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This is a Bill, not an Act. For current law, see the Acts databases.
2022-2023
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Nature Repair Market Bill 2023
No. , 2023
(Climate Change, Energy, the Environment and Water)
A Bill for an Act to establish a national voluntary
framework for projects to enhance or protect
biodiversity, and for other purposes
No. , 2023
Nature Repair Market Bill 2023
i
Contents
Part 1--Preliminary
1
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 2
3
Objects of this Act ............................................................................. 2
4
Simplified outline of this Act ............................................................ 3
5
Crown to be bound ............................................................................ 4
6
Extension to external Territories ....................................................... 5
7
Definitions ......................................................................................... 5
8
Vacancy in the office of a Nature Repair Market Committee
member ............................................................................................ 18
9
Electronic notice transmitted to the Regulator ................................. 18
Part 2--Registered biodiversity projects
19
Division 1--Introduction
19
10
Simplified outline of this Part .......................................................... 19
Division 2--Registration of biodiversity project
20
11
Application for approval of registration of biodiversity
project .............................................................................................. 20
12
Form of application ......................................................................... 20
13
Further information ......................................................................... 22
14
Withdrawal of application ............................................................... 22
15
Approval of registration of biodiversity project .............................. 23
16
Suspension of processing of applications for registrations of
biodiversity projects ........................................................................ 27
17
Registration may be subject to condition about obtaining
regulatory approvals ........................................................................ 28
18
Registration may be subject to condition about obtaining
consents from eligible interest holders ............................................ 29
18A
Registration may be subject to condition about obtaining
consent from registered native title body corporate ......................... 30
Division 3--Variation of registration
32
19
Voluntary variation of registration of biodiversity project--
change in identity of project proponent ........................................... 32
20
Voluntary variation of registration of biodiversity project--
changes in project area etc. .............................................................. 33
21
Voluntary variation of conditional registration of
biodiversity project--condition of registration has been met .......... 34
22
Procedures for voluntary variation of registration of
biodiversity project .......................................................................... 35
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Nature Repair Market Bill 2023
No. , 2023
Division 4--Cancellation of registration of biodiversity project
37
Subdivision A--Voluntary cancellation of registration of
biodiversity project
37
23
Voluntary cancellation of registration of biodiversity
project--certificate in effect ............................................................ 37
24
Voluntary cancellation of registration of biodiversity
project--no certificate in effect ....................................................... 38
25
Procedures for voluntary cancellation of registration of
biodiversity project .......................................................................... 38
Subdivision B--Unilateral cancellation of registration of
biodiversity project
40
26
Unilateral cancellation of registration of biodiversity
project--condition of registration has not been met ........................ 40
27
Unilateral cancellation of registration of biodiversity
project--project not commenced, or unlikely to result in
issuing of biodiversity certificate ..................................................... 40
28
Unilateral cancellation of registration of biodiversity
project--eligibility requirements not met etc. ................................. 41
29
Unilateral cancellation of registration of biodiversity
project--project proponent ceases to be a fit and proper
person .............................................................................................. 41
30
Unilateral cancellation of registration of biodiversity
project--project proponent ceases to exist etc. ................................ 42
31
Unilateral cancellation of registration of biodiversity
project--false or misleading information ........................................ 43
32
Notice of unilateral cancellation of registration of
biodiversity project .......................................................................... 44
Subdivision C--Cancellation of registration of biodiversity
project at the end of the permanence period for
the project
44
32A
Cancellation of registration of biodiversity project at the end
of the permanence period for the project ......................................... 44
Division 5--Excluded biodiversity projects
45
33
Excluded biodiversity projects ........................................................ 45
Division 6--Permanence period
46
34
Permanence period .......................................................................... 46
Part 3--Multiple project proponents
50
Division 1--Introduction
50
35
Simplified outline of this Part .......................................................... 50
Division 2--References to project proponents
51
No. , 2023
Nature Repair Market Bill 2023
iii
36
References to project proponents ..................................................... 51
Division 3--Nominee of multiple project proponents
52
37
Nomination of nominee by multiple project proponents--
nomination accompanying application ............................................ 52
38
Nomination of nominee by multiple project proponents--
other nominations ............................................................................ 53
39
Revocation and cessation of nomination ......................................... 53
40
Service of documents on nominee ................................................... 54
41
Eligible voluntary action taken by nominee .................................... 54
42
Unilateral cancellation of registration of biodiversity
project--failure of multiple project proponents to nominate a
nominee ........................................................................................... 55
Division 4--Obligations of multiple project proponents
57
43
Obligations of multiple project proponents ..................................... 57
Part 4--Methodology determinations
58
Division 1--Introduction
58
44
Simplified outline of this Part .......................................................... 58
Division 2--Methodology determinations
59
Subdivision A--Making of methodology determinations
59
45
Methodology determinations ........................................................... 59
46
Civil penalties--requirements in methodology determination ........ 62
47
Procedure for making a methodology determination ....................... 63
Subdivision B--Variation of methodology determinations
65
48
Variation of methodology determinations ....................................... 65
49
When variation takes effect ............................................................. 66
Subdivision C--Duration, expiry and revocation of methodology
determinations
69
50
Duration of methodology determinations ........................................ 69
51
Revocation of methodology determinations .................................... 70
52
Consequences of methodology determination ceasing to have
effect ................................................................................................ 71
53
Effect of methodology determination ceasing to have
effect--applications for registration ................................................ 73
Subdivision D--Advice about making, varying or revoking
methodology determinations
74
54
Advice by the Nature Repair Market Committee ............................ 74
55
Additional matters for the Nature Repair Market Committee
to take into account .......................................................................... 76
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Nature Repair Market Bill 2023
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Subdivision E--Consultation by the Nature Repair Market
Committee
77
56
Consultation by the Nature Repair Market Committee .................... 77
Division 3--Biodiversity integrity standards
79
57
Biodiversity integrity standards ....................................................... 79
Division 4--Biodiversity assessment instruments
82
Subdivision A--Making of biodiversity assessment instruments
82
58
Biodiversity assessment instruments ............................................... 82
59
Procedure for making a biodiversity assessment instrument ........... 82
Subdivision B--Variation of biodiversity assessment instruments
84
60
Variation of biodiversity assessment instruments ............................ 84
61
Procedure for varying a biodiversity assessment instrument ........... 84
Subdivision C--Revocation of biodiversity assessment
instruments
86
62
Revocation of biodiversity assessment instruments ......................... 86
63
Procedure for revoking a biodiversity assessment instrument ......... 86
Subdivision D--Advice about making, varying or revoking
biodiversity assessment instruments
88
64
Advice by the Nature Repair Market Committee ............................ 88
65
Consultation by the Nature Repair Market Committee .................... 90
65A
Additional matters for the Nature Repair Market Committee
to take into account .......................................................................... 91
Part 5--Biodiversity certificates
92
Division 1--Introduction
92
66
Simplified outline of this Part .......................................................... 92
Division 2--Issue of biodiversity certificates
93
67
Application for biodiversity certificate ............................................ 93
68
Form of application ......................................................................... 93
69
Further information ......................................................................... 94
70
Issue of biodiversity certificate ........................................................ 95
70A
Correction of biodiversity certificate ............................................... 96
71
Basis on which biodiversity certificates are issued .......................... 96
Division 3--Property in biodiversity certificates
98
72
A biodiversity certificate is personal property ................................. 98
73
Ownership of biodiversity certificate .............................................. 98
74
Transmission of biodiversity certificates ......................................... 98
75
Registration of equitable interests in relation to biodiversity
certificates ....................................................................................... 99
No. , 2023
Nature Repair Market Bill 2023
v
76
Equitable interests in relation to biodiversity certificates ................ 99
Division 4--Cancellation of biodiversity certificate at the end of
the permanence period for a registered biodiversity
project
100
77
Cancellation of biodiversity certificate at the end of the
permanence period for a registered biodiversity project ................ 100
Division 5--Cancellation of biodiversity certificate if registration
of registered biodiversity project is cancelled
101
77A
Cancellation of biodiversity certificate if registration of
registered biodiversity project is cancelled .................................... 101
Part 6--Purchase of biodiversity certificates by the
Commonwealth
102
Division 1--Introduction
102
78
Simplified outline of this Part ........................................................ 102
Division 2--Biodiversity conservation contracts
103
79
Biodiversity conservation contracts ............................................... 103
80
When biodiversity conservation contracts may be entered
into................................................................................................. 103
81
Secretary has powers etc. of the Commonwealth .......................... 104
82
Conferral of powers on the Secretary ............................................ 104
Division 3--Biodiversity conservation purchasing processes
105
83
Biodiversity conservation purchasing process ............................... 105
84
Conduct of biodiversity conservation purchasing processes .......... 105
Division 4--Miscellaneous
107
85
Rules may provide for certain matters relating to purchased
biodiversity certificates.................................................................. 107
86
Certain instruments relating to Commonwealth procurement
are not applicable ........................................................................... 107
87
Biodiversity conservation contracts are not instruments made
under this Act ................................................................................ 107
Part 7--Interests in land
108
Division 1--Introduction
108
88
Simplified outline of this Part ........................................................ 108
Division 2--Eligible interest in an area of land
109
89
Eligible interest in an area of land--Torrens system land ............. 109
90
Eligible interest in an area of land--Crown land that is not
Torrens system land ....................................................................... 111
92
Eligible interest in an area of land--Aboriginal land council ........ 113
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Nature Repair Market Bill 2023
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Division 3--Freehold land rights land
114
93
Regulator to notify Crown lands Minister of approval of
registration of biodiversity project ................................................. 114
Division 4--Entries in title registers
115
94
Entries in title registers--general .................................................. 115
95
Entries in title registers--biodiversity maintenance areas ............. 115
Part 8--Fit and proper person
116
96
Simplified outline of this Part ........................................................ 116
97
Fit and proper person--individuals ............................................... 116
98
Fit and proper person--corporations ............................................. 118
99
Fit and proper person--trusts ........................................................ 121
99A
Fit and proper person--non-corporate government bodies ............ 124
Part 9--Reporting and notification requirements
127
Division 1--Introduction
127
100
Simplified outline of this Part ........................................................ 127
Division 2--Reporting requirements
128
Subdivision A--Category A biodiversity project reports
128
101
Category A biodiversity project reports--first report .................... 128
102
Category A biodiversity project reports--subsequent reports ....... 128
103
Requirements for category A biodiversity project reports ............. 130
Subdivision B--Category B biodiversity project reports
132
104
Category B biodiversity project reports ......................................... 132
Subdivision C--Alternative assurance agreements
134
104A
Alternative assurance agreements .................................................. 134
Division 3--Notification requirements
136
105
Notification requirement--project proponent ceases to have
right to carry out project ................................................................ 136
106
Notification requirement--withdrawal or cessation of
regulatory approval ........................................................................ 137
107
Notification requirement--death of project proponent .................. 137
108
Notification requirement--methodology determinations .............. 138
109
Notification requirement--reversal of biodiversity outcome ........ 138
