, they would require consent from the person or a warrant under
the Regulatory Powers Act.
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In summary, the audit powers are necessary, proportionate and reasonable in the pursuance of
the legitimate objectives of the Bill.
Collection, use and disclosure of information
The Bill contains provisions that would:
• require a person to provide information in an application;
• require a person to provide further information in relation to their application;
• require a person to comply with certain reporting and notification requirements;
• give the Regulator the power to require information or documents.
By requiring persons to provide information or documents, the Bill may incidentally require
the provision of personal information. The collection, use and disclosure of personal
information may therefore engage the prohibition on arbitrary interference with privacy.
These provisions of the Bill are necessary for the legitimate objective of assessing the
suitability of a person to participate in the nature repair market and to ensure those persons
are continuing to comply with requirements under the Bill. The Regulator will require access
to this information to properly assess whether to register a biodiversity project or issue a
biodiversity certificate. They will also need ongoing and up-to-date information once a
biodiversity certificate is issued, to ensure that the project proponent is complying with their
statutory obligations.
A person who provides information in an application will voluntarily participate in the
regulatory system. Guidance from the Parliamentary Joint Committee on Human Rights
indicates that whether a person has a reasonable expectation of privacy in the circumstances
is relevant to the issue of determining whether a provision is permissible. A person who has
voluntarily entered the nature repair market should expect that a certain amount of personal
information will need to be provided to the Regulator, and to any audit teams that assess
compliance with the Bill, to obtain the benefits of that system.
The interference with privacy is not arbitrary in these circumstances because the information
the person needs to provide will be set out in the Bill and any rules made under the Bill. The
information a person will need to provide may include information about their biodiversity
project. For example, a person may need to provide maps of the proposed project area before
a biodiversity project in respect of that area of land can be approved. A person who has
voluntarily entered the regulatory system should be aware that they will have to provide this
kind of information when they voluntarily decide to participate in the scheme.
It is also intended, to the extent that any information collected is personal information within
the meaning of the Privacy Act 1988 (Privacy Act), that the powers and functions in the Bill
will be required to be exercised in compliance with that Act. The Privacy Act regulates the
collection, storage, use, disclosure, and publication of personal information. It should also be
noted that it is anticipated that many project proponents will be body corporates, for which
the protections in the Privacy Act will not apply.
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On this basis, to the extent that the provisions in the Bill engage the prohibition on arbitrary
interference with privacy under Article 17 of the ICCPR, this limitation is necessary,
proportionate, and reasonable to achieve the legitimate objectives of the Bill.
Use and disclosure of audit information
Subdivision C of Division 3 of Part 11 of the Bill would set out a number of authorised uses
and disclosures for audit information (including protected audit information). Examples of
such circumstances include disclosure with consent, disclosure to reduce a serious risk to
human health or the environment, use or disclosure or in the performance of the person's
functions or powers under the Bill, disclosure to the Minister and disclosure to the Secretary
where the disclosure is likely to assist in the performance of functions, or the exercise of
powers, under the Bill.
These circumstances are clearly defined and are generally aimed at either assisting with the
effective operation and enforcement of the Act, public interest matters where there is a high
bar to satisfy, or instances where there is no justifiable reason to prevent use or disclosure of
information.
Therefore, and noting that many project proponents will be body corporates for which the
protections in the Privacy Act will not apply, this limitation to the right to privacy is
reasonable, necessary and proportionate to achieve legitimate objectives and is consistent
with the right to privacy in Article 17 of the ICCPR.
Publication of information
Part 16 of the Bill provides for the publication of information about the operation of the
scheme:
• clause 171 would require the Regulator to publish certain information on its website
after a biodiversity certificate is issued, varied, or transferred to another account. This
includes the name of the person to which the certificate, or varied certificate, was
issued, as well as the names of the account holders that were involved in the transfer
of the certificate.
• clauses 176 and 177 would require the Regulator to publish certain information
regarding any decisions made to require a person to relinquish a biodiversity
certificate (including the status and outcome of any internal reconsideration and
external review relating to such decisions) and publish certain information about
relinquished biodiversity certificates (including the name of the person who
relinquished the certificate). As these provisions would provide for the publication of
certain personal information regarding biodiversity certificates and relinquishment
requirements, these provisions may engage the prohibition on arbitrary interference
with privacy.
Clauses 171, 176 and 177 are necessary to support a legitimate objective of the Bill, which is
to ensure that regular and accurate information is made available to the market about the
issuing, varying and transfer of biodiversity certificates. The publication of information about
the relinquishment of biodiversity certificates would also present a fair and accurate picture
of efforts by project proponents to comply with obligations under the scheme. In addition, the
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information regarding internal reconsideration and external review also enables the Regulator
to be held accountable for the quality of its decision making. The publication of information
is not arbitrary, as the details of the information that must be published on the Regulator's
website are set out in clauses 171, 176 and 177 of the Bill or in rules made under those
provisions, and a person who is participating in the scheme will be able to have a clear
expectation of the personal information that will be published. Together with the safeguards
on the use, disclosure and publication of information set out in the Privacy Act, the
publication of such information on the website is reasonable and proportionate to the
objectives of the Bill.
It is also appropriate for the rules to make provision for information to be published on the
website. This allows the Commonwealth to implement any necessary policy or regulatory
reforms to maintain the relevance of information that is published. The rules would be a
legislative instrument and subject to Parliamentary scrutiny through the disallowance process,
and sunsetting in accordance with the Legislation Act.
On this basis, to the extent that these provisions engage the prohibition on arbitrary
interference with privacy under Article 17 of the ICCPR, this limitation is necessary,
proportionate, and reasonable to achieve the legitimate objectives of the Bill.
Registers
Part 15 of the Bill would provide for the establishment and maintenance of a Register, which
would be made available on the Regulator's website. As the names of the project proponents
for registered biodiversity projects and the holders of biodiversity certificates will be made
available on the Register under clauses 162 and 164, it may engage the prohibition on
arbitrary interference with privacy.
The publication of information on the Register is necessary for the legitimate objective of
ensuring that relevant information is accessible and available to participants in the nature
repair market. This ensures that participants can obtain accurate and up-to-date information
about the status of registered biodiversity projects and biodiversity certificates, and can have
confidence in conducting their business affairs. The publication of information is also not
arbitrary, as the details of the information that must be recorded in entries on the Register are
set out in clauses 162 and 164 of the Bill or in rules made under those provisions. A person
who has opted into the voluntary nature repair market should expect that a certain amount of
personal information about their involvement in a particular biodiversity project will need to
be made available on the Register to other participants in the market. Together with the
safeguards on the use, disclosure and publication of information set out in the Privacy Act,
the publication of information on the Register is also reasonable and proportionate to the
objectives of the Bill.
Under clauses 163 and 163A of the Bill, the Regulator would be able to withhold details of
the project area for a registered biodiversity project, or other information that is of a kind
specified in the rules, from being included in the Register, if requested by a project proponent
and if certain criteria are met. This would be where the Regulator is satisfied that setting out
the information could prejudice the biodiversity of the area, the safety of any person or the
local Aboriginal or Torres Strait Islander community, and that such prejudice would
outweigh the public interest in setting it out.
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In addition, clause 165 would allow the rules to make provision for or in relation to matters to
be recorded in the Register, among other matters. This is necessary to allow the
Commonwealth to implement any necessary policy or regulatory reforms to maintain the
relevance of information recorded in the Register. The rules would be a legislative instrument
and would be subject to Parliamentary scrutiny through the disallowance process, and
sunsetting in accordance with the Legislation Act.
The above considerations indicate that, to the extent that it engages the prohibition on
arbitrary interference with privacy under Article 17 of the ICCPR, the establishment and
maintenance of the Register is necessary, proportionate, and reasonable in the pursuance of
the legitimate objectives of the Bill.
Fit and proper person test
Part 8 of the Bill would set out the fit and proper person test for individuals, corporations,
trusts and non-corporate government bodies. The fit and proper person test would be relevant
to a number of decisions in the Bill, including the decision whether to register a biodiversity
project (clause 15), the decision whether to issue a biodiversity certificate for a registered
biodiversity project (clause 70) and the decision whether to cancel a project's registration
(clause 29). Generally, a person who is a project proponent for a registered biodiversity
project would be required to be a fit and proper person.
Under the fit and proper person test, the Regulator would be required to have regard to
certain matters, including relevant convictions or pecuniary penalty orders, whether the
person is insolvent (or, for a corporation, whether the corporation is under external
administration), whether the person has breached certain relevant legislation (including the
Bill) and whether the person has had certain applications under the Bill previously refused on
the basis that the person was not a fit and proper person. The Regulator would also be able to
take other relevant matters into account, including relevant convictions from overseas.
It is intended that these factors will enable the Regulator to gain a broader understanding of
the compliance history of the person without being restricted to only considering those
matters that resulted in a conviction or pecuniary penalty order. This will enable the
Regulator to make an informed decision as to whether the person is a fit and proper person.
However, to the extent that personal information is collected for the purposes of the fit and
proper person test, as opposed to information about an entity, these provisions may engage
the prohibition on arbitrary interference with privacy.
While criminal record information is sensitive information under the Privacy Act, it is
considered appropriate that the Regulator have regard to relevant convictions of the
individual when determining whether the individual is a fit and proper person for the
purposes of the Bill. This is because knowledge of a person's history of compliance with
relevant Australian laws (and, in some cases, foreign laws) will assist in the Regulator's
assessment of whether the person is likely to comply, or be able to comply, with the
requirements of the Bill, the rules or the methodology determination that covers the project.
This is particularly the case where the convictions stem from offences against Australian
legislation that covers similar subject matter (such as environmental or climate-related
legislation) or deals with dishonest or fraudulent conduct. The criminal record information
obtained by the Regulator for the purposes of undertaking the fit and proper person test will
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be protected information under the Clean Energy Regulator Act 2011 and will be subject to
the prohibition on unauthorised use and disclosure in section 43 of that Act.
It is also intended, to the extent that any information collected is personal information within
the meaning of the Privacy Act, that the powers and functions in the Bill will be required to
be exercised in compliance with that Act. The Privacy Act regulates the collection, storage,
use, disclosure, and publication of personal information. It should also be noted that it is
anticipated that many project proponents will be body corporates, for which the protections in
the Privacy Act will not apply.
In addition, participation in the nature repair market would not be a right; it would be a
privilege, granted by the Commonwealth to suitable persons. A project proponent seeking the
benefit of participation in those markets will do so in the knowledge that they must provide
information that allows the Regulator to assess whether they meet the fit and proper person
test set out under the Bill.