110
Notification requirement--event or conduct that causes, or is
likely to cause, reversal of biodiversity outcome ........................... 139
111
Significant reversals in biodiversity outcomes--notification
requirements .................................................................................. 140
112
Notification requirement--event relevant to whether a
project proponent is a fit and proper person .................................. 140
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Nature Repair Market Bill 2023
vii
113
Notification requirement--variation of project plan ...................... 142
114
The rules may impose notification requirements ........................... 143
Part 10--Information-gathering powers
144
115
Simplified outline of this Part ........................................................ 144
116
Regulator may obtain information or documents .......................... 144
117
Copying documents--compensation ............................................. 145
118
Copies of documents ..................................................................... 145
119
Regulator may retain documents ................................................... 145
Part 11--Audits
147
Division 1--Introduction
147
120
Simplified outline of this Part ........................................................ 147
Division 2--Audits
148
121
Compliance audits ......................................................................... 148
122
Other audits ................................................................................... 150
123
Information-gathering of audit team leaders and persons
assisting audit team leaders ........................................................... 151
Division 3--Audit information
153
Subdivision A--Information
153
124
Meaning of
audit information
........................................................ 153
125
Meaning of
protected audit information
........................................ 153
Subdivision B--Secrecy
154
126
Secrecy--protected audit information ........................................... 154
Subdivision C--Disclosure or use of audit information
154
127
Disclosure or use for purposes of carrying out biodiversity
audit or preparing biodiversity audit report etc. ............................. 154
128
Disclosure to the Regulator ........................................................... 155
129
Disclosure to Minister etc. ............................................................. 155
130
Disclosure to the Secretary etc. ..................................................... 155
131
Disclosure to reduce serious risk to life or health of
individual ....................................................................................... 156
132
Disclosure to reduce serious risk to the environment .................... 156
133
Disclosure to a court, tribunal etc .................................................. 156
134
Disclosure of publicly available information ................................. 157
135
Disclosure with consent ................................................................. 157
136
Disclosure to person to whom audit information relates ............... 157
137
Disclosure to person who provided audit information ................... 157
138
Disclosure of statistics ................................................................... 157
Part 12--Deposit of biodiversity certificates with the Regulator
158
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Nature Repair Market Bill 2023
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139
Simplified outline of this Part ........................................................ 158
140
Application to approve the deposit of a biodiversity
certificate with the Regulator......................................................... 158
141
Approval of deposit of a biodiversity certificate with the
Regulator ....................................................................................... 159
142
Deposit of a biodiversity certificate with the Regulator ................ 159
Part 13--Relinquishment requirements
161
Division 1--Introduction
161
143
Simplified outline of this Part ........................................................ 161
Division 2--Relinquishment notices
162
144
Relinquishment notice--false or misleading information ............. 162
146
Relinquishment notice--reversal of biodiversity outcome
other than due to natural disturbance or conduct etc. ..................... 163
147
Relinquishment notice--reversal of biodiversity outcome
due to natural disturbance or conduct and no mitigation
happens .......................................................................................... 163
147A
Relinquishment notice--circumstances prescribed by the
rules ............................................................................................... 164
148
Significant reversals in biodiversity outcomes--
relinquishment requirements ......................................................... 165
149
Form and content of relinquishment notice ................................... 165
Division 3--Complying with a relinquishment notice
166
150
Requirement for compliance with relinquishment notice .............. 166
151
Compliance with relinquishment requirement--relinquishing
equivalent biodiversity certificate or certificates ........................... 168
152
How biodiversity certificates are relinquished............................... 169
Part 14--Biodiversity maintenance declarations
171
Division 1--Introduction
171
153
Simplified outline of this Part ........................................................ 171
Division 2--Biodiversity maintenance declarations
172
154
Biodiversity maintenance declaration ............................................ 172
155
Civil penalty for carrying out declared prohibited activity ............ 174
156
When a biodiversity maintenance declaration ceases to be in
force ............................................................................................... 174
157
Variation or revocation of biodiversity maintenance
declaration ..................................................................................... 175
158
Revocation of biodiversity maintenance declaration--
voluntary relinquishment of biodiversity certificate ...................... 177
Part 15--Registers
179
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Nature Repair Market Bill 2023
ix
Division 1--Introduction
179
160
Simplified outline of this Part ........................................................ 179
Division 2--Biodiversity Market Register
180
161
Biodiversity Market Register ......................................................... 180
162
Entries in the Register--registered biodiversity projects and
former registered biodiversity projects .......................................... 180
163
Requests for information about project area not to be set out
in the Register ................................................................................ 182
163A
Requests for information about a project not to be set out in
the Register .................................................................................... 184
164
Entries in the Register--biodiversity certificates .......................... 186
165
Entries in the Register--accounts for holding biodiversity
certificates ..................................................................................... 186
166
Suspension of operation of the Register ........................................ 186
167
Rules may make provision in relation to the Register ................... 187
168
Use and disclosure of information obtained from the Register ...... 188
Division 3--Online platform
190
169
Online Platform ............................................................................. 190
Part 16--Publication of information
191
Division 1--Introduction
191
170
Simplified outline of this Part ........................................................ 191
Division 2--Information about biodiversity certificates
192
171
Information about biodiversity certificates .................................... 192
172
Reports about activities of Regulator ............................................. 192
173
Publication of concise description of the characteristics of
biodiversity certificates.................................................................. 192
Division 3--Information about biodiversity certificates
purchased by the Commonwealth
194
174
Information about biodiversity conservation purchasing
processes ........................................................................................ 194
175
Annual reports about purchases of biodiversity certificates .......... 194
Division 4--Information about relinquishment requirements
196
176
Information about relinquishment requirements ............................ 196
177
Information about relinquished certificates ................................... 197
Part 17--Record-keeping and project monitoring requirements
198
Division 1--Introduction
198
178
Simplified outline of this Part ........................................................ 198
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Nature Repair Market Bill 2023
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Division 2--Record-keeping requirements
199
179
Record-keeping requirements--general ........................................ 199
180
Record-keeping requirements--preparation of biodiversity
project report ................................................................................. 199
181
Record-keeping requirements--methodology determinations ....... 200
Division 3--Project monitoring requirements
201
182
Project monitoring requirements--methodology
determinations ............................................................................... 201
Part 18--Enforcement
202
Division 1--Introduction
202
183
Simplified outline of this Part ........................................................ 202
184
Appointment of inspectors ............................................................. 202
Division 2--Monitoring powers
204
185
Monitoring powers ........................................................................ 204
186
Modifications of Part 2 of the Regulatory Powers Act .................. 205
Division 3--Investigation powers
208
187
Investigation powers ...................................................................... 208
188
Modifications of Part 3 of the Regulatory Powers Act .................. 209
Division 4--Civil penalty provisions
212
189
Civil penalty provisions ................................................................. 212
Division 5--Infringement notices
214
190
Infringement notices ...................................................................... 214
Division 6--Enforceable undertakings
216
191
Enforceable undertakings .............................................................. 216
Division 7--Injunctions
218
192
Injunctions ..................................................................................... 218
Part 19--Nature Repair Market Committee
220
Division 1--Introduction
220
193
Simplified outline of this Part ........................................................ 220
Division 2--Establishment and functions of the Nature Repair
Market Committee
221
194
Nature Repair Market Committee.................................................. 221
195
Functions of the Nature Repair Market Committee ....................... 221
195A
Request for review of methodology determinations ...................... 222
196
Nature Repair Market Committee may obtain advice .................... 223
No. , 2023
Nature Repair Market Bill 2023
xi
196A
Nature Repair Market Committee must publish outcomes of
reviews .......................................................................................... 223
Division 3--Membership of the Nature Repair Market
Committee
224
197
Membership of the Nature Repair Market Committee................... 224
198
Appointment of Nature Repair Market Committee members ........ 224
199
Period for appointment for Nature Repair Market Committee
members ........................................................................................ 225
200
Acting Nature Repair Market Committee members ...................... 226
201
Procedures ..................................................................................... 227
202
Disclosure of interests to the Minister ........................................... 228
203
Disclosure of interests to the Nature Repair Market
Committee ..................................................................................... 228
204
Other paid work ............................................................................. 229
205
Remuneration ................................................................................ 229
206
Leave of absence ........................................................................... 229
207
Resignation .................................................................................... 229
208
Termination of appointment .......................................................... 230
209
Other terms and conditions ............................................................ 231
210
Assistance to Nature Repair Market Committee ............................ 231
210A
Application of the finance law ....................................................... 231
Part 20--Review of decisions
232
Division 1--Introduction
232
211
Simplified outline of this Part ........................................................ 232
Division 2--Decisions of the Regulator
233
212
Reviewable decisions .................................................................... 233
213
Notice of decision and reconsideration rights to be given--
decisions made by delegates of the Regulator ............................... 234
214
Applications for reconsideration of decisions made by
delegates of the Regulator ............................................................. 235
215
Reconsideration by the Regulator .................................................. 235
216
Deadline for reconsideration.......................................................... 236
217
Review by the Administrative Appeals Tribunal ........................... 236
Part 21--Miscellaneous
237
218
Simplified outline of this Part ........................................................ 237
219
Miscellaneous functions of the Regulator...................................... 237
220
Treatment of trusts ......................................................................... 238
221
Rules may provide for voluntary accreditation of advisers
etc. ................................................................................................. 238
xii
Nature Repair Market Bill 2023
No. , 2023
222
Information previously given to the Regulator .............................. 239
223
Delegation by the Minister ............................................................ 239
224
Delegation by the Secretary ........................................................... 240
225
Concurrent operation of State and Territory laws .......................... 240
226
Law relating to legal professional privilege not affected ............... 241
227
Arrangements with States and Territories ...................................... 241
228
Liability for damages ..................................................................... 241
229
Executive power of the Commonwealth ........................................ 242
230
Notional payments by the Commonwealth .................................... 242
231
Compensation for acquisition of property ..................................... 242
232
Native title rights not affected ....................................................... 243
233
Racial Discrimination Act not affected.......................................... 243
234
Administrative decisions under the rules ....................................... 243
235
Revocation or variation of instruments .......................................... 243
236
Review of operation of this Act etc. .............................................. 243
237
Rules .............................................................................................. 245
No. , 2023
Nature Repair Market Bill 2023
1
A Bill for an Act to establish a national voluntary
1
framework for projects to enhance or protect
2
biodiversity, and for other purposes
3
The Parliament of Australia enacts:
4
Part 1--Preliminary
5
6
1 Short title
7
This Act is the
Nature Repair Market Act 2023.