The success of the nature repair market depends on the financial viability and reputation of
the project proponents under the scheme. The fit and proper person test is necessary,
reasonable, and proportionate for the legitimate objective of ensuring that biodiversity
certificates are only issued for registered biodiversity projects where the project proponent is
solvent and capable of meeting the prescribed requirements under the Bill. Given the
potential adverse consequences to the integrity of the market, the Commonwealth needs to be
certain that the persons participating in the scheme will not, through financial or other risks,
compromise the confidence that is placed in biodiversity certificates by the market.
Additional criteria for the fit and proper person test may also be prescribed by the rules. This
is necessary as it will allow the Commonwealth to respond in an appropriate and timely
manner to risks and to implement any necessary regulatory reforms in the future. The rules
would be a legislative instrument and subject to Parliamentary scrutiny through the
disallowance process, and sunsetting in accordance with the Legislation Act. Another
important safeguard is that the rules relating to the fit and proper person test will not affect
the operation of Part VIIIC of the Crimes Act regarding the disclosure and consideration of
spent convictions. This means that, in certain circumstances, the person does not need to
disclose spent convictions and persons who are aware of the spent convictions must disregard
the convictions.
On this basis, to the extent that the fit and proper person test limits the prohibition on
arbitrary interference with privacy under Article 17 of the ICCPR, this limitation is
necessary, proportionate, and reasonable to achieve the legitimate objectives of the Bill.
Rights of equality and to non-discrimination (Articles 2, 16 and 26 of the ICCPR)
Articles 2, 16 and 26 of the ICCPR provide for the right to equality and non-discrimination.
This means that laws, policies, and programs should not be discriminatory, and should not be
applied or enforced in a discriminatory or arbitrary manner. It also ensures that no one is
denied their rights because of factors such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, or birth.
Clause 233 would provide that the Bill will not affect the operation of the Racial
Discrimination Act 1975. That Act sets out several prohibited grounds for discrimination.
It provides that it is unlawful to do any act involving a distinction, exclusion, restriction, or
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preference based on race, colour, descent or national or ethnic origin which has the purpose
or effect of nullifying or impairing the recognition, enjoyment, or exercise, on an equal
footing, of any human right or fundamental freedom in the political, economic, social,
cultural, or any other field of public life.
For this reason, the Bill is consistent with and promotes the right to equality and non-
discrimination under Articles 2, 16 and 26 of the ICCPR.
Right to enjoy and benefit from culture (Article 15 of the ICESCR)
Article 15 of ICESCR protects the right of all persons to take part in cultural life. The United
Nations Committee on Economic, Social and Cultural Rights (General Comment 21, 2009)
has stated that culture encompasses: 'ways of life, language, oral and written literature, music
and song, non-verbal communication, religion or belief systems, rites and ceremonies, sport
and games, methods of production or technology, natural and man-made environments, food,
clothing and shelter and the arts, customs and traditions'.
The Committee has stated that cultural rights may be exercised by a person as an individual,
in association with others, or within a community or group. The Committee has also stated
that countries should guarantee that the exercise of the right to take part in cultural life takes
due account of the values of cultural life, which may be strongly communal, or which can
only be expressed and enjoyed as a community by Indigenous people's. Indigenous persons'
cultural values and rights associated with their ancestral lands and their relationship with
nature should be regarded with respect and protected. Countries must take measures to
recognise and protect the rights of Indigenous persons to own, develop, control, and use their
communal lands, territories, and resources. Indigenous persons have the right to act
collectively to ensure respect for their right to maintain, control, protect and develop their
cultural heritage, traditional knowledge, and traditional cultural expressions.
The Bill protects the right of Aboriginal persons and Torres Strait Islanders to take part in
their cultural life, and to maintain, control, protect and develop their cultural heritage,
traditional knowledge, and traditional cultural expressions in a number of ways, including:
• encouraging participation in the market by all persons, including Aboriginal persons
and Torres Strait Islanders.
• requiring consent from native title holders to carry out biodiversity projects under the
Bill on both exclusive possession and non-exclusive possession native title areas (land
or waters). This would ensure that native title holders have the final say on whether,
and what kind of, biodiversity projects are carried out on or in native title areas, and
promotes the engagement and cooperation of Aboriginal persons and Torres Strait
Islanders in the enhancement or protection of biodiversity in native species in
Australia;
• Where the project area is or includes an exclusive possession native title area -
providing for the project proponent to generally be the registered Native Title body
corporate for that native title area. However, there would be the ability for the
registered native title body corporate to consent to another person being the project
proponent and carrying out the project on the native title area. Consent from the
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registered native title body corporate would need to be obtained prior to registration
of the project.
• Requiring consent from other eligible interest holders (such as the relevant Aboriginal
Land Council, if any) prior to a biodiversity certificate being issued. The Bill would
set out the persons who would be eligible interest holders in relation to specific kinds
of land. The rules would also be able to prescribe additional persons to be eligible
interest holders as appropriate - this may include persons with other Indigenous-
related rights.
• providing for methodology determinations to exempt traditional Indigenous activities
from being prohibited in a project area;
• providing for the Minister to be able to consider cultural impacts before making or
vary a methodology determination or a biodiversity assessment instrument;
• providing biodiversity integrity standards that must (so far as reasonably practicable)
be consistent with Indigenous knowledge and values relating to biodiversity and
cultural heritage;
• allowing the Minister to make rules excluding kinds of projects from the scheme if
there is a material risk that the kind of project would have a material adverse effect on
the community of Aboriginal persons or Torres Strait Islanders;
• requiring the Nature Repair Market Committee to maintain a member with Indigenous
knowledge relevant to the functions of the Committee at all times.
• expressly providing that the Bill does not affect the Native Title Act 1993.
Therefore, the Bill promotes the right in Article 15 of the ICESCR of all persons to take part
in cultural life. It positively engages this right by promoting and encouraging participation by
Aboriginal persons and Torres Strait Islanders in the scheme, by providing for Aboriginal
persons and Torres Strait Islanders to be involved (and have the final say) in decisions
relating to the conduct of biodiversity projects on their traditional lands, and by protecting the
rights of Aboriginal persons and Torres Strait Islanders to continue to undertake traditional
activities on their lands.
Conclusion
The Bill is compatible with human rights because, to the extent that it may limit human
rights, those limitations are reasonable, necessary, and proportionate. Further, in some
instances, the Bill positively engages human rights.
The Hon. Tanya Plibersek MP
Minister for the Environment and Water
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ATTACHMENT B
FINAL POLICY IMPACT ASSESSMENT
Contents
Purpose ............................................................................................................................................... 237
Overview............................................................................................................................................. 237
The policy issue being addressed. ..................................................................................................... 238
Biodiversity is in decline.................................................................................................................. 238
Biodiversity is a public good............................................................................................................ 239
Limited incentives for non-government actors to address biodiversity impacts. .......................... 240
Imperfect market information and nationally consistent measurements ..................................... 241
What benefits could biodiversity restoration provide Australia?................................................... 241
Why Government action is required, and Government's policy position........................................ 243
Policy options considered. .............................................................................................................. 243
Recommendation ............................................................................................................................... 245
Scope ............................................................................................................................................... 245
Market design ................................................................................................................................. 246
Consequential amendments to existing Acts .................................................................................... 249
Impact analysis ................................................................................................................................... 250
Summary ......................................................................................................................................... 250
Financial flows................................................................................................................................. 253
Participation .................................................................................................................................... 253
Commonwealth Government ......................................................................................................... 254
States and Territories ...................................................................................................................... 255
Environment ................................................................................................................................... 255
Landholders..................................................................................................................................... 256
Costs to participate. ........................................................................................................................ 256
Implications for rights over real property (land) ............................................................................ 259
Risks, unintended consequences, and perverse outcomes ............................................................ 260
Feedback from consultation .............................................................................................................. 262
Implementation and review .............................................................................................................. 263
Implementation plan ...................................................................................................................... 263
Evaluation of the recommended option ......................................................................................... 264
Implementation challenges and risks ............................................................................................. 264
236
• ....................................................................................................................................... E
nsuring fit for purpose policy and regulatory settings................................................................ 264
• ....................................................................................................................................... E
nsuring effective administration of the legislation ..................................................................... 265
Management of implementation risks ........................................................................................... 266
Review ............................................................................................................................................. 266
Purpose
This Policy Impact Assessment (PIA) addresses the introduction of the Nature Repair Market Bill
2023 (the Bill) and the operation of the Nature Repair Market (NRM).
References cited are in the public domain.
Overview
In August 2022 the Prime Minister1 and the Minister for Environment and Water2 announced the
Government's intention to develop legislation to establish an NRM. This voluntary market would
reward landholders for undertaking projects that provide biodiversity outcomes such as
regeneration of landscapes, and the protection and enhancement of remnant vegetation and
habitats for native species.
Arrangements to establish an NRM would include issuing Biodiversity Certificates for successful
projects, recognising the biodiversity outcomes achieved. These certificates will be a new class of
asset, recorded in a public register maintained for the purposes of transparency and sharing relevant
information, and will be tradeable personal property.
Biodiversity projects have the potential to complement existing activity in some industry sectors.
Participants such as land managers, first nations groups, farmers, pastoralists, non-government
organisations, foresters, or Indigenous ranger groups may identify the potential to generate
additional income streams or other benefits to their primary focus of supplying agricultural and
input markets, generating carbon credits, or maintaining cultural connection to country.
Other parties such as conservation groups and land remediation consultants may see participation in
this new market as part of their core business and may rely on the arrangements to guide their
activities.
The Bill recognises that stakeholders have diverse interests which may evolve as the market
matures. The proposed arrangements balance the need for providing both certainty and flexibility to
potential participants who will assess for themselves whether their voluntary participation is in their
best interests.
The Bill articulates the market arrangements and introduces requirements and obligations for those
who choose to participate in this market, and it will be supported by subordinate legislation,
including rules and methods approved by the Minister for the Environment and Water. To avoid
1Biodiversity certificates to increase native habitat and support Australian landholders 26 August 2022
2Address by the Minister for the Environment and Water to the National Biodiversity Conference dinner, 27 July 2022
https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2F8699470%22;src1=sm1
237
doubt, people who wish to do so will still be able to lawfully undertake commercial biodiversity
projects outside of this legislative framework.
Biodiversity is one of multiple services provided by the environment that sustain life and are
generally described as ecosystem services. Initiatives to incorporate ecosystem services into a
market-type framework are a relatively new, and there are few instances around the world where
these markets are developed and operating at scale (the market in Australian Carbon Credit Units
(ACCUs) is a local example). These initiatives generally require governments to lead the development
of a market because the private sector has generally been hesitant to be drawn into the public policy
domain, and volunteer to pay for services and benefits previously not paid for (the reduction of
greenhouse gas emissions being one of the few exceptions).
As a result, there are limited precedents to inform a detailed policy approach, and no equivalent
markets to inform the development of an Australian nature repair market. Hence, the policy and
market design will have to be sufficiently flexible to allow for refinements as a result of experience
and feedback from market participants and other interested parties (an 'adaptive management'
model).