8
Part 1
Preliminary
Section 2
2
Nature Repair Market Bill 2023
No. , 2023
2 Commencement
1
(1) Each provision of this Act specified in column 1 of the table
2
commences, or is taken to have commenced, in accordance with
3
column 2 of the table. Any other statement in column 2 has effect
4
according to its terms.
5
6
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
7
enacted. It will not be amended to deal with any later amendments of
8
this Act.
9
(2) Any information in column 3 of the table is not part of this Act.
10
Information may be inserted in this column, or information in it
11
may be edited, in any published version of this Act.
12
3 Objects of this Act
13
The objects of this Act are:
14
(a) to promote the enhancement or protection of biodiversity in
15
native species in Australia; and
16
(b) to contribute to meeting Australia's international obligations
17
in relation to biodiversity; and
18
(c) to promote engagement and co-operation of market
19
participants (including Aboriginal persons and Torres Strait
20
Islanders, governments, the community, landholders and
21
private enterprise) in the enhancement or protection of
22
biodiversity in native species in Australia; and
23
(d) to:
24
(i) support and promote the unique role of Aboriginal
25
persons and Torres Strait Islanders in enhancing and
26
protecting biodiversity in native species in Australia;
27
and
28
Preliminary
Part 1
Section 4
No. , 2023
Nature Repair Market Bill 2023
3
(ii) enable the use of the knowledge of Aboriginal persons
1
and Torres Strait Islanders related to biodiversity in
2
native species in Australia, guided by the owners of that
3
knowledge; and
4
(e) to contribute to building a knowledge base, and capacity,
5
related to the enhancement or protection of biodiversity in
6
native species in Australia.
7
4 Simplified outline of this Act
8
A biodiversity project is a project to enhance or protect
9
biodiversity in native species.
10
An eligible person may apply for a biodiversity project to be
11
registered on the Biodiversity Market Register. To be registered, a
12
biodiversity project must meet various requirements, including
13
requirements:
14
(a)
to be carried out by one or more project proponents
15
(including the applicant) who are fit and proper persons;
16
and
17
(b)
to be covered by a methodology determination.
18
Methodology determinations are legislative instruments that cover
19
particular kinds of biodiversity projects, and set out how a project
20
is to be carried out and the circumstances in which a biodiversity
21
certificate will be issued for a project.
22
The Minister may make a biodiversity assessment instrument that
23
prescribes requirements to be complied with by methodology
24
determinations.
25
A biodiversity certificate represents the biodiversity outcome that a
26
registered biodiversity project is designed to achieve. Biodiversity
27
certificates are the property of their registered holders, and may be
28
transferred.
29
This Act imposes certain obligations on project proponents. These
30
obligations include:
31
Part 1
Preliminary
Section 5
4
Nature Repair Market Bill 2023
No. , 2023
(a)
obligations to comply with requirements in the
1
methodology determination that covers a project; and
2
(b)
reporting and notification obligations; and
3
(c)
record-keeping and monitoring obligations.
4
The Biodiversity Market Register holds entries for each registered
5
biodiversity project and each biodiversity certificate.
6
This Act is administered by the Minister and the Clean Energy
7
Regulator. The Regulator has a range of powers available to
8
enforce the obligations of a project proponent, including the
9
following:
10
(a)
civil penalties (some of which apply only after a
11
biodiversity certificate has been issued for a project);
12
(b)
other powers under the Regulatory Powers Act;
13
(c)
powers to require projects to be audited;
14
(d)
powers to require project proponents to relinquish
15
biodiversity certificates;
16
(e)
the power to make a biodiversity maintenance
17
declaration that prohibits certain activities in a project
18
area.
19
This Act also contains provisions for:
20
(a)
the establishment of the Nature Repair Market
21
Committee to advise the Minister in relation to the
22
Minister's functions under this Act; and
23
(b)
biodiversity integrity standards which a methodology
24
determination must meet; and
25
(c)
internal review of decisions under the Act, and review
26
by the Administrative Appeals Tribunal.
27
5 Crown to be bound
28
(1) This Act binds the Crown in each of its capacities.
29
(2) This Act does not make the Crown liable to a pecuniary penalty or
30
to be prosecuted for an offence.
31
Preliminary
Part 1
Section 6
No. , 2023
Nature Repair Market Bill 2023
5
(3) The protection in subsection (2) does not apply to an authority of
1
the Crown.
2
(4) The protection in subsection (2) does not apply in relation to:
3
(a) subsection 150(5); or
4
(b) section 155.
5
6 Extension to external Territories
6
This Act extends to every external Territory.
7
7 Definitions
8
In this Act:
9
Aboriginal land council
, for an area of land, means a body
10
corporate that:
11
(a) is established under an Act of the Commonwealth, a State or
12
a Territory for the purpose of holding, for the benefit of
13
Aboriginal persons or Torres Strait Islanders:
14
(i) title to land vested in it by or under that Act; or
15
(ii) an estate or interest in land granted under that Act; and
16
(b) has functions relating to land that under a law of the
17
Commonwealth, a State or a Territory is land rights land; and
18
(c) consists of Aboriginal persons or Torres Strait Islanders who:
19
(i) live in an area to which one or more of the body's
20
functions relate; or
21
(ii) are registered as traditional owners of land in an area to
22
which one or more of the body's functions relate; or
23
(iii) have an association with an area to which one or more
24
of the body's functions relate if the Aboriginal persons
25
or Torres Strait Islanders are accepted as members of
26
the land council on the basis of that association.
27
Aboriginal person
has the same meaning as in the
Aboriginal and
28
Torres Strait Islander Act 2005
.
29
activity period
of a registered biodiversity project means the
30
activity period identified in the notice of approval of registration
31
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under paragraph 15(7)(d), subject to any variation under rules
1
made for the purposes of paragraph 20(1)(c).
2
alternative assurance agreement
: see subsection 104A(2).
3
area
means:
4
(a) an area of land; or
5
(b) an area of Australian waters; or
6
(c) an area that is a combination of land and Australian waters.
7
audit information
has the meaning given by section 124.
8
audit team leader
means a registered greenhouse and energy
9
auditor appointed under any of the following provisions:
10
(a) paragraph 12(3)(a);
11
(b) paragraph 68(1)(e);
12
(c) paragraph 103(1)(d);
13
(d) paragraph 103(1)(e);
14
(e) paragraph 104(3)(d);
15
(f) paragraph 104(3)(e);
16
(g) paragraph 121(2)(a);
17
(h) subsection 122(1).
18
Australia
, when used in a geographical sense, includes the external
19
Territories.
20
Australian waters
means:
21
(a) the territorial sea of Australia; or
22
(b) the waters of the sea on the landward side of the territorial
23
sea of Australia; or
24
(c) the territorial sea of each external Territory; or
25
(d) the waters of the sea on the landward side of the territorial
26
sea of each external Territory; or
27
(e) inland waters.
28
biodiversity
means the variability among living organisms from all
29
sources (including terrestrial, marine and other aquatic ecosystems
30
and the ecological complexes of which they are part) and includes:
31
(a) diversity within species and between species; and
32
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7
(b) diversity of ecosystems.
1
biodiversity assessment instrument
means an instrument under
2
section 58.
3
biodiversity audit
means:
4
(a) an audit under section 121 or 122; or
5
(b) an audit carried out for the purposes of preparing an audit
6
report prescribed by the rules or a methodology
7
determination for the purposes of any of the following
8
provisions:
9
(i) paragraph 12(3)(a);
10
(ii) paragraph 68(1)(e);
11
(iii) paragraph 103(1)(d);
12
(iv) paragraph 103(1)(e);
13
(v) paragraph 104(3)(d);
14
(vi) paragraph 104(3)(e).
15
biodiversity audit report
means:
16
(a) an audit report under section 121 or 122; or
17
(b) an audit report prescribed by the rules or a methodology
18
determination for the purposes of any of the following
19
provisions:
20
(i) paragraph 12(3)(a);
21
(ii) paragraph 68(1)(e);
22
(iii) paragraph 103(1)(d);
23
(iv) paragraph 103(1)(e);
24
(v) paragraph 104(3)(d);
25
(vi) paragraph 104(3)(e).
26
biodiversity certificate
means a certificate issued under section 70.
27
biodiversity conservation contract
: see section 79.
28
biodiversity conservation contractor
: see section 79.
29
biodiversity conservation purchasing process
: see section 83.
30
biodiversity integrity standards
: see section 57.
31
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biodiversity maintenance area
, in relation to a biodiversity
1
maintenance declaration: see subsection 154(1).
2
biodiversity maintenance declaration
means a declaration made
3
by the Regulator under subsection 154(1).
4
biodiversity outcome
, in relation to a biodiversity project, means
5
the enhancement or protection of biodiversity that the project is
6
designed to achieve.
7
biodiversity project
means a project, carried out in a particular
8
area, that is designed to enhance or protect biodiversity in native
9
species (whether the effect on biodiversity occurs within or outside
10
the area).
11
biodiversity project report
means:
12
(a) a category A biodiversity project report; or
13
(b) a category B biodiversity project report.
14
body corporate under external administration
means:
15
(a) a Chapter 5 body corporate; or
16
(b) a body corporate that has a corresponding status under a law
17
of a foreign country.
18
category A biodiversity project report
: see sections 101 and 102.
19
category B biodiversity project report
: see section 104.
20
Chapter 5 body corporate
has the same meaning as in the
21
Corporations Act 2001
.
22
civil penalty order
has the same meaning as in the Regulatory
23
Powers Act.
24
civil penalty provision
has the same meaning as in the Regulatory
25
Powers Act.
26
Commonwealth Register account
means a Register account kept
27
in the name of the Commonwealth.
28
corporation
means:
29
(a) a body corporate; or
30
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Nature Repair Market Bill 2023
9
(b) a corporation sole.
1
covers
: a methodology determination
covers
a registered
2
biodiversity project if the entry for the project in the Register states
3
that the methodology determination covers the project.
4
Crown land
means land that is the property of:
5
(a) the Commonwealth, a State or a Territory; or
6
(b) a statutory authority of:
7
(i) the Commonwealth; or
8
(ii) a State; or
9
(iii) a Territory.
10
For this purpose, it is immaterial whether the land is:
11
(c) subject to a lease or licence; or
12
(d) covered by a reservation, proclamation, dedication,
13
condition, permission or authority, made or conferred by the
14
Commonwealth, the State or the Territory; or
15
(e) covered by the making, amendment or repeal of legislation of
16
the Commonwealth, the State or the Territory under which
17
the whole or a part of the land is to be used for a public
18
purpose or public purposes; or
19
(f) held on trust for the benefit of another person; or
20
(g) subject to native title.
21
Crown lands Minister
:
22
(a) in relation to a State--means the Minister of the State who,
23
under the rules, is taken to be the Crown lands Minister of
24
the State; or
25
(b) in relation to the Northern Territory--means the Minister of
26
the Northern Territory who, under the rules, is taken to be the
27
Crown lands Minister of the Northern Territory; or
28
(c) in relation to the Australian Capital Territory--means the
29
Minister of the Australian Capital Territory who, under the
30
rules, is taken to be the Crown lands Minister of the
31
Australian Capital Territory; or
32
(d) in relation to a Territory other than the Northern Territory or
33
the Australian Capital Territory--means the person who,
34
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Section 7
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Nature Repair Market Bill 2023
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under the rules, is taken to be the Crown lands Minister of
1
the Territory.
2
declared prohibited activity
, in relation to a biodiversity
3
maintenance area, means an activity specified under
4
subsection 154(4) in relation to the biodiversity maintenance area.
5
deposited with the Regulator
, when used in relation to a
6
biodiversity certificate, has the meaning given by section 142.
7
director
includes a constituent member of a body corporate
8
incorporated for a public purpose by a law of the Commonwealth,
9
a State or a Territory.
10
electronic notice transmitted to the Regulator
has the meaning
11
given by section 9.
12
eligible interest
, in relation to an area of land, has the meaning
13
given by section 89, 90 or 92.
14
eligible person
means any of the following:
15
(a) an individual;
16
(b) a body corporate;
17
(c) a trust;
18
(d) a corporation sole;
19
(e) a body politic;
20
(f) a local governing body.
21
eligible voluntary action
means:
22
(a) making an application; or
23
(b) giving information in connection with an application; or
24
(c) withdrawing an application; or
25
(d) giving a notice (including an electronic notice); or
26
(e) making a submission; or
27
(f) making a request; or
28
(g) giving information in connection with a request;
29
to the Regulator, where the application, information, notice,
30
submission or request is permitted, but not required, to be made,
31
given or withdrawn, as the case may be, under this Act.
32
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Nature Repair Market Bill 2023
11
engage in conduct
means:
1
(a) do an act; or
2
(b) omit to perform an act.
3
excluded biodiversity project
: see section 33.
4
exclusive possession native title area
means a native title area,
5
where the native title confers a right of exclusive possession over
6
the area.
7
executive officer
of a corporation means:
8
(a) a director of the corporation; or
9
(b) the chief executive officer (however described) of the
10
corporation; or
11
(c) the chief financial officer (however described) of the
12
corporation; or
13
(d) the secretary of the corporation.
14
Federal Court
means the Federal Court of Australia.
15
fit and proper person
has a meaning affected by sections 97, 98,
16
99 and 99A.
17
freehold land rights land
means land, where:
18
(a) a freehold estate exists over the land, and the grant of the
19
freehold estate took place under a law of a State or a
20
Territory that makes provision for the grant of such things
21
only to, or for the benefit of, Aboriginal persons or Torres
22
Strait Islanders; or
23
(b) a freehold estate exists over the land, and the grant of the
24
freehold estate took place under a law of the Commonwealth
25
that makes provision for the grant of such things only to, or
26
for the benefit of, Aboriginal persons or Torres Strait
27
Islanders; or
28
(c) the land is vested in a person, and the vesting took place
29
under a law of the Commonwealth that makes provision for
30
the vesting of land only in, or for the benefit of, Aboriginal
31
persons or Torres Strait Islanders.
32
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Nature Repair Market Bill 2023
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holder
of a biodiversity certificate means the person recorded in
1
the Register as the holder of the certificate.
2
indigenous land use agreement
has the same meaning as in the
3
Native Title Act 1993
.
4
inland waters
means waters within Australia other than waters of
5
the sea.
6
inspector
means a person appointed as an inspector under
7
section 184.
8
land rights land
means land where:
9
(a) a freehold estate exists, or a lease is in force, over the land,
10
where the grant of the freehold estate or lease took place
11
under legislation that makes provision for the grant of such
12
things only to, or for the benefit of, Aboriginal persons or
13
Torres Strait Islanders; or
14
(b) the land is vested in a person, where the vesting took place
15
under legislation that makes provision for the vesting of land
16
only in, or for the benefit of, Aboriginal persons or Torres
17
Strait Islanders; or
18
(c) neither paragraph (a) nor (b) applies, and the land is held
19
expressly for the benefit of, or is held in trust expressly for
20
the benefit of, Aboriginal persons or Torres Strait Islanders;
21
or
22
(d) the land is reserved expressly for the benefit of Aboriginal
23
persons or Torres Strait Islanders; or
24
(e) the land is specified in the rules.
25
This definition does not apply to the definition of
Aboriginal land
26
council
or to section 92.
27
Note:
For specification by class, see subsection 13(3) of the
Legislation Act
28
2003
.
29
lease
, in relation to land rights land, includes:
30
(a) a lease enforceable in equity; and
31
(b) a contract that contains a statement to the effect that it is a
32
lease; and
33
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13
(c) anything that, at or before the time of its creation, is, for any
1
purpose, by a law of the Commonwealth, a State or a
2
Territory, declared to be or described as a lease.
3
maintained project
, in relation to a biodiversity maintenance
4
declaration: see paragraph 154(1)(a).
5
methodology determination
means a determination under
6
subsection 45(1).
7
National Native Title Register
has the same meaning as in the
8
Native Title Act 1993
.
9
native title
has the same meaning as in the
Native Title Act 1993
.
10
native title area
: an area is a
native title area
if there is an entry on
11
the National Native Title Register specifying that native title exists
12
in relation to the area.