The policy issue being addressed.
Biodiversity is in decline.
Nature's annual contribution to the global economy through the provision of services related to
biodiversity, as a source of food and shelter, clean water, air, and healthy soils is estimated to be
USD$125 trillion a year3. In Australia, land based (terrestrial) ecosystems provide more than
AUD$325 billion in ecosystem services4. Australia is globally renowned for the quality of its
agricultural, forestry and fisheries products and aquatic and land-based biodiversity, which are a
significant attraction for both domestic and inbound international tourists.
Our land managers depend directly on the health of their natural resources and actively manage
their land for their success, productivity, and growth. Agriculture, forestry, and tourism industries
alone contribute more than $120 billion to the economy and employ more than 1 million
Australians5.
However, Australia's biodiversity is declining. Successive 'State of the Environment' reports, the
review of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), and other
independent reviews have highlighted the ongoing decline. The Australia State of the Environment
2021 report reinforced many of the issues relating to the decline of biodiversity in Australia, the
urgent need to protect native flora and fauna and introduce new initiatives to arrest the decline.
• Approximately 44 per cent of Australia's forests and woodlands have been cleared since
European settlement; 39 per cent being cleared before 1972. The three most heavily cleared
habitats in these areas together previously covered more than 170,000 square kilometres of
Australia, and each has lost more than 80% of its original extent. In temperate ecosystems,
less than 2% of original grasslands remain.
• It is estimated that Australia gains around 20 new pests or diseases each year. These invasive
species impact native species through a combination of habitat modification and predation.
3 Costanza et al (2014), Changes in the global value of ecosystem services, Global environmental change, 1 26, 152-8.
4 ABS, 2010, Australia's Biodiversity (Yearbook Australia, 2009-2010 Feature Article), Available at:
https://www.abs.gov.au/ausstats/abs@.nsf/Previousproducts/1301.0Feature%20Article12009-10
5
Calculated using Australian Bureau of Statistics National Account data.
238
• There is a high rate of species extinction in Australia. Over 50 Australian animals and 30
plants are known to be extinct. A further 404 animal species and over 1300 plant species are
either critically endangered, endangered, or vulnerable. In the 2019-20 bushfires, an
estimated 65 threatened species had over half of their habitat impacted. A further
49 species had more than 80% of their habitat damaged by the fires.
• Australia's oceans are amongst the most diverse and many of Australia's marine habitats are
unexplored. 80% of Australian's live within 100km of the coast and this has had significant
impacts on adjacent catchments, coastal ecosystems, and nearshore waters over the last
200 years. Harvesting and poor water quality eventually causing destruction of 92% of
Sydney rock oyster reefs and the extinction of South Australian oyster reefs. 95% of
Tasmanian giant kelp forests have disappeared due to shifting environmental conditions
intersecting with overharvesting of predators of the sea urchins which graze kelp. The
decline of many of Australia's coral reef systems has been documented in recent decades,
dramatically affecting their ability to support a diverse range of marine species, many
endemic to Australian waters6.
Active land and biodiversity management by landholders is not commonly valued by markets,
although properties with remnant bushland and intact landscapes which support remaining
indigenous species of flora and fauna may trade at a premium to neighbouring properties if these
attributes are valued by eventual buyers.
The processes for valuing these attributes tend to be opaque and subjective, due in part to
inadequate information and methods. Feedback from consultation on the policy position and the
exposure draft of the Bill indicates that this limits the availability of private sector funds for
investment in biodiversity improvement.
Biodiversity is a public good.
In an economic sense, biodiversity is a public good, defined as a good that is freely available, and
users cannot be barred from accessing or using them. This introduces a risk that public goods like
biodiversity can be overconsumed to the extent that their long-term availability is threatened.
These characteristics are consistent with the decline in biodiversity in Australia and elsewhere.
Governments are increasingly taking the lead in recognising and managing these risks, particularly
when they impact on economies and the quality of life of their communities.
Whilst in recent decades governments have supported landholders by offering grants or other time-
limited support for biodiversity protection and restoration, public funding is insufficient to support
existing biodiversity or sustain the level of restoration required to avoid a downward spiral. The
Australian Land Conservation Alliance estimates that we need to spend over $1 billion7 a year to
restore and prevent further landscape degradation. There are limits to the quantum of public
funding available, and many competing demands for public funds.
From a supply perspective, around 17% of Australia is part of the Indigenous land estate8, and the
agricultural sector manages approximately 60 per cent of Australian land across diverse landscapes
and utilises a wide variety of production systems. Other land holders, fisheries and conservation
managers protect and manage other ecosystems on land and in aquatic domains (fresh, salt, and
marine waters), generating outcomes which contribute to the quality of life enjoyed by the resident
6
Saunders et al (2022). A roadmap for coordinated landscape-scale coastal and marine ecosystem restoration. Report to the Reef and
Rainforest Research Centre, Cairns, Queensland.
7
ALCA-Media-release-SoE-220719.pdf
8
Australia's Indigenous land and forest estate (2020) - DAFF (agriculture.gov.au)
239
population and appreciated by tourists. However, the benefits of protecting, maintaining, and
enhancing biodiversity are not valued by existing markets, and funding support for such activities
has been restricted to time-limited grant and research programs with limited coverage. This means
there is no added incentive to protect or enhance biodiversity on areas for those that fall outside of
current grant offerings.
From a demand perspective, businesses and other entities are increasingly expressing an interest
and/or volunteering to invest directly in landscape restoration and protect or create biodiversity.
Their motivations may be varied, including a desire to seek an acceptable financial return, or more
broadly to support their social licence to operate9. However, the demand for investment in these
opportunities is difficult to define, and these voluntary markets are not developing in the absence of
a clear framework.
A recent report prepared independently by PricewaterhouseCoopers suggests 'a biodiversity market
could unlock $137 billion in financial flows to advance Australian biodiversity outcomes by 2050'10.
Limited incentives for non-government actors to address biodiversity impacts.
Split incentives arise because of the combination of the public good characteristics of biodiversity,
and current market and policy settings. Split incentives are where those responsible for contributing
directly and indirectly to impacts such as biodiversity decline do not bear the impacts or the costs.
Current requirements to address adverse impacts are defined primarily through statutory project
environmental approvals which are only required for a small subset of economic activity which
exceeds a nominated threshold. Requirements can also vary between jurisdictions. The review of the
EPBC Act highlighted that a significant range of adverse biodiversity impacts are not addressed by
the market because they fall below a threshold where environmental approvals are required,
accumulate over time, and are only assessed periodically (providing a snapshot rather than a
continual view of what is happening).
The public good attribute of biodiversity means biodiversity is not easily appropriated or traded
which can disincentivise private investment and landholder participation. There is currently no legal
mechanism for landholders to 'sell' the outcomes from biodiversity activities to private buyers. This
means philanthropic and financial investors have few options but to buy and lock up land to achieve
biodiversity outcomes rather than supporting activities in conjunction with other land uses. This has
the effect of limiting investment in biodiversity projects to individuals or organisations with a high
level of discretionary income, and a flexible investment mandate which allows them to invest
without expecting a conventional financial return. Furthermore, the opportunity cost for existing
landholders of committing to biodiversity conservation may be high, limiting the financial incentive
for landholders to deliver biodiversity outcomes on a given parcel of land.
The consequences of a lack of market arrangements include under-investment from the private
sector and under-delivery of biodiversity outcomes such as habitat and ecosystem support for
threatened species. Some characterise this outcome as 'market failure'. This is particularly the case
in developed regions where land has high value alternative uses and has operated that way for more
than a century in the case of south-eastern Australia. In these circumstances, the maintenance and
protection of native species is limited to remnant tracts of vegetation or landscape previously
deemed unsuitable for development.
9
RM Consulting Group (RMCG), 2016. Evaluating business investment in biodiversity conservation.
10
PricewaterhouseCoopers, A Nature-positive Australia - the value of an Australian Biodiversity market, December 2022.
240
In the last century, in many locations there have been efforts to restore or establish new native
habitat through environmental plantings along waterways, hillsides and areas prone to erosion and
better manage existing vegetation to improve biodiversity outcomes. However, these are rarely
delivered at a landscape scale, meaning that gains are localised (although they are nonetheless,
locally important). This means that many remnant populations are vulnerable and have limited
resilience to respond to threats (native or introduced), undermining their sustainability. There are
many examples of significant native ecosystems at risk of reaching a tipping point where recovery to
a pre-established state is not possible, where the ecosystem structure will be fundamentally
changed with consequential impacts on biodiversity11 12.
Imperfect market information and nationally consistent measurements
Consultation has highlighted that the lack of information that could define a 'market' in biodiversity
hinders investment in potential projects that may deliver biodiversity outcomes.
A nationally consistent framework and measurement methodology is needed to support the
development of a market that could deliver biodiversity benefits at a scale to arrest Australia's
biodiversity decline. Consultation has highlighted that it will be critically important that governance
measures are in place to ensure market integrity so that both buyers and sellers can be confident
that what is being traded meets at least a minimum standard, even if different projects and different
locations may deliver different outcomes.
Multinational companies, including Australian companies operating overseas, have advised that
there is strong institutional and shareholder interest in participating in biodiversity markets. These
companies advise that corporate governance requirements mean that their participation requires
these markets to include mechanisms to ensure a high level of market integrity, and underpinned by
robust, evidence-based scientific methodologies. The proposed policy position and market
arrangements address these requirements because they will engender confidence in market
outcomes to all potential participants and interested parties.
What benefits could biodiversity restoration provide Australia?
Recent research suggests that when ecosystems have less than 30% coverage of healthy native
vegetation, ecosystem services and biodiversity sharply decline.13 The same research has calculated
that 13 million hectares of land must be restored in Australia to reach the 30% by 2030 goal
announced by the Minister for the Environment and Water in July 202214 .
The opportunity is to adopt a broad approach to allow for activity undertaken on all land types,
inland, coastal, and marine waters. This maximises the opportunity for pursing improved biodiversity
outcomes and reflects the desire of a broad range of stakeholders to participate in the market by
offering a range of projects across Australia. The resulting benefits from a program of this scale may
include:
• restoration of habitat and ecosystem services, improving ecosystem resilience;
• expansion of habitat for endangered and threatened species;
• re-establishing ecosystem functions like pollination and erosion control;
11
The 10 Australian ecosystems most vulnerable to tipping points. Laurence et al. (2011). Biological Conservation 144(2011) 1472-1480.
12
2021 Australia State of the Environment
13 Mappin et al . (2021). The costs and benefits of restoring a continent's terrestrial ecosystems. Journal of Applied Ecology.
14
National Press Club address, 19 July 2022, Minister for the Environment and Water.
241
• improving soil structure and productive capacity;
• creating jobs, strengthening regional industry capabilities around land remediation and
conservation, diversifying regional economies, and improving resilience of livelihoods.
242
Why Government action is required, and Government's policy position
A 'business as usual' option would rely upon the market resolving matters on its own, with limited or
no additional government intervention. The government has ruled out a continuation of the status
quo, in view of the significant and expected continuing biodiversity decline. This decision was
informed by the view that the opportunities for addressing biodiversity are hindered by inadequate
information and insufficient methodologies for measurement and valuation, limiting incentives for
change in behaviour or investment by the private sector. The cumulative environmental, economic,
and reputational costs mean the existing policy settings and arrangements were assessed as
unacceptable.
Policy options considered.
Relying heavily on existing, alternative measures was considered and ruled out for the reasons
discussed below. Each of these measures are suited to particular circumstances, and will play a role
in delivering improved outcomes under the Nature Positive Plan, but they were nor assessed as
suitable for delivering the breadth and scale of intervention required to arrest the biodiversity
decline:
• Regulatory requirements through legislation - the Government has committed to stronger
environmental legislation, but there is a limit on what regulation can achieve as a standalone
strategy because it encourages proponents to focus on regulatory requirements rather than
voluntary actions;
• Offsets - offsets are designed to compensate for significant residual impacts on protected
matters arising from project development after appropriate avoidance and mitigation
measures have been taken. The incorporation of a 'like-for-like' requirement in offset
schemes means that the offset, in most cases, is located as close to the impact site as
possible. Offset schemes are only considered where all other options in the avoid, mitigate
hierarchy have been exhausted. It is important to recognise that offset and credit schemes
have fundamental differences;
• Grant programs - traditionally, environmental grant programs have offered public funds to
support activities that rely on an assumption that governments have near perfect
information to establish biodiversity priorities, the activities required, and the costs of those
activities are acceptable to landholders. As a result, grant programs operate within a
prescribed scope and cannot utilise market-based approaches. They may not provide for
innovation with the private sector and tailored approaches to local circumstances, and the
need to scale up to achieve gains at a regional or landscape scale;
• Conservation and restoration programs reliant upon public sector funding - a government-
led approach would require identifying the areas of most need of protection, restoration,
and enhancement, defining the works to be undertaken, and instituting tailored programs to
incentivise landholders and managers to undertake the required works. One study estimated
that progressing towards a level of biodiversity stability may require $2 billion per annum of
public funds for the next 30 years to restore an estimated 13 million hectares of degraded
land.
Government took the view that an appropriately designed market-based approach could
complement the above measures, offering more flexibility, incentivising innovation, expanding the
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geographic scope of the initiative, and attract private sector capital into delivering improved
biodiversity outcomes.
Historically markets have been initiated through a variety of processes, including being initiated and
led by the private sector (e.g., various commodity markets), a collaborative effort between public
and private actors (e.g., financial markets), and leadership by government (e.g., markets dealing in
externalities).
The role and contribution of government varies according to how the markets were initiated, how
they evolved, and the maturity of the markets. National governments are more likely to be heavily
involved where the costs and challenges of market establishment are high, there are aspirations for
consistency across all sub-national jurisdictions or with international trading partners, and a desire
to minimise or avoid friction, search, and transaction costs.
The Commonwealth Government has addressed many of these aspects in the Australian carbon
offsets market, through establishing the CFI Act which clearly articulates the role of government, and
the roles, responsibilities, liabilities, and obligations of market participants. This experience has
informed the development of the proposed NRM, and the associated Bill15.
Biodiversity markets in Australia16
There is limited publicly available information on the size of Australia's biodiversity markets 17. However, it is
recognised that it is growing. Demand in the voluntary carbon market is on track to reach 1,600,000 ACCUs
in 2023, up from 25,000 in 2014-15, and some State regulatory schemes are requiring emissions reductions
and offsetting. This represents a significant growth rate and increasing recognition particularly by large
players that they need to pay for ecosystem services (in this case carbon sequestration and abatement).
There is also an increasing demand for carbon + biodiversity units which deliver both carbon and
biodiversity outcomes. There is a large potential for landholders to supply into the market.
Participants who supply and demand biodiversity services generally interact through direct transactions,
often engage intermediaries (including market platforms), or even deal directly with individual business
entities. For example, a firm facing obligations to replace biodiversity (perhaps as a condition of
environmental approval for a specific project) may purchase land to provide the biodiversity directly rather
than contracting with an existing landholder to supply the service.
Supply
Landholders can supply biodiversity services by managing their land in a way that protects, restores, or
promotes biodiversity. There is a large potential for landholders to supply biodiversity services, as indicated
by the participation of the agricultural sector in the Emissions Reduction Fund. Since 2012, projects on
agricultural land have made up the majority of the issued ACCUs on the Emissions Reduction Fund, worth
around $1.45 billion (at issued prices). There has been significant uptake of methods involving the
regeneration or protection of native forests on grazing lands, particularly in the semi-arid rangeland regions
of Queensland and New South Wales18. There has been less uptake of agriculture-based methods in areas
where there are alternative land uses for land that that could be intensively farmed.
15
Noting the importance difference that the CFI Act addresses offsets, whereas the Nature Repair Markets Bill does not.
16 Frontier Economics 2020, Biodiversity services platform scoping study, A report for the Department of Agriculture, Water and the
Environment, 13 November 2020.
17 There is limited data available on regulatory offset obligations required by State and Territory or Commonwealth systems, or details of
third party offset transactions, other than those involving trade in biodiversity credits. The information on government-led purchasing is
dispersed across different governments and government agencies, and difficult to track through time. Similarly, no data is routinely
collected or published on the size of the voluntary biodiversity market and nature of relevant trades.
18 Macintosh, A; Roberts, G; Buchan, S, 2019, Improving Carbon Markets to Increase Farmer Participation, A report prepared for
AgriFutures.
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Demand
Targeted consultation on the Government's policy position has provided a strong indication that demand
for projects that deliver improved biodiversity outcomes will grow with the appropriate frameworks in
place. Current demand for biodiversity services comes from compliance requirements (offsets),
philanthropic investments, commercial decisions to meet biodiversity/environmental commitments, or as a
public good investment by government. Many large corporations in Australia such as from the transport,
industrial and retail sectors are increasingly interested, or already investing, in projects with biodiversity
benefits. Philanthropic demand from environmental NGOs is another source of demand, potentially around
$100 million a year. This demand from different sectors suggests there is growing private sector and non-
government appetite to pay for improved biodiversity outcomes, and additional unmet demand. These
views are supported by the independent report by the PricewaterhouseCoopers referenced elsewhere in
this document.
Separately the Government is supporting the Taskforce on Nature-related Financial Disclosures (TNFD). Its
purpose is to develop a global risk management and disclosure framework for corporates and financial
institutions to report and act on evolving nature-related risks and opportunities. The TNFD is currently being
tested internationally and is expected to provide a framework for growing corporate demand for projects
that improve the environment.
Beyond voluntary markets there are several compliance schemes that could also result in a long-term
source of demand if regulators require biodiversity offsets as part of the environmental approval(s) for
specific projects (where this is practicable), or as an outcome of a strategic regional assessment.
The Nature Positive Plan, released by the government in December 2022, outlines that biodiversity offsets
should only be used following demonstration of attempts to avoid and mitigate harm. The Government
intends to legislate and strengthen the 'offsets hierarchy' and identify Areas of High Environmental Value
where development generally will not be allowed. If a development has impacts to matters of national
environmental significance that cannot be avoided or mitigated, the project proponent will need to take
compensating action that will deliver a net gain for the imperilled plants or animals . A National
Environmental Standard for Environmental Offsets will be made under law to provide certainty and
confidence in this approach. Projects certified under the Nature Repair scheme won't be used as offsets -
unless and until - they meet the new MNES and Offsets standards.
If the Nature Repair Market meets the requirements of State and Territory schemes, these offset
requirements could be a source of market demand.
Recommendation
It is recommended that Government proceed with a market-based approach (the Nature Repair
Market, or NRM) which will establish a voluntary market where the non-government sector is
engaged and finances delivery of improved biodiversity outcomes, using approved, robust
methodologies. Landholders/ project proponents will be rewarded for undertaking projects that
protect or enhance biodiversity by receiving biodiversity certificates which can then be sold to other
parties.
Other parties may wish to progress other biodiversity projects on different terms and under other
arrangements, and if that is the case these projects will not be undertaken under this legislative
framework.
Scope
The scope of the NRM will include all of Australia's landmass and inland waters, and its terrestrial
seas (out to the 12 nautical mile boundary). This includes the areas currently under the most
significant and sustained threat of biodiversity decline due to habitat modification, fragmentation
245
and loss, invasive species, and urban expansion. Many of the projects delivered through the NRM
are expected to deliver improved outcomes in perpetuity by protecting the improved habitats, and
this will support the Government's commitment to protecting 30% of Australia's land by 2030 (the
protection of 30% of Australia's seas is addressed by other initiatives).
Competing land uses and the voluntary nature of the NRM means it is not possible at this point to be
more definitive around the location or extent of land that will be addressed by the NRM.
Nonetheless, the areas currently under threat are logical areas to evaluate for restoration projects,
especially where threats can be mitigated or removed with careful planning.
The successful operation and confidence in the market relies heavily on fit-for-purpose
methodologies developed to guide and deliver improved biodiversity outcomes in specific
circumstances. These methodologies will need to comply with biodiversity integrity standards
reflected in the NRM Bill, and will be developed with input from subject matter experts so that
relevant scientific, Indigenous knowledge, and legal requirements are considered. Public
consultation would be undertaken on the methodologies. The Minister for the Environment can only
approve a methodology when the Independent advisory group has confirmed that the methods
meet the integrity standards. Prior to making any decision, the Minister will be briefed on the
consequences of adopting each methodology, including identifying areas where the methodology
may be best suited, and the potential environmental, social, cultural, and economic impacts of any
potential change in land use or economic activity.
The NRM will complement and leverage other elements of Government's Nature Positive Plan to
deliver biodiversity improvements, such as:
• National Environmental Standards so there is consistency in the listing of threatened
species and ecological communities, Regional Forest Agreements, and project evaluation
and assessment;
• Regional planning that identifies areas of high, and moderate environmental value, plus
areas identified for development and approved land uses;
• Environmental offset arrangements that deliver better overall environmental outcomes,
including capacity to make conservation payments where suitable environmental offsets
are not available; and
• Further development and publication of environmental-economic accounts to better
understand the condition of the environment and interactions between the economy and
the environment, extending this conversation onto the non-government sector through
championing the focus on the Taskforce for Nature Related Disclosures, where corporates
are encouraged to identify their impact on natural systems, including biodiversity.
This recommendation will deliver a nationally consistent framework that can increase the supply of
biodiversity outcomes as well as addressing information issues that private sector cannot solve
alone. Government investment in addressing these challenges will ensure that the right knowledge
and expertise are harnessed and available in a consistent way to potential private investors.