13
natural disturbance
, in relation to a registered biodiversity project,
14
means any of the following events, where the event could not
15
reasonably be prevented by the project proponent for the project:
16
(a) flood;
17
(b) bushfire;
18
(c) drought;
19
(d) pest attack;
20
(e) disease;
21
(f) an event specified in the rules.
22
Nature Repair Market Committee
means the committee
23
established by section 194.
24
Nature Repair Market Committee member
means a member of the
25
Nature Repair Market Committee, and includes the Chair of the
26
Nature Repair Market Committee.
27
non-corporate government body
means:
28
(a) a body politic; or
29
(b) a local governing body that is not a corporation.
30
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Preliminary
Section 7
14
Nature Repair Market Bill 2023
No. , 2023
paid work
means work for financial gain or reward (whether as an
1
employee, a self-employed person or otherwise).
2
permanence period
of a registered biodiversity project means the
3
permanence period that:
4
(a) is identified in the notice of approval of registration under
5
paragraph 15(7)(d), subject to any variation under rules made
6
for the purposes of paragraph 20(1)(d); and
7
(b) complies with section 34.
8
prescribed
law
, when used in a provision of this Act, means a law
9
prescribed by the rules for the purposes of that provision.
10
project
includes a set of activities.
11
project area
, in relation to:
12
(a) a biodiversity project; or
13
(b) a registered project under a related scheme;
14
means the area, or areas, on or in which the project has been, is
15
being, or is to be carried out.
16
project plan
, in relation to a biodiversity project, means a plan that:
17
(a) sets out how the project is intended to be carried out; and
18
(b) sets out how the project is intended to achieve the
19
biodiversity outcome for the project; and
20
(c) is consistent with the methodology determination that covers,
21
or is proposed to cover, the project; and
22
(d) includes such information (if any) as is specified in the rules
23
or the methodology determination that covers, or is proposed
24
to cover, the project; and
25
(e) complies with such requirements (if any) as are specified in
26
the rules or the methodology determination that covers, or is
27
proposed to cover, the project.
28
project proponent
, in relation to a registered biodiversity project,
29
means:
30
(a) the eligible person who is recorded in the Register as the
31
project proponent for the project; or
32
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15
(b) each of the eligible persons who are recorded in the Register
1
as a project proponent for the project.
2
Note:
For projects with multiple project proponents, see Part 3.
3
protected audit information
has the meaning given by section 125.
4
Register
means the Biodiversity Market Register kept by the
5
Regulator under subsection 161(1).
6
registered biodiversity project
means a biodiversity project that is
7
registered on the Register (other than a former registered
8
biodiversity project in relation to which information is set out in
9
the Register under rules made for the purposes of
10
subsection 162(5)).
11
registered greenhouse and energy auditor
has the same meaning
12
as in the
National Greenhouse and Energy Reporting Act 2007
.
13
registered indigenous land use agreement
means an indigenous
14
land use agreement the details of which are entered on the Register
15
of Indigenous Land Use Agreements.
16
registered native title body corporate
has the same meaning as in
17
the
Native Title Act 1993
.
18
registered project under a related scheme
means a project that is:
19
(a) declared as an eligible offsets project under the
Carbon
20
Credits (Carbon Farming Initiative) Act 2011
;
or
21
(b) registered (however described) under a prescribed law of the
22
Commonwealth, a State or a Territory.
23
Register of Indigenous Land Use Agreements
has the same
24
meaning as in the
Native Title Act 1993
.
25
Regulator
means the Clean Energy Regulator.
26
Note:
The Clean Energy Regulator is established by the
Clean Energy
27
Regulator Act 2011
.
28
regulatory approval
, in relation to a biodiversity project, means an
29
approval, licence or permit (however described) that:
30
(a) relates to the project or to an element of the project; and
31
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Section 7
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Nature Repair Market Bill 2023
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(b) is required under a law of the Commonwealth (other than this
1
Act), a State or a Territory that relates to:
2
(i) land use or development; or
3
(ii) the environment; or
4
(iii) water.
5
Regulatory Powers Act
means the
Regulatory Powers (Standard
6
Provisions) Act 2014
.
7
relevant land registration official
:
8
(a) in relation to a biodiversity project that:
9
(i) is or was a registered biodiversity project; and
10
(ii) is wholly or partly situated in a State or Territory;
11
means the Registrar of Titles or other proper officer of the
12
State or Territory in which the project area is wholly or partly
13
situated; or
14
(b) in relation to an area that is or was a biodiversity
15
maintenance area--means the Registrar of Titles or other
16
proper officer of the State or Territory in which the area is
17
wholly or partly situated.
18
relinquishment equivalence requirements
: see subsection 151(2).
19
relinquishment notice
means a notice given by the Regulator
20
under any of the following provisions:
21
(a) subsection 144(2) (false or misleading information);
22
(b) subsection 146(2) (reversal of biodiversity outcome other
23
than due to natural disturbance or conduct etc.);
24
(c) subsection 147(2) (reversal of biodiversity outcome due to
25
natural disturbance or conduct and no mitigation happens);
26
(d) subsection 147A(2) (circumstances prescribed by the rules).
27
reviewable decision
has the meaning given by section 212.
28
rules
means rules made under section 237.
29
Secretary
means the Secretary of the Department.
30
statutory authority
of the Commonwealth, a State or a Territory,
31
means an authority or body (including a corporation sole)
32
Preliminary
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No. , 2023
Nature Repair Market Bill 2023
17
established by or under a law of the Commonwealth, the State or
1
the Territory (other than a general law allowing incorporation as a
2
company or body corporate), but does not include:
3
(a) an Aboriginal Land Trust established under the
Aboriginal
4
Land Rights (Northern Territory) Act 1976
; or
5
(b) the Wreck Bay Aboriginal Community Council established
6
by the
Aboriginal Land Grant (Jervis Bay Territory) Act
7
1986
; or
8
(c) a corporation registered under the
Corporations (Aboriginal
9
and Torres Strait Islander) Act 2006
; or
10
(d) an authority or body that is:
11
(i) established by or under a law of the Commonwealth, a
12
State or a Territory; and
13
(ii) specified in the rules.
14
this Act
(except in sections 1, 2, 45 and 237) includes the following
15
provisions:
16
(a) the provisions of a legislative instrument made under this
17
Act;
18
(b) sections 134.1, 134.2, 135.1, 135.2, 135.4, 136.1, 137.1 and
19
137.2 of the
Criminal Code
, in so far as those sections relate
20
to:
21
(i) this Act; or
22
(ii) a legislative instrument made under this Act.
23
Torrens system land
: land is
Torrens system land
if the title to the
24
land is registered under a Torrens system of registration.
25
Torres Strait Islander
has the same meaning as in the
Aboriginal
26
and Torres Strait Islander Act 2005
.
27
type A permanence period
: see section 34.
28
type B permanence period
: see section 34.
29
type C permanence period
: see section 34.
30
vacancy
, in relation to the office of a Nature Repair Market
31
Committee member, has a meaning affected by section 8.
32
Part 1
Preliminary
Section 8
18
Nature Repair Market Bill 2023
No. , 2023
8 Vacancy in the office of a Nature Repair Market Committee
1
member
2
For the purposes of a reference in:
3
(a) this Act to a
vacancy
in the office of a Nature Repair Market
4
Committee member; or
5
(b) the
Acts Interpretation Act 1901
to a
vacancy
in the
6
membership of a body;
7
there are taken to be 4 offices of Nature Repair Market Committee
8
member in addition to the Chair of the Committee.
9
9 Electronic notice transmitted to the Regulator
10
(1) For the purposes of this Act, a notice is an
electronic notice
11
transmitted to the Regulator
if, and only if:
12
(a) the notice is transmitted to the Regulator by means of an
13
electronic communication; and
14
(b) if the Regulator requires that the notice be transmitted, in
15
accordance with particular information technology
16
requirements, by means of a particular kind of electronic
17
communication--the Regulator's requirement has been met;
18
and
19
(c) the notice complies with rules made for the purposes of
20
subsection (2).
21
(2) The rules may make provision for or in relation to the security and
22
authenticity of notices transmitted to the Regulator by means of an
23
electronic communication.
24
(3) Rules made for the purposes of subsection (2) may deal with:
25
(a) encryption; and
26
(b) authentication of identity.
27
(4) Subsection (3) does not limit subsection (2).
28
(5) This section does not, by implication, limit the regulations that may
29
be made under the
Electronic Transactions Act 1999
.
30
Registered biodiversity projects
Part 2
Introduction
Division 1
Section 10
No. , 2023
Nature Repair Market Bill 2023
19
Part 2--Registered biodiversity projects
1
Division 1--Introduction
2
10 Simplified outline of this Part
3
The Regulator may, if certain criteria are satisfied, register a
4
biodiversity project on application by an eligible person who is to
5
be the project proponent, or one of the project proponents, of the
6
project.
7
Division 3 provides for the registration of a registered biodiversity
8
project to be varied.
9
Division 4 provides for the registration of a registered biodiversity
10
project to be cancelled, either:
11
(a)
voluntarily, with different procedures applying
12
depending on whether a biodiversity certificate has been
13
issued; or
14
(b)
unilaterally by the Regulator, if the project or the project
15
proponent does not satisfy certain conditions and
16
requirements.
17
Division 5 provides for the rules to prescribe certain kinds of
18
biodiversity projects as excluded biodiversity projects, which may
19
not be registered.