Market design
A fully-fledged national voluntary biodiversity market requires a robust legal framework to support
the delivery of the desired biodiversity outcomes. The legislation is modelled after the CFI Act which
established a voluntary market for carbon sequestration projects that deliver carbon abatement.
246
This has the benefit of making it easier for participants to pursue projects involving landscape
restoration and management which will deliver both carbon and biodiversity outcomes.
The Bill (and associated consequential amendments) addresses three key objectives, including:
1. introducing a nationally consistent framework to describe and measure biodiversity
outcomes;
2. enabling the purchase and transfer of biodiversity certificates, and a public register that
describes biodiversity projects designed to deliver biodiversity benefits and certificates, so
that the use of ownership, use and claimed benefits can be tracked and shared publicly; and
3. establishing project assurance and compliance systems to provide certainty to both buyers
and sellers and which underpins market integrity.
The NRM Bill includes provision to:
• Establish and issue tradeable certificates corresponding to individual biodiversity projects:
o A Certificate will represent a description of a project maintained in a central, publicly
accessible register maintained by the market regulator, providing details such as project
location, scale, methodologies applied, progress achieved, and biodiversity outcomes
delivered.
o Certificates will establish property rights for landholders over the project that are
separate from the land.
o The certificates would include a list of project attributes to allow buyers to compare and
understand the outcomes being delivered.
• Establish an independent advisory committee.
• Establish nationally consistent biodiversity methodologies that set out discrete ways in
which biodiversity outcomes can be achieved that are informed by science to ensure
environmental integrity.
• Establish an integrity and oversight system that provides confidence to investors about the
outcomes that a project would deliver, including confirmation that projects are being
maintained for relevant permanence periods.
• Develop a public registry of projects and of biodiversity certificates that provides
information to the market on the supply of projects together with a trading platform that
allows sellers to find information about the demand.
• The Bill includes a provision for Government purchasing of certificates, but no funding has
been allocated to support this.
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Alignment to Government goals
The need to address the decline in Australia's biodiversity is a priority for the Government as set out
in its Nature Positive Plan19. Government is encouraging voluntary action to address biodiversity
impacts, as well as strengthening regulatory requirements because neither approach on their own
will be sufficient to deliver the outcomes required. The establishment of an NRM will introduce a
robust framework for voluntary action contributing to improved biodiversity outcomes.
Government is also progressing other actions, such the introduction of National Environmental
Standards to set the outcomes for nationally important environment and heritage matters, the
establishment of a National Environment Protection Agency to improve trust and transparency in
regulatory decision-making, regional planning to identify conservation objectives at a landscape
scale and speed up decision-making, improved conservation planning arrangements and reviewing
the scope and application of a range of other conservation policies and initiatives to explore if they
can be extended to improve biodiversity outcomes (such as recognising the biodiversity benefits of
carbon credit projects).
In October 2022 the Minister for the Environment released the Threatened Species Action Plan:
Towards Zero Extinctions20. This sets out a pathway for threatened species conservation and
recovery over the next 10 years, including preventing any new extinctions of plants and animals, and
protecting and conserving at least 30% of Australia's land mass. Since then, an international
agreement has been reached at 2022 United Nations Biodiversity Conference (COP15), through
which most countries agreed to protecting 30% of the world's land mass and oceans by 203021.
There will be regular assessments of the effectiveness of the Government's policy position, and the
Bill recognises that there will be both statutory reviews of the legislation, and non-statutory reviews
of the Government's policy approach. These reviews may inform future targets Government may
adopt.
Governance structure
The policy position reflects a governance structure where the Department of Climate Change,
Energy, the Environment and Water (DCCEEW) will be responsible for policy development, including
the development of the technical methodology determinations that outline the various mechanisms
through which biodiversity outcomes are to be achieved. The methodology determinations will
establish specific requirements for how distinct types of project activities would be managed and
would also be the legal mechanism through which certain rights and obligations are assigned to the
project proponent. Two methodologies are currently being prototyped through the Agriculture
Biodiversity Stewardship Package pilots22, and it's likely that the market will commence based on
these two methodologies, and expand over time as other methodologies are developed and
approved.
An NRM Committee will be established to advise on these methodologies and make
recommendations to the Minister for the Environment and Water, informed by public consultation.
The day-to-day regulation of the scheme and its integrity will be undertaken by the Clean Energy
19 Nature Positive Plan: better for the environment, better for business, December 2022
https://www.dcceew.gov.au/sites/default/files/documents/nature-positive-plan.pdf.
20
https://minister.dcceew.gov.au/plibersek/media-releases/minister-launches-threatened-species-action-plan-toward-zero-extinctions
released 4 October 2022
21
UN Biodiversity Conference (COP 15) (unep.org)
22
https://www.dcceew.gov.au/environment/environmental-markets/agriculture-stewardship
248
Regulator (CER) which already regulates comparable land-based projects under the CFI Act. It is
anticipated that a portion of participants in the biodiversity market would also have carbon projects
established under that legislation, allowing for some potential efficiencies in the regulation of the
two schemes by the CER.
Consequential amendments to existing Acts
Engaging the CER as regulator of the market arrangements to establish a national biodiversity
market necessitates a few minor consequential amendments to the Clean Energy Regulator Act 2011
(CER Act), and the National Greenhouse and Energy Reporting Act 2007 (NGER Act). The required
changes are described below.
Clean Energy Regulator Act 2011
There are amendments to the CER Act to ensure that:
a. the proposed legislation can confer functions on the CER;
b. the functions of the CER include functions conferred on it by a biodiversity law. A
biodiversity law would consist of the proposed legislation and its instruments;
c. additional fields of expertise relating to the proposed legislation are included for members
of the CER;
d. the CER can delegate its powers to officers of the Department administered by the Minister
administering the proposed legislation who are formally assisting the CER under section 37
of the CER Act (including where that Minister is different to the Minister administering the
CER Act);
e. where the Minister gives a direction to the CER in relation to the proposed legislation, the
Minister is required to consult with the Minister administering the proposed legislation;
f. a person is not prevented from giving a document containing protected information to a
court or tribunal if necessary to do so for the purpose of giving effect to the proposed
legislation;
g. an official of the CER can use or disclose protected information for the purpose of a
biodiversity law;
h. an official of the CER can disclose protected information that has been obtained by the
Regulator under, or in accordance with, the proposed legislation, to the Minister
administering the proposed legislation;
i. an official of the CER is able to disclose protected information that has been obtained by the
Regulator under, or in accordance with, the proposed legislation, to the Secretary of the
Department administered by the Minister administering the proposed legislation, or an
officer of the Department administered by the Minister administering the proposed
legislation, for certain purposes relating to advising the Minister, the administration of
relevant legislation, or relevant international agreements (including the development of
such agreements);
249
j. the CER can disclosure protected information from currently or formerly registered
biodiversity projects that are more than seven years old for the purposes of developing
methodology determinations;
k. an official of the CER can disclose protected information to Director of National Parks (within
the meaning of the Environment Protection and Biodiversity Conservation Act 1999), the
Regional Investment Corporation (within the meaning of the Regional Investment
Corporation Act 2018), or a prescribed international biodiversity body, if the disclosure is
authorised by the Regulator;
l. the Minister administering the proposed legislation can authorise the use or disclosure of
protected information that has been obtained under, or in accordance with, the proposed
legislation for specific purposes that are appropriate and adapted to the implementation of
the Convention on Biological Diversity; and
m. if the CER delegates powers under the proposed legislation to Departmental officials, the
secrecy and information sharing provisions in the CER Act should be taken to apply to those
Departmental officials as if they were officials of the CER.
These changes will support the CER to administer the proposed legislation in a way that is consistent
with, and streamlined to, its administration of other schemes.
National Greenhouse and Energy Reporting Act 2007
It is proposed to make minor amendments to the NGER Act to ensure that:
a. the Minister may determine requirements to be met by registered greenhouse and energy
auditors preparing for, or carrying out, an audit under the proposed legislation; and
b. a register of greenhouse and energy auditors to is able to be kept under that Act for the
purposes of the proposed legislation.
These changes would support the use of greenhouse and energy auditors to carry out audits under
the proposed legislation, which is consistent with the approach taken by the Regulator under other
schemes. It is anticipated there would also be amendments to subordinate legislation under the
NGER Act including the National Greenhouse and Energy Reporting Regulations 2008 and the
National Greenhouse and Energy Reporting (Audit) Determination 2009.
Impact analysis
Summary
Economic benefits of the • It is challenging to estimate the net economic benefits of the NRM given
approach that participation is voluntary, the adoption rate, nature, and geographic
spread of projects is not yet known, a market in biodiversity certificates
does not yet exist, and the delivery of outcomes from the first tranche of
projects will be at least three to five years away.
• The aforementioned estimate by PricewaterhouseCoopers in December
2022 that ' ... a biodiversity market could unlock $137 billion in financial
flows to advance Australian biodiversity outcomes by 2050' could be used
as a rough guide.
250
• However, it is important to note that if this estimate of financial flows is
used as a proxy for investment in biodiversity projects or initiatives, they
are not an estimate of the impact on measures of national economic
activity such as Gross Domestic Product (which would require different
means of analysis using assumptions that will be difficult to test and
validate).
Regional benefits of the • The NRM is designed to facilitate private sector investment into projects
approach that deliver biodiversity improvements, which could focus on conservation,
repair, restoration, maintenance, and protection. These projects could be
delivered across Australia, and its possible some regions are favoured more
than others. This distribution will largely reflect decisions made by the
market itself based on perceived need or opportunity. Where appropriate,
the approach will allow for projects to be recognised for both carbon credit
and biodiversity outcomes.
• On the assumption that most economic benefits will arise where the
money is invested in projects, then the economic effects of the market will
tend to be more evident in areas where projects are delivered.
Participation • Consultation has highlighted a large level of interest in progressing projects
to deliver improved biodiversity outcomes (supply side), and the
importance of aligning policy and standards with State and Territory and
emerging international frameworks to maximise the pool of potential
buyers (demand side). The policy position addresses these requirements.
Government • Government's role is to develop the policy position and legislative
framework, regulate the market, and support industry development.
• The Bill includes a provision for Government purchasing of certificates, but
no funding has been allocated to support this.
States and Territories • The introduction of a national biodiversity market underpinned by relevant
Commonwealth legislation may represent a degree of potential
competition for supply into the various sub-national schemes, but there
may also be synergies in aligning policies and methodologies.
Environment • The successful delivery of biodiversity projects is intended to slow the rate
of biodiversity decline in the early phases of market development and
arrest the decline as the number of projects increases in number and in
geographic spread. It may be premature to commit to biodiversity-related
targets or key milestones given the complexity, and uncertainty around
participation, and project success (failure) rates.
Landholders • The existence of a market that supports biodiversity projects in exchange
for money from private buyers has the potential to benefit a range of
landholders who want to generate additional income streams or other
benefits to their core activities.
251
Cost to participate • The voluntary nature of the scheme means that landholders would only
proceed with a biodiversity project if the expected benefits (financial and
otherwise) exceed the costs of the project and provide an acceptable
return. Each landholder may have their own criteria for this calculation,
and the market arrangements need to have sufficient flexibility to
accommodate a range of motivations.
• Government will provide industry development activities to support
landholders wishing to participate in the market, and initial estimates
suggest an average indicative estimate of regulatory costs for landholders
of $340 per annum over a 10-year project life (noting that the eventual
cost is sensitive to the scale and complexity of each project).
Implications for rights • Projects can be registered by landholders, or other parties who have the
over real property (land) consent of the landholders and other eligible interest holders to progress a
project on a specific site.
• The intention of the scheme is that biodiversity projects would get noted
on the title of the land (or area) where the project occurs, and that the
party who is registered as the proponent of the project on would be the
one with the legal obligation to maintain the project, regardless of
ownership of the land or area where the project is undertaken.
• In the event of a land sale, there would be provisions for the new owner to
voluntarily take over as the proponent of the project, but they would not
be obligated to do so; this would have to be a matter of negotiation
between a buyer and seller of a property and potentially the project
proponent.
Broader community and • Individual landholders, and potential buyers of Biodiversity Certificates will
economy determine which locations are best suited to the delivery of biodiversity
projects, subject to relevant approvals from local, State and Territory
governments which might have expectations, or policy overlays relating to
land use.
Risks, unintended • The primary risk to success of projects is the potential impact of natural
consequences, and disasters on individual projects and the temporary disturbance this can
perverse outcomes cause before the systems are able to recover. The scheme is intended to
operate so that as long a landholder made reasonable efforts to follow the
obligations set out in the methodology determinations towards recovery,
then the impact of natural disturbance would not be interpreted as non-
compliance against the project obligations.
• There may be additional material risks where:
a) participants in the market may not behave in line with the
methodologies or rules and default on their obligations to maintain
their projects (to be managed through enforcement of compliance
obligations); and/or
b) the approved protocols and rules are incapable of fully delivering the
desired outcomes, or even lead to perverse environmental outcomes
(to be assessed during protocol development and subsequent
monitoring).
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Key influences on the • The success of the policy rests heavily on three key factors, the:
success of the 1. ease of participation and project implementation, which should
recommended approach encourage the delivery of projects, and the supply of associated
biodiversity certificates (supply certainty);
2. uptake by private and public investors to deliver biodiversity outcomes
at scale (demand certainty); and
3. ability of participants on both the supply and demand sides of the
market to be seen to capture sufficient benefits to encourage re-
investment and attract new participants to the market (certainty
around the potential for the market to grow).
Financial flows
Under the proposed policy approach, the financing of proposed biodiversity projects would initially
be fronted by the landholder or project proponent23. If the project proponent then chooses to sell
their certificate24, the proponent would then compensated by a buyer who wishes to secure those
outcomes. This would mean the ultimate funding for the biodiversity projects is coming from the
non-government sector instead of the public sector. The scheme recognises the importance of
issuing a biodiversity certificate as quickly as possible so that the project proponent can recover the
upfront costs of the project. The award of a certificate will only be considered if the project is
progressing towards delivering, and appropriately maintaining, the targeted biodiversity outcomes
as determined in accordance with the methodology the project has approval to implement.
Participation
Based on the experience of the Agriculture Stewardship Pilots, it is expected that the biodiversity
market would initially have around 20 to 30 landholders per region who would be willing to
participate as potential managers of biodiversity projects. These projects would be issued
Biodiversity Certificates if they were successful. Multiple variables will determine how attractive
participation will be in any particular region, including competing demand and use for areas that
might be suited to potential biodiversity projects. It is difficult to forecast participation with any level
of precision given the NRM scheme is new, and the market for biodiversity certificates has not yet
emerged.
If the adoption rate from the Agriculture Stewardship Pilots was extrapolated across the 50-odd
NRM regions25 in Australia this may mean somewhere in the neighbourhood of 1,000 to 1,500
potential participants on the supply side, at least in the initial stages. Other markets in ecosystem
services, such as the market for Australian carbon credits, initially experienced a relatively slow
growth rate which improved as confidence in market arrangements grew, and policy changes and
public support underpinned demand for the product(s). New markets often require time to establish
a positive track record and evolve through a series of logical phases. This new, national biodiversity
market may follow a similar path.
Consultation to date has highlighted broad interest in demand from mid to large scale corporates,
but uncertainty remains around the demand aspects of the market. As discussed elsewhere in this
23
Landholders and project proponents could be the same, although the Bill recognises that they could be different parties.
24
A Biodiversity Certificate would be awarded to the registered project proponent (subject to the proponent and the project meeting all
relevant requirements). Some project proponents may elect to retain their certificates rather than transfer or sell them to another
party.
25
NRM regions are regional areas with a natural regional management organisation that receives public funding to deliver natural
resource management strategies and progress relevant strategies within their region.
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document, an independent report by the PricewaterhouseCoopers identifies very significant
potential demand out to 2050. Demand for Biodiversity Certificates may come philanthropic
investors, parties who have environmental approval obligations to meet, and from the market for
ESG investment26 which has grown rapidly as an investment style over the past decade. The pool of
capital available for ESG investment in Australia is substantial, and was reported to be $980 billion in
2018, including $70 billion in sustainability-themed investments. Interest in the biodiversity markets
will be highly sensitive to the integrity of the market arrangements, confidence in the outcomes
being delivered by individual projects, and how well the projects satisfy investment-related criteria.
It is anticipated that the first movers or early adopters in a market such as this may be project
proponents/suppliers offering a mix of carbon and biodiversity outcomes. There has been
considerable interest to date from buyers already active in the voluntary carbon market who are
interested in supporting projects that deliver additional non-carbon benefits27. A 'carbon plus
biodiversity' project would give participants some confidence about entering a new market and the
price that they might be able to secure for the outcomes that a biodiversity project alone could not
provide. Over time, the market may establish pricing parameters for the biodiversity outcomes that
it values the most.
Both the supply and demand sides of the market are likely to be at least partially price-sensitive,
although other motivations may be relevant in the decision-making process as well. The process of
establishing a price for Biodiversity Certificates will be left for buyers and sellers to determine
themselves through negotiation.
Commonwealth Government
The work required of the Commonwealth Government (and the associated costs) includes:
The initial development of the legislative framework - key tasks would include project
management, policy work and consultation. The initial few months would be spent developing
primary legislation followed by subsequent development of subordinate regulations and rules
over the following 12 to 18 months.
Industry development activities that include the provision of advice to potential and actual
buyers and sellers in the market, and intermediaries.
Ongoing management of the market and the integrity of the market arrangements, including
expanding the responsibilities of the regulator, establishing the register, compliance, and the
tools, processes, and IT interface the regulator will need to undertake their role.
The initial estimate of the cost to taxpayers of drafting, consulting on, and delivering the market
arrangements was $13.2m over two years from 2021-22 to 2022-23, although this is sensitive to the
scope of the market which is currently the subject of public consultation. Further costs to administer
the market over the longer term are estimated at $10m a year based on the experience of the CER in
regulating the carbon market, but this is highly dependent on the level of market participation.
26
ESG investing is when an investor considers sustainability features (including environmental, social and governance factors) to inform
their investment strategy.
27
Including parties interested in Indigenous carbon credits and the current Carbon + Biodiversity pilot.
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States and Territories
Various States and Territory governments have existing schemes relating to biodiversity. The
introduction of an NRM may represent a degree of potential competition for supply into the various
sub-national schemes. For instance, a particular landholder might choose to undertake a project
under the national market arrangements and deliver a Biodiversity Certificate, rather than
participate in a state-based scheme. New South Wales has a market-based scheme which offers
credits to the private market28, while other jurisdictions operate compliance schemes designed to
identify or deliver offsets for development where there are unavoidable environmental impacts.
Commonwealth, state, and territory environment ministers have agreed to cooperate in the
development of biodiversity markets in Australia. A national market and sub-national schemes may
co-exist for at least some time.
There may also be a new cost for states and territories, which would be empowered (but not
required) to note the existence of a biodiversity project on land title systems they manage. However,
as with the carbon scheme, the intention would be for the CER to notify the states of the existence
of a project. If the state or territory chooses to act on it, then it may take on additional responsibility
for managing the notification of encumbrances on land title for the purposes of property
transactions. Initial consultation with the various states and territories suggested that such a
requirement would not have much of an impact beyond what is already created by the carbon credit
market.
State and territory governments may seek to leverage opportunities to facilitate private investment
through the scheme, through providing state-based industry development support. This market
would also create a nationally consistent approach to describe and measure biodiversity outcomes
and allow coordination between state and national approaches.
The Commonwealth and each State and Territory Government financially support the 50-odd NRM
Regions Australia, which make an important contribution to managing Australia's natural
landscapes. The NRM Regions may choose to play a proactive role in supporting the development of
a national biodiversity market, and to do so may require additional capabilities, expertise, and
funding.
Environment
The successful delivery of biodiversity projects is intended to slow the rate of biodiversity decline in
the early phases of market development and arrest the decline as the number of projects increases
in number and in geographic spread. However, it is not realistic to suggest a timeframe for delivering
these outcomes given the various uncertainties involved.
However, there is significant potential to enhance significant regions of the Australian landscape if
1000 new biodiversity protection or enhancement projects are established each year, and a high
proportion of these projects successfully deliver the desired biodiversity outcomes. This does not
mean that the gains will be evenly distributed across Australia, and there is a risk that biodiversity
declines continue in some regions because of factors beyond control. Natural processes and
influences will have a significant influence on the success of the program, some areas won't be
suited to projects, and some projects will fail to deliver the desired outcomes. A 100% coverage and
success rate is unrealistic, but the benefits that will be gained are expected to be important,
nonetheless.
28
Aspects of the NSW scheme have recently been revised as a consequence of a recent review by the NSW Auditor-General,
"Effectiveness of the Biodiversity Offsets Scheme", published 30 August 2022.
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A network of new biodiversity projects that grows year-on-year across Australia is likely to generate
a range of benefits, including (but not limited to):
• planting of additional perennial vegetation in areas that were previously bare and at risk of
erosion;
• water quality improvements from reduced runoff;
• reestablishment of critical ecosystem functions such as pollination ;
• added habitat for species that will allow space for them to recover and reproduce;
• sequestration of carbon in vegetation, soils, and wetlands;
• commitments to protecting unique or endangered existing habitat; and
• additional, diversified income streams for landholders, which may allow them stay on their
land and continue their primary agricultural business, supporting smaller enterprises and the
contribution they make to regional communities and economies.