20
Division 6 provides for the duration of a permanence period for a
21
registered biodiversity project.
22
Part 2
Registered biodiversity projects
Division 2
Registration of biodiversity project
Section 11
20
Nature Repair Market Bill 2023
No. , 2023
Division 2--Registration of biodiversity project
1
11 Application for approval of registration of biodiversity project
2
(1) An eligible person may apply to the Regulator for the Regulator to
3
approve the registration of a biodiversity project on the Register.
4
Note 1:
The applicant will be registered as the project proponent, or one of the
5
project proponents, for the project.
6
Note 2:
The Regulator has a function of providing advice and assistance in
7
relation to the making of applications: see section 219.
8
(2) However, applications under subsection (1) may be made only on
9
or after a day determined by the Minister by legislative instrument.
10
12 Form of application
11
(1) An application must:
12
(a) be in writing; and
13
(b) be in a form approved, in writing, by the Regulator.
14
(2) An application must:
15
(a) specify the proposed project area; and
16
(b) if the project is to have more than one project proponent--
17
specify the eligible persons who are proposed to be the
18
project proponents along with the applicant; and
19
(c) specify the methodology determination (the
applicable
20
methodology determination
) that is proposed to cover the
21
project; and
22
(d) specify the proposed activity period (if any), which must be
23
worked out in accordance with the applicable methodology
24
determination; and
25
(e) specify the proposed permanence period, which, subject to
26
subsection 34(2), must be:
27
(i) a type A permanence period; or
28
(ii) a type B permanence period; or
29
(iii) a type C permanence period; and
30
Registered biodiversity projects
Part 2
Registration of biodiversity project
Division 2
Section 12
No. , 2023
Nature Repair Market Bill 2023
21
(f) include such other information as is specified in the rules;
1
and
2
(g) include such other information as is specified in the
3
applicable methodology determination.
4
(3) An application must be accompanied by:
5
(a) if the rules or the applicable methodology determination
6
provides that this paragraph applies to the proposed project--
7
an audit report that is:
8
(i) prescribed by the rules or the applicable methodology
9
determination (as the case requires); and
10
(ii) prepared by a registered greenhouse and energy auditor
11
who has been appointed as an audit team leader for the
12
purpose; and
13
(b) if there are to be project proponents other than the
14
applicant--evidence that each other project proponent
15
consents to being a project proponent for the project; and
16
(c) if a registered indigenous land use agreement is relevant to
17
the Regulator's decision on the application--a copy of
18
relevant parts of the agreement; and
19
(d) if the applicable methodology determination provides that
20
there must be a project plan for a project covered by the
21
methodology determination--a project plan for the project;
22
and
23
(e) such other documents (if any) as are specified in the rules;
24
and
25
(f) such other documents (if any) as are specified in the
26
applicable methodology determination; and
27
(g) the fee (if any) specified in the rules.
28
(4) The approved form of application may provide for verification by
29
statutory declaration of statements in applications.
30
(5) A fee specified under paragraph (3)(g) must not be such as to
31
amount to taxation.
32
Registered native title body corporate
33
(6) If:
34
Part 2
Registered biodiversity projects
Division 2
Registration of biodiversity project
Section 13
22
Nature Repair Market Bill 2023
No. , 2023
(a) the applicant is a native title holder for an exclusive
1
possession native title area; and
2
(b) the proposed project area consists of, or includes, the
3
exclusive possession native title area; and
4
(c) there is a registered native title body corporate for the
5
exclusive possession native title area; and
6
(d) the applicant is not the registered native title body corporate;
7
the application must specify the registered native title body
8
corporate as an eligible person who is proposed to be a project
9
proponent along with the applicant.
10
(7) However, subsection (6) does not apply if the registered native title
11
body corporate declares, by written notice given to the applicant,
12
that the registered native title body corporate does not consent to
13
being specified as a project proponent along with the applicant.
14
(8) Subsection (6) does not prevent a person (other than the registered
15
native title body corporate) from being specified as an eligible
16
person who is proposed to be a project proponent along with the
17
applicant.
18
13 Further information
19
(1) The Regulator may, by written notice given to an applicant, require
20
the applicant to give the Regulator, within the period specified in
21
the notice, further information in connection with the application.
22
(2) If the applicant breaches the requirement, the Regulator may, by
23
written notice given to the applicant:
24
(a) refuse to consider the application; or
25
(b) refuse to take any action, or any further action, in relation to
26
the application.
27
14 Withdrawal of application
28
(1) An applicant may withdraw the application at any time before the
29
Regulator makes a decision on the application.
30
(2) If the applicant does so, this Act does not prevent the applicant
31
from making a fresh application.
32
Registered biodiversity projects
Part 2
Registration of biodiversity project
Division 2
Section 15
No. , 2023
Nature Repair Market Bill 2023
23
(3) If:
1
(a) the applicant withdraws the application; and
2
(b) the applicant has paid a fee in relation to the application;
3
the Regulator must, on behalf of the Commonwealth, refund the
4
application fee.
5
15 Approval of registration of biodiversity project
6
Scope
7
(1) This section applies if an application under section 11 has been
8
made for the Regulator to approve the registration of a biodiversity
9
project.
10
Approval
11
(2) After considering the application, the Regulator may decide to:
12
(a) approve the registration of the biodiversity project, and
13
register the project on the Register; or
14
(b) refuse to approve the registration of the biodiversity project.
15
Note:
For review of decisions, see Part 20.
16
(3) The Regulator must give written notice of a decision under
17
subsection (2) to:
18
(a) the applicant; and
19
(b) if:
20
(i) the decision is a decision to approve the registration of
21
the biodiversity project; and
22
(ii) there is a relevant land registration official in relation to
23
the biodiversity project;
24
the relevant land registration official.
25
Criteria for approval
26
(4) The Regulator must not approve the registration of the biodiversity
27
project unless the Regulator is satisfied that:
28
(a) the project is being, or is to be, carried on in Australia; and
29
Part 2
Registered biodiversity projects
Division 2
Registration of biodiversity project
Section 15
24
Nature Repair Market Bill 2023
No. , 2023
(b) the project is of a kind specified, for the purposes of
1
paragraph 45(1)(a), in the methodology determination (the
2
applicable methodology determination
) that is specified in
3
the application under paragraph 12(2)(c); and
4
(c) the activity period (if any) for the project has been worked
5
out in accordance with the applicable methodology
6
determination; and
7
(d) the permanence period for the project complies with
8
section 34; and
9
(e) the project meets any conditions set out in the applicable
10
methodology determination under paragraph 45(1)(b); and
11
(f) if the applicable methodology determination requires that
12
there must be a project plan for the project:
13
(i) there is a project plan for the project; and
14
(ii) implementation of the project plan is likely to result in a
15
biodiversity certificate being issued in respect of the
16
project; and
17
(g) if the applicable methodology determination does not require
18
that there must be a project plan for the project--carrying out
19
the project is likely to result in a biodiversity certificate being
20
issued in respect of the project; and
21
(h) the applicant is to be registered as the project proponent, or
22
one of the project proponents, for the project; and
23
(i) the proposed project proponent, or each of the proposed
24
project proponents, is an eligible person; and
25
(j) the proposed project proponent, or each of the proposed
26
project proponents, is a fit and proper person; and
27
(k) the project area meets the requirements set out in
28
subsection (5); and
29
(l) the project area does not consist of, or include, a biodiversity
30
maintenance area or part of a biodiversity maintenance area;
31
and
32
(m) the requirements set out in subsection (6) have been met in
33
relation to the project; and
34
(n) the project meets the eligibility requirements (if any)
35
specified in the rules; and
36
(o) the project is not an excluded biodiversity project.
37
Registered biodiversity projects
Part 2
Registration of biodiversity project
Division 2
Section 15
No. , 2023
Nature Repair Market Bill 2023
25
Note 1:
Methodology determinations are made under section 45.
1
Note 2:
For
excluded biodiversity project
, see section 33.
2
Note 3:
For
fit and proper person
, see sections 97, 98, 99 and 99A.
3
(5) The requirements mentioned in paragraph (4)(k) are:
4
(a) the project area is, or is a combination of:
5
(i) Torrens system land; or
6
(ii) Crown land; or
7
(iii) Australian waters; and
8
(b) the project area is not specified in the rules.
9
(6) The requirements mentioned in paragraph (4)(m) are:
10
(a) if the project area consists of, or includes, Torrens system
11
land:
12
(i) the proposed project proponent, or a proposed project
13
proponent, holds an estate in fee simple in the Torrens
14
system land that is covered by subsection 89(2); or
15
(ii) the proposed project proponent, or a proposed project
16
proponent, holds a legal estate or interest (other than an
17
estate in fee simple) in the Torrens system land that is
18
covered by subsection 89(2) and that is prescribed by
19
the rules; or
20
(iii) the proposed project proponent, or a proposed project
21
proponent, holds a lease of the Torrens system land and
22
the terms of the lease are consistent with the project
23
being carried out on the land; or
24
(iv) a person who holds an estate in fee simple in the
25
Torrens system land that is covered by subsection 89(2)
26
has consented to the carrying out of the project on the
27
land as a registered biodiversity project by the proposed
28
project proponent or proposed project proponents; or
29
(v) a person who holds a legal estate or interest (other than
30
an estate in fee simple) in the Torrens system land that
31
is covered by subsection 89(2) and that is prescribed by
32
the rules has consented to the carrying out of the project
33
on the land as a registered biodiversity project by the
34
proposed project proponent or proposed project
35
proponents; and
36
Part 2
Registered biodiversity projects
Division 2
Registration of biodiversity project
Section 15
26
Nature Repair Market Bill 2023
No. , 2023
(b) if:
1
(i) the project area is, or includes, a native title area; and
2
(ii) there is a registered native title body corporate for the
3
native title area;
4
then:
5
(iii) the proposed project proponent, or a proposed project
6
proponent, is the registered native title body corporate;
7
or
8
(iv) the registered native title body corporate has consented
9
to the carrying out of the project on or in the native title
10
area as a registered biodiversity project by the proposed
11
project proponent or proposed project proponents; or
12
(v) the registered native title body corporate has consented
13
to the registration of the project.
14
Matters to be included in notice
15
(7) If the Regulator approves the registration of the biodiversity
16
project, the notice must:
17
(a) set out, in accordance with the rules, the project area; and
18
(b) set out the project proponent or project proponents for the
19
project; and
20
(c) set out the applicable methodology determination; and
21
(d) set out the activity period (if any) and the permanence period
22
for the project; and
23
(e) if the registration is subject to a condition under section 17,
24
18 or 18A--set out the condition; and
25
(f) set out such attributes of the project as are specified in the
26
rules; and
27
(g) set out such other matters (if any) as are specified in the
28
rules.
29
Timing
30
(8) The Regulator must take all reasonable steps to ensure that a
31
decision is made on the application:
32
(a) if the Regulator requires the applicant to give further
33
information under subsection 13(1) in relation to the
34
Registered biodiversity projects
Part 2
Registration of biodiversity project
Division 2
Section 16
No. , 2023
Nature Repair Market Bill 2023
27
application--within 90 days after the applicant gave the
1
Regulator the information; or
2
(b) otherwise--within 90 days after the application was made.
3
When approval takes effect
4
(9) If the Regulator approves the registration of the biodiversity
5
project, the approval takes effect on the day after the notice of
6
approval is given to the applicant.
7
16 Suspension of processing of applications for registrations of
8
biodiversity projects
9
Order
10
(1) The Minister may, by legislative instrument, order that, if:
11
(a) an application is made under section 11 during a specified
12
period; and
13
(b) the application relates to a biodiversity project that is
14
proposed to be covered by a methodology determination
15
specified in the order;
16
the Regulator must not:
17
(c) consider the application during that period; or
18
(d) make a decision on the application during that period.
19
(2) A period specified in an order under subsection (1):
20
(a) must start at the commencement of the order; and
21
(b) must not be longer than 12 months.
22
(3) The Minister may make an order under subsection (1) that relates
23
to a particular methodology determination only if the Nature
24
Repair Market Committee has advised the Minister that the
25
Committee is satisfied that there is reasonable evidence that the
26
methodology determination does not comply with one or more of
27
the biodiversity integrity standards.
28
(4) The Nature Repair Market Committee may give the Minister
29
advice for the purposes of subsection (3):
30
(a) on the Committee's own initiative; or
31
Part 2
Registered biodiversity projects
Division 2
Registration of biodiversity project
Section 17
28
Nature Repair Market Bill 2023
No. , 2023
(b) on request by the Minister.
1
(5) If the Nature Repair Market Committee gives the Minister advice
2
for the purposes of subsection (3), the Department must publish the
3
advice on the Department's website (whether or not the Minister
4
follows the advice).
5
(6) To avoid doubt, Subdivisions D (advice about making, varying or
6
revoking methodology determinations) and E (consultation by the
7
Nature Repair Market Committee) of Division 2 of Part 4 do not
8
apply to advice given by the Committee under subsection (4) of
9
this section.
10
Compliance with order
11
(7) The Regulator must comply with an order under subsection (1).
12
Timing of decision on application
13
(8) If an application made under section 11 is or was covered by an
14
order under subsection (1) of this section, subsection 15(8) (timing
15
of decision on application) does not apply to the application.
16
17 Registration may be subject to condition about obtaining
17
regulatory approvals
18
Scope
19
(1) This section applies if:
20
(a) an application under section 11 has been made for the
21
Regulator to approve the registration of a biodiversity
22
project; and
23
(b) the Regulator decides to approve the registration of the
24
biodiversity project under section 15; and
25
(c) the Regulator is not satisfied that all regulatory approvals
26
have been obtained for the project.
27
Condition
28
(2) The Regulator must set out in the notice under subsection 15(3)
29
that the registration is subject to the condition that a biodiversity
30
Registered biodiversity projects
Part 2
Registration of biodiversity project
Division 2
Section 18
No. , 2023
Nature Repair Market Bill 2023
29
certificate is not to be issued in respect of the project until all
1
regulatory approvals are obtained for the project.
2
18 Registration may be subject to condition about obtaining
3
consents from eligible interest holders
4
Scope
5
(1) This section applies if:
6
(a) an application under section 11 has been made for the
7
Regulator to approve the registration of a biodiversity
8
project; and
9
(b) the Regulator decides under section 15 to approve the
10
registration of the biodiversity project; and
11
(c) the Regulator is satisfied that there are one or more persons
12
(the
relevant interest-holders
) who:
13
(i) hold an eligible interest in the project area, or any part
14
of the project area, for the project; and
15
(ii) have not consented, in writing, to the making of the
16
application.
17
Condition
18
(2) The Regulator must set out in the notice under subsection 15(3)
19
that the registration is subject to the condition that a biodiversity
20
certificate is not to be issued in respect of the project until the
21
written consent of each relevant interest-holder to the registration
22
is obtained.
23
Consents
24
(3) A consent mentioned in subparagraph (1)(c)(ii) or subsection (2)
25
must be in a form approved, in writing, by the Regulator.
26
(4) A consent mentioned in subparagraph (1)(c)(ii) or subsection (2)
27
may be set out in a registered indigenous land use agreement.
28
(5) Subsection (3) does not apply to a consent mentioned in
29
subparagraph (1)(c)(ii) or subsection (2) if the consent is set out in
30
a registered indigenous land use agreement.
31
Part 2
Registered biodiversity projects
Division 2
Registration of biodiversity project
Section 18A
30
Nature Repair Market Bill 2023
No. , 2023
18A Registration may be subject to condition about obtaining
1
consent from registered native title body corporate
2
Scope
3
(1) This section applies if:
4
(a) an application under section 11 has been made for the
5
Regulator to approve the registration of a biodiversity
6
project; and
7
(b) the Regulator decides under section 15 to approve the
8
registration of the biodiversity project; and
9
(c) the Regulator is satisfied that:
10
(i) the project area for the biodiversity project is or
11
includes a native title area; and
12
(ii) there is a registered native title body corporate for the
13
native title area; and
14
(iii) the registered native title body corporate has consented
15
to the registration of the biodiversity project; and
16
(iv) the registered native title body corporate has not
17
consented, in writing, to the carrying out of the project
18
on or in the native title area as a registered biodiversity
19
project by the project proponent.
20
Condition
21
(2) The Regulator must set out in the notice under subsection 15(3)
22
that the registration is subject to the condition that a biodiversity
23
certificate is not to be issued in respect of the project until the
24
written consent of the registered native title body corporate is
25
obtained to the carrying out of the project on or in the native title
26
area as a registered biodiversity project by the project proponent.
27
Consents
28
(3) A consent mentioned in subparagraph (1)(c)(iv) or subsection (2)
29
must be in a form approved, in writing, by the Regulator.
30
(4) A consent mentioned in subparagraph (1)(c)(iv) or subsection (2)
31
may be set out in a registered indigenous land use agreement.
32
Registered biodiversity projects
Part 2
Registration of biodiversity project
Division 2
Section 18A
No. , 2023
Nature Repair Market Bill 2023
31
(5) Subsection (3) does not apply to a consent mentioned in
1
subparagraph (1)(c)(iv) or subsection (2) if the consent is set out in
2
a registered indigenous land use agreement.
3
Part 2
Registered biodiversity projects
Division 3
Variation of registration
Section 19
32
Nature Repair Market Bill 2023
No. , 2023
Division 3--Variation of registration
1
19 Voluntary variation of registration of biodiversity project--
2
change in identity of project proponent
3
(1) The rules may make provision for and in relation to empowering
4
the Regulator to vary the registration of a registered biodiversity
5
project to:
6
(a) add an eligible person as a project proponent of the project;
7
or
8
(b) remove a project proponent from the project (so long as this
9
would not result in there not being any project proponents for
10
the project).
11
Note 1:
See also section 22 (procedures for voluntary variation of registration
12
of biodiversity project).
13
Note 2:
For review of decisions, see Part 20.
14
(2) Rules made for the purposes of subsection (1) must not empower
15
the Regulator to vary a registration unless:
16
(a) the project proponent for the project applies to the Regulator
17
for the variation; and
18
(b) any eligible person that is to be added as a project proponent
19
for the project consents, in writing, to the variation; and
20
(c) the Regulator is satisfied that any eligible person that is to be
21
added as a project proponent for the project is a fit and proper
22
person; and
23
(d) if a biodiversity certificate is in effect in relation to the
24
project, and the project proponent for the project is not the
25
holder of the certificate--the holder of the certificate has
26
been notified of the proposed variation, and has been given
27
the opportunity to make submissions in relation to the
28
proposed variation.
29
Note:
For
fit and proper person
, see sections 97, 98, 99 and 99A.