Landholders29
The existence of a market that supports biodiversity projects supported financially by non-
government or private buyers has the potential to benefit a range of landholders, including farmers,
pastoralists, foresters, and Indigenous ranger groups who wany generate additional income streams
or other benefits to their core activities. Additional income may diversify their income sources and
increase their business and financial resilience. Depending upon the nature of the project the same
landholders may also directly benefit from other non-financial benefits such as increased shelter for
livestock and improved erosion control from planting of new vegetation areas, improved water
retention and carbon content of soils, and improved amenity.
Other landholders may dedicate the majority or the entirety of a property to the purpose of creating
biodiversity outcomes. This might represent a significant change in the use of the property,
management practices and the business model which may generate effects on neighbouring
properties and the broader community30. This has occurred in the market for carbon credits where
proponents have bought entire properties in less intensively farmed areas and revegetated or
'rested' large areas or the entire property to generating carbon credits.
Biodiversity projects are likely to require a more active than a passive approach to management, but
this will be determined by the nature of the approved methodologies and how they are applied in
each location. It's possible that some properties may be converted entirely to biodiversity projects
and that is entirely within the rights of the landholder or project proponent provided they have all
relevant approvals. The scale of the challenge of arresting the biodiversity decline and stabilising the
situation may necessitate this, but that is a decision for individual landholders.
Biodiversity is a public good, and projects have the potential to generate positive spill over effects on
neighbouring properties, the region and the broader community, and these effects may build over
time.
Costs to participate.
It is anticipated that landholders will have limited obligations in the event of a natural disturbance to
their project. Generally, landholders would be required to manage their projects to ensure
29
Landholders and project proponents could be the same, although the Bill recognises that they could be different parties. In this section
of the PIA, the term "landholder" can be interpreted as meaning the same as "project proponent".
30
Community impacts are addressed in a later section.
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vegetation and species are able to recover from such events (to the extent that is realistic and
possible). Different requirements may apply to projects involving particular species or eco-systems.
The market arrangements will have different rules in the event of a significant reversal of
biodiversity outcome due to intentional acts or omissions of the proponent that would ensure that
any purchaser of the related biodiversity certificate was made whole, through the provision of
equivalent biodiversity certificate or otherwise.
Financial, opportunity and economic costs
Choosing to participate in the market will come with two types of costs to a landholder. The first are
the upfront or on-ground costs to deliver a biodiversity project, which are not considered a
regulatory burden because they would be costed into the project itself during the development
phase. As a guide, information from the current Agriculture Stewardship pilots indicates that the
annual per- project implementation cost to landholders for projects meeting the criteria could range
from $65,000 to $175,000 on average over 10 years, but will vary considerably by region, scale and
type of project being implemented.
The voluntary nature of the scheme means that landholders would only proceed with a biodiversity
project if the expected benefits (financial and otherwise) exceed the costs of the project and provide
an acceptable return. Each landholder may have their own criteria for this calculation, and the
market arrangements need to have sufficient flexibility to accommodate a range of motivations.
Government will provide industry development support to landholders wishing to participate in the
market, such as tools, advice, and materials to assist them in assessing their potential costs and
benefit of running a project on their property. Landholders will be responsible for finding a buyer for
an awarded Biodiversity Certificate and deciding for themselves whether a sales agreement is
necessary before proceeding with the project and biodiversity outcomes are secured. The main
establishment cost for landholders will be the time involved in assessing the opportunity and
determining whether to proceed to develop and price the project.
The operational costs for a specific project will be determined by the methodology chosen, how it is
applied in a particular location, the scale of the project, and the management regime applied. It is
not possible to anticipate what those costs may be given the diversity of potential projects and
locations.
Regulatory burden
Each landholder or project proponent will incur administrative or in-kind costs to participate in the
scheme and which represent the regulatory burden of the scheme. These are costs that can be
avoided if landholders choose not to participate. These costs include costs related to preparing
applications, negotiating and securing consents to establish the project, implementation, and
ongoing monitoring and reporting costs. All landholders will incur some administrative and
regulatory costs associated with progressing a project, including:
• Application process: prospective project proponents will be required to submit an online
application form that includes relevant information, such as personal and company details,
information about how the proposed project is going to be undertaken, including which
project methodology, consents that have been achieved, and accompanying documents.
• Consent of eligible interest holders: to support the application process prospective
proponents may be required to obtain consent from interest holders such as lenders, non-
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exclusive native title holders, and any other parties with relevant rights over the proposed
project site.
• Reports: project proponents will be required to report on their project. Reporting periods
are being considered and would likely vary by protocol but could be every two to five years,
meaning there may be up to 5 reports over a 10-year period.
• Application for a Biodiversity Certificate: project proponents could be required to submit
one crediting application based on project reports once during the project period.
• Notices: project proponents will be required to notify the Commonwealth where certain
events occur. This could include a change in project proponent, a natural disturbance such
as bushfire or where the proponent ceases to be a fit and proper person (e.g., bankruptcy).
These notice obligations are unlikely to occur for all proponents - and it is assumed that
there will be an average of one notification requirement over the life of each project across
the scheme.
• Support for Commonwealth audit activity: as part of the market assurance process, DCCEEW
may commission an "annual audit program" where each year a small proportion of projects
would be subject to an external audit. While the financial cost of this type of audit would be
paid for by the Commonwealth, there may be in kind costs for proponents relating to
answering auditors' questions, providing documents and potentially escorting auditors
during site visits. It is estimated that on average, these audits will require approximately
eight hours of input from the landholder or project proponent. It should be emphasised that
not all projects would be audited, and that many Commonwealth audits would be
undertaken on projects where there are known or suspected compliance issues.
An estimate of preliminary administrative and regulatory costs is included in the table below,
assuming that around a quarter of all projects will be subject to audits over their project period. This
table excludes costs associated with Project Proponents researching, preparing, and submitting
project applications. This suggests an indicative estimate of the cost per project of $340 per annum
for Project Proponents to participate in project audits over a 10-year project life based on the
following breakdown:
Number of
Item Hours Cost per hour times Total cost
Application
process 4 $100.00 1 $400.00
Eligible
interest
holder
consent
issues 4 $100.00 1 $400.00
Reports 4 $100.00 5 $2,000.00
Application
for a
Biodiversity
Certificate 3 $100.00 1 $300.00
Notice costs 1 $100.00 1 $100.00
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Number of
Item Hours Cost per hour times Total cost
Support for
project
audit 8 $100.00 0.25 $200.00
Cost over
10-year life
of a single
project $3,400.00
Cost per
project per
year $340
Cumulative annual regulatory cost (assuming 500 live projects) $1,700,000
Where reasonable, project assurance will be supported through mechanisms like information
sharing between the CER and other Government agencies, and the use of geospatial data (consistent
with recent regulatory reforms under the CFI scheme). This is the approach that was practicable for
farmers participating in the Agricultural Biodiversity Stewardship Package where they are now not
required to undertake audits at their own expense, and there is no financial cost for undertaking
audits for these participants.
The Commonwealth will also develop online tools that allow participants to upload assurance
information as projects are undertaken at marginal cost. For example, allowing time and location
stamped photographs of planting to be uploaded at the time it occurs.
Despite this, it is possible that external audits paid for by participants would occur for a small
proportion of premium projects that lead to very specific outcomes such as population by specific
fauna.
Implications for rights over real property (land)
The policy position is based on the intent to create a market that allows the creation of an asset,
separate from the land, in the form of a Biodiversity Certificate, which will be personal property that
a Certificate holder can trade to another party for a financial consideration.
The intention of the scheme is that biodiversity projects would get noted on the title of the land
where they occur, but that the person who is registered as the proponent of the project on the
Register would be the one with the legal obligation to maintain the project, regardless of ownership
of the land.
The scheme will allow people who are not the current owners of the land to register a project on
behalf of the landholder with consent (as is currently allowed in the Australian carbon offsets
market). The intent is for the existence of the project to be recorded in a relevant land title system
so that interested parties, including future land purchasers, would be informed about any
constraints around future land use. Any regulatory enforcement actions would be taken against the
person registered as the proponent of the project.
In the event of a land sale, there would be provisions for the new owner to voluntarily take over as
the proponent of the project, but they would not be obligated to do so; this would have to be a
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matter of negotiation between a buyer and seller of a property and potentially the project
proponent.
Risks, unintended consequences, and perverse outcomes
The primary risk of this market-based approach is the potential impact of natural disasters on the
market and the temporary disturbance this can cause before the systems are able to recover. These
delivery risks will be considered when methods are being developed, and by the NRM Committee
advising on proposed methods.
Landholders would be required to make reasonable efforts to follow the obligations set out in the
biodiversity methodologies towards recovery, then the impact of natural disturbance would not be
interpreted as non-compliance against the project obligations.
Another risk is that participants in the market do not behave in line with the protocols or rules and
default on their obligations to maintain their projects. Or that the approved protocols and rules do
not fully incapable of fully delivering the desired outcomes, or even lead to perverse environmental
outcomes. These performance risks will also be considered when developing protocols, and by the
NRM Committee.
It is also possible the market may result in unanticipated outcomes. For example, buyer preferences
could favour certain types of landholders, certain types of projects or protocols, or certain regions of
Australia even if they are not the areas where the greatest biodiversity gains can be achieved. This
concentration or bias in the type of projects undertaken could constrain or skew the total
biodiversity gains for Australia. The take-up rate and cumulative outcomes delivered by the market
will be monitored and reported to the Minister on a periodic basis, accompanied by advice on
whether the market is performing as intended. Unanticipated outcomes will need to be assessed on
a case-by-case basis.
The legislation makes provision for the rules to specify excluded biodiversity projects. The purpose
of this provision is to enable the Minister to ensure that biodiversity projects do not have
unintended, adverse impacts. In deciding whether to make rules the Minister for the Environment
and Water will have to consider if there is a material risk that the kind of project would have a
material adverse impact on one or more of the following:
• the availability of water;
• biodiversity (other than the kinds of biodiversity addressed by the project);
• employment;
• the local community; and
• land access for agricultural production.
Other potential risks of a scheme include parties choosing not to participate, or participants
becoming disenchanted with the market. Some reasons for this might be:
• participation is perceived as too complex or burdensome;
• the price buyers are willing to pay is not high enough to compensate landholders for the
costs to deliver their projects;
• uncertainty over price or other benefits that that may be obtained by landholders and
project proponents;
• uncertainty around demand, or lack of buyers for specific project types; and
• distortion of market dynamics and operations arising from over or undersupply.
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261
Feedback from consultation
In August 2022 the Prime Minister and the Minister for the Environment and Water announced the
Government's intention to develop legislation to establish a market-based biodiversity certificate
scheme (subsequently referred to as the Nature Repair Market). The first round of consultation on
this market-based scheme was undertaken from August to October 2022, with more than 200
written submissions received, and multiple meetings with interested parties, States and Territory
governments, and First Nations groups.
The NRM Bill has been drafted to reflect these policy settings, and an Exposure Draft was released
for public comment at the end of 2022, concluding in early March 2023. More than 150 written
submissions were received, and multiple meetings with interested parties, States and Territories and
First Nations groups. Feedback highlighted that potential market participants often have conflicting
interests in how the market is designed and implemented, so the Bill carefully balances these
differing views. The operation of the Act will be subject to a statutory review every five years so
there is an ability to refine market arrangements moving forward to reflect how well the scheme is
addressing the original policy goals, and subsequent objectives that arise over time.
The primary feedback from the two rounds of consultation is as follows (including succinct
explanations as to how this feedback has informed the policy design):
1. Support for the intent for the market to drive additional private sector investment in
biodiversity outcomes.
2. Stakeholders noted the importance of the market focus on integrity and transparency. The
NRM bill has been drafted with a focus on integrity and transparency to build confidence in
the market and demonstrate biodiversity outcomes. This includes an independent advisory
committee, public consultation on methods and a public registry system to track projects
and use of certificates.
3. Recognition of the importance of Indigenous knowledge and participation of First Nations
groups in the market - these expectations were common to many respondents and have
been addressed by several features of the Bill and the scheme.
4. Interest in the Commonwealth playing an active role in supporting the market development
- such as providing national, regional, and local priorities, sharing the risks of participation,
purchasing certificates, providing a means to value certificates, and services to match buyers
and sellers. The current policy design is based on participants managing their own risks of
participation, with Government adopting a supporting role in providing supporting
information about the market and addressing barriers to participation. The government is
implementing on-ground support arrangements and continuing to invest in improvement
measurement techniques to drive down costs. Government will review its role as the market
develops.
5. A desire for harmonisation where possible with State and Territory schemes - the
Government has consulted with States and Territories at the Ministerial and Departmental
level and agreed to share lessons learnt from existing market-based approaches.
Environment ministers have also noted the need to collaborate on approaches to measuring
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biodiversity.
6. A desire to maximise participation on the supply side - the scope of the market is open to all
landholders and managers, and extends into Australia's coastal waters. Many landholders
see the potential for new and complementary income streams to their core business
activities, and many service providers see opportunities for business growth.
7. Mixed views as to whether it was preferable for the public or private sector to finance the
investment required to deliver the desired biodiversity outcomes - some stakeholders
expressed the view that the Commonwealth should re-assess its broad taxation and
spending priorities, and reallocate funds to support the investment the NRM is designed to
deliver. This is not the approach that is reflected in the policy design, but the feedback has
highlighted several other ways the Commonwealth could support participation in the
market, and these will be considered during the (next) implementation phase.
8. Views that a market-based approach would have to be underpinned by a variety of
measures that ensure market integrity, accountability of decision makers (including the
Minister), transparency and reporting - these expectations were effectively universal and
have been addressed by several features of the Bill and the scheme.
Further analysis of the feedback from consultation is still underway, and will be considered whilst
finalising the Bill, the development of subordinate legislation and other mechanisms enabled by the
market. This feedback will be published consistent with relevant policies (i.e., where people have
consented to publication etc).
Implementation and review
Implementation plan
A staged implementation is planned, whereby the Bill creates a framework for the market to be
established and administered, and the further detail about its commencement and operation is
captured in other legislative instruments that will be drafted and introduced after further
consultation. This will allow the CER to prepare to take on the regulation of the scheme and DCCEEW
to support the Minister in appointing the NRM Committee.
Ongoing consultation will focus on the key elements of the supporting legislative instruments that
will allow this market to have the greatest net benefit, such as making participation as easy as
practical, and encouraging the widest uptake by the private and public sectors. DCCEEW will
continue to draw on expertise and support provided by stakeholders, consultants, and experts in
biodiversity and the lessons learned from the Agriculture Stewardship pilot programs.
The Commonwealth Government will continue to work with the States and Territories to ensure
compatibility of the scheme with any overlapping programs in their jurisdictions to optimise and
streamline the options for landholders.
To mitigate any impacts of the introduction of the market, the Commonwealth has already
committed to work with the other governments to ensure as much consistency between the new
market and existing schemes as possible, and streamline the information and communication with
potential participants. This includes engagement on consistent approaches to measuring biodiversity
outcomes, approach to land titles and preventing any duplication of on ground assessment and
compliance and incorporating this into the scheme design.
263
States and Territories may need to investment time to understand how a national scheme might
intersect with their existing programs and land title registers. States and territories may face
questions from constituents about the scheme and how to participate, so education of other
governments will also be necessary to alleviate this potential burden. The Commonwealth will
support Natural Resource Management organisations as a source of information across regional
Australia. It will take time to reach to achieve alignment and involve some uncertainty in the interim.
These discussions are ongoing.
Evaluation of the recommended option
Establishing the market and facilitating the first tranche of projects will take some time, and the
measures of success during this establishment phase are activity based (e.g., passing of legislation,
being ready to receive applications, development, and approval of a series of methods).
It is envisaged that the market will have reached a level of maturity within ten years, reflecting the
following attributes which are relevant measures of success:
• a competitive and fair operating market;
• participants and the public have confidence in the outcomes of projects;
• a market that allows a level of comparison, and supports trading in biodiversity certificates;
and
• a framework that is contributing to measurable improvements to environmental outcomes
including biodiversity.
The Department intends to monitor progress rigorously throughout the implementation phase, and
there will be a formal statutory review of the operation of the Act five years after it commences, and
a second ten years later. The above measures of success will be relevant to both these reviews.
Implementation challenges and risks
The implementation of the proposed legislation has several high-level implementation challenges
and risks. These are discussed below.
Ensuring fit for purpose policy and regulatory settings
As an emerging market, it will be important to establish the correct framework settings for best
managing the biodiversity market. In developing draft legislation, DCCEEW will use the CFI Act as a
general model with its core themes of:
• codified processes for achieving environmental outcomes;
• the establishment of projects from willing proponents;
• the issuance of certificates for biodiversity outcomes ; and
• the Commonwealth Government taking responsibility for ensuring compliance through the
project, including over any permanence period.
There are many decisions to be made within these broad settings, and there is a real risk that some
of the initial settings could unintentionally inhibit the healthy development of the biodiversity
market. To address this issue, DCCEEW is undertaking three actions:
• engaging with experts and State and Territory government officials who have expertise and
experience in design and operation of environmental markets to develop the scheme;
264
• drafting a Bill that has sufficient flexibility to adjust settings through legislative rules - this is
an approach that has worked effectively in the CFI, and allows regulatory settings to be
adjusted to best meet the needs of a developing market; and
• subjecting the legislation to internal administrative review 24 months after the scheme
opens to applications, and a legislative review five years after the scheme opens to
applications.
Measurement of biodiversity and other outcomes
The cost-effectiveness of this market-based approach will be strongly influenced by the transaction
costs for participation in the program. The approach to the measurement of biodiversity is likely to
represent a large proportion of these costs31. The measurement of biodiversity, as far as possible,
will be based on a nationally consistent, spatially explicit classification scheme and approach to
condition assessment. While there is currently no nationally agreed approach to biodiversity
measurement that is 'fit for purpose' for a market-based approach , the development of the
measurement framework will assess, adapt and/or combine a range of existing approaches and
datasets to support the implementation of the program, including (but not limited to):
•
National Vegetation Information System (NVIS)
•
Australia's Terrestrial Ecosystem Research Network (TERN)
•
Ecosystem accounting, under the Australian Government's Strategy and Action Plan for
Environmental-Economic Accounting.
• Other environmental datasets held by DCCEEW.
A dataset with spatial and temporal resolution sufficient to discriminate change within the
ecosystem targeted by the project will be a key element of a measurement methodology. As with
other biodiversity programs, remote sensing datasets will be complemented by expert-driven field
assessment.
Ensuring effective administration of the legislation
The second challenge relates to ensuring that the legislation establishing the scheme is well
administered. As a new area of regulation for the Australian Government, there is a risk of legislation
being administered in a way that does not provide ideal market outcomes. This risk is being
addressed through consulting widely, and drawing upon the expertise, the day-to-day regulatory
powers and responsibilities being provided to the CER.
The CER is a well-established environmental regulator that has significant experience in regulating
land- based environmental projects32, strong compliance and enforcement arrangements, a register
of environmental auditors and an annual audit program. Perhaps most significantly, the CER acts as a
"market" regulator (as opposed to simply an environmental regulator). The CER is very experienced
at creating the environment for transparent markets supported by mechanisms to encourage
competition, and the frequent publication of market data that informs both buyers and sellers of
potential business opportunities.
31
OECD - Paying for Biodiversity (2010)
32
Consultation has highlighted early interest in carbon projects also being recognised for their biodiversity benefits, and these projects
would be registered as eligible offsets projects under the CFI Act.
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Management of implementation risks
A detailed assessment of implementation risks will be undertaken after feedback on the Exposure
Draft has been considered, and the Bill is finalised. The main measures of mitigating implementation
risks rely upon four elements of the policy position and market design:
Nationally consistent, robust • The methodologies developed to define the requirements projects must
methodologies for biodiversity address to deliver specific biodiversity outcomes will be evidence-based
projects and will ensure consistency in application regardless of where the project
is undertaken.
• Methodologies will be developed, and then reviewed and refined with
the NRM Committee before recommendations are made to the Minister
An independent expert advisory • The NRM Committee will include members with suitable expertise and
group experience in working in ecosystem markets, and will advise on the
methodologies for biodiversity projects, and the associated
implementation framework.
• This group will make a significant contribution to ensuring the market
can have a high level of confidence in the biodiversity outcomes
recognised in an issued Biodiversity Certificate
Minister excludes ineligible • The Bill allows the Minister to exclude ineligible projects, and delegate
projects this power to the Regulator.
• This gives the Minister (and their delegate) the capacity to recognise the
risks of unintended consequences and perverse outcomes and avoid or
minimise these to the extent possible.
The market regulator - the CER • The Bill addresses the role of the Regulator in receiving, assessing,
granting, and registering project applications, their role in managing
compliance, and their responsibility for completing project-specific and
system audits.
Review
DCCEEW will monitor and review the new legislation on an ongoing basis through the ongoing
consultation it has committed to. Careful consideration will be given to the feedback from potential
future participants and buyers in the biodiversity market and the States and Territories that may be
impacted by it.
DCCEEW will make any necessary changes to the supporting legislative instruments to incorporate
this advice and will have ample opportunity to respond and amend accordingly.
Given the uncertainties associated with creating a new property right and market, a Post
Implementation Review will be undertaken within 2 years from commencement of the Legislation.
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