30
(3) Rules made for the purposes of subsection (1) may empower the
31
Regulator to require the Commonwealth to be given security in
32
relation to the fulfilment of any requirements to relinquish
33
Registered biodiversity projects
Part 2
Variation of registration
Division 3
Section 20
No. , 2023
Nature Repair Market Bill 2023
33
biodiversity certificates that may be imposed under Part 13 in
1
relation to the project (whether or not the circumstances that may
2
result in a relinquishment notice being given exist at the time the
3
variation is made).
4
(4) Rules made for the purposes of subsection (1) may empower the
5
Regulator to refuse an application to remove a project proponent
6
from a registered biodiversity project unless the Regulator is
7
satisfied that the remaining project proponents would have the
8
capability and resources to carry out the project.
9
20 Voluntary variation of registration of biodiversity project--
10
changes in project area etc.
11
(1) The rules may make provision for and in relation to empowering
12
the Regulator to vary the registration of a registered biodiversity
13
project in respect of any of the following:
14
(a) the project area;
15
(b) the methodology determination that covers the project;
16
(c) the project's activity period (if any);
17
(d) the project's permanence period.
18
Note 1:
See also section 22 (procedures for voluntary variation of registration
19
of biodiversity project).
20
Note 2:
See also section 34 (permanence period).
21
Note 3:
For review of decisions, see Part 20.
22
(2) The methodology determination that is to cover a registered
23
biodiversity project as a result of a variation under rules made for
24
the purposes of paragraph (1)(b) of this section:
25
(a) must be in force at the time the variation of the project's
26
registration takes effect; and
27
(b) applies to the project subject to any variations under
28
section 48 that take effect before the variation of the project's
29
registration takes effect.
30
This subsection has effect despite rules made for the purposes of
31
subsection 49(2), (3) or (4) (when variation of a methodology
32
determination takes effect) and rules made for the purposes of
33
Part 2
Registered biodiversity projects
Division 3
Variation of registration
Section 21
34
Nature Repair Market Bill 2023
No. , 2023
section 52 (consequences of methodology determination ceasing to
1
have effect).
2
(3) Rules made for the purposes of subsection (1) must not empower
3
the Regulator to vary a registration unless:
4
(a) the project proponent for the project applies to the Regulator
5
for the variation; and
6
(b) if a biodiversity certificate is in effect for the project, and the
7
project proponent is not the holder of the certificate--either:
8
(i) the holder of the certificate has consented, in writing, to
9
the variation; or
10
(ii) the Regulator is satisfied that the variation would not
11
result in a material change to the certificate.
12
21 Voluntary variation of conditional registration of biodiversity
13
project--condition of registration has been met
14
(1) The rules may make provision for and in relation to empowering
15
the Regulator to vary the registration of a registered biodiversity
16
project to remove any of the following conditions to which the
17
registration is subject:
18
(a) a condition mentioned in subsection 17(2) (conditions about
19
obtaining regulatory approvals);
20
(b) a condition mentioned in subsection 18(2) (conditions about
21
obtaining consents from eligible interest holders);
22
(c) a condition mentioned in subsection 18A(2) (condition about
23
obtaining consent from registered native title body
24
corporate).
25
Note 1:
See also section 22 (procedures for voluntary variation of registration
26
of biodiversity project).
27
Note 2:
For review of decisions, see Part 20.
28
(2) Rules made for the purposes of subsection (1) must not empower
29
the Regulator to vary a registration unless:
30
(a) the project proponent for the project applies to the Regulator
31
for the variation; and
32
(b) the Regulator is satisfied that the condition has been met.
33
Registered biodiversity projects
Part 2
Variation of registration
Division 3
Section 22
No. , 2023
Nature Repair Market Bill 2023
35
22 Procedures for voluntary variation of registration of biodiversity
1
project
2
(1) Rules made for the purposes of subsection 19(1), 20(1) or 21(1)
3
may make provision for or in relation to any or all of the following
4
matters:
5
(a) applications for variations under those rules;
6
(b) the approval by the Regulator of a form for such an
7
application;
8
(c) information that must accompany such an application;
9
(d) documents that must accompany such an application;
10
(e) verification by statutory declaration of statements in such an
11
application;
12
(f) consents that must be obtained for the making of such an
13
application;
14
(g) authorising a person to issue a certificate to certify a matter in
15
relation to such an application;
16
(h) the fee (if any) that must accompany such an application;
17
(i) the withdrawal of such an application;
18
(j) empowering the Regulator:
19
(i) to require an applicant to give the Regulator further
20
information in connection with such an application; and
21
(ii) if the applicant breaches the requirement--to refuse to
22
consider the application, or to refuse to take any action,
23
or any further action, in relation to the application;
24
(k) varying a biodiversity certificate issued in respect of a
25
registered biodiversity project (including such a certificate
26
that is held by a person other than the project proponent for
27
the project).
28
(2) Subsection (1) does not limit subsection 19(1), 20(1) or 21(1).
29
(3) A fee mentioned in paragraph (1)(h) must not be such as to amount
30
to taxation.
31
(4) Rules made for the purposes of subsection 19(1), 20(1) or 21(1)
32
must provide that, if the registration of a registered biodiversity
33
Part 2
Registered biodiversity projects
Division 3
Variation of registration
Section 22
36
Nature Repair Market Bill 2023
No. , 2023
project is varied in accordance with those rules, the Regulator must
1
give a copy of the variation to:
2
(a) the applicant for the variation; and
3
(b) if there is a relevant land registration official in relation to the
4
project--the relevant land registration official; and
5
(c) if:
6
(i) a biodiversity certificate has been issued in respect of
7
the registered biodiversity project; and
8
(ii) the biodiversity certificate is held by a person other than
9
the project proponent;
10
the holder of the biodiversity certificate.
11
(5) Rules made for the purposes of subsection 19(1), 20(1) or 21(1)
12
must provide that, if the Regulator decides to refuse to vary the
13
registration of a registered biodiversity project in accordance with
14
an application for variation under those rules, the Regulator must
15
give written notice of the decision to the applicant for the variation.
16
Registered biodiversity projects
Part 2
Cancellation of registration of biodiversity project
Division 4
Section 23
No. , 2023
Nature Repair Market Bill 2023
37
Division 4--Cancellation of registration of biodiversity
1
project
2
Subdivision A--Voluntary cancellation of registration of
3
biodiversity project
4
23 Voluntary cancellation of registration of biodiversity project--
5
certificate in effect
6
(1) The rules may make provision for and in relation to empowering
7
the Regulator to cancel the registration of a registered biodiversity
8
project.
9
Note:
For review of decisions, see Part 20.
10
(2) Rules made for the purposes of subsection (1) must not empower
11
the Regulator to cancel a registration unless:
12
(a) a biodiversity certificate (the
original certificate
) has been
13
issued in respect of the registered biodiversity project
14
(whether or not the original certificate remains in effect); and
15
(b) the project proponent for the project applies to the Regulator
16
for the cancellation of the registration; and
17
(c) the original certificate is relinquished in accordance with
18
section 152 in relation to the project, as mentioned in
19
paragraph 152(2)(c).
20
(3) Rules made for the purposes of subsection (1) may make provision
21
for or in relation to any of the following matters:
22
(a) applications for cancellation under those rules;
23
(b) the approval by the Regulator of a form for such an
24
application;
25
(c) other conditions that must be satisfied for the Regulator to
26
cancel the registration in accordance with those rules.
27
(4) Subsection (3) does not limit subsection (1).
28
Part 2
Registered biodiversity projects
Division 4
Cancellation of registration of biodiversity project
Section 24
38
Nature Repair Market Bill 2023
No. , 2023
24 Voluntary cancellation of registration of biodiversity project--no
1
certificate in effect
2
(1) The rules may make provision for and in relation to empowering
3
the Regulator to cancel the registration of a registered biodiversity
4
project.
5
Note:
For review of decisions, see Part 20.
6
(2) Rules made for the purposes of subsection (1) must not empower
7
the Regulator to cancel a registration unless:
8
(a) no biodiversity certificate has been issued in relation to the
9
registered biodiversity project; and
10
(b) the project proponent for the project applies to the Regulator
11
for the cancellation of the registration.
12
(3) Rules made for the purposes of subsection (1) may make provision
13
for or in relation to either or both of the following matters:
14
(a) applications for cancellation under those rules;
15
(b) the approval by the Regulator of a form for such an
16
application.
17
(4) Subsection (3) does not limit subsection (1).
18
25 Procedures for voluntary cancellation of registration of
19
biodiversity project
20
(1) Rules made for the purposes of subsection 23(1) or 24(1) may
21
make provision for or in relation to any or all of the following
22
matters:
23
(a) applications for cancellation under those rules;
24
(b) the approval by the Regulator of a form for such an
25
application;
26
(c) information that must accompany such an application;
27
(d) documents that must accompany such an application;
28
(e) verification by statutory declaration of statements in such an
29
application;
30
(f) consents that must be obtained for the making of such an
31
application;
32
Registered biodiversity projects
Part 2
Cancellation of registration of biodiversity project
Division 4
Section 25
No. , 2023
Nature Repair Market Bill 2023
39
(g) authorising a person to issue a certificate to certify a matter in
1
relation to such an application;
2
(h) the fee (if any) that must accompany such an application;
3
(i) the withdrawal of such an application;
4
(j) empowering the Regulator:
5
(i) to require an applicant to give the Regulator further
6
information in connection with such an application; and
7
(ii) if the applicant breaches the requirement--to refuse to
8
consider the application, or to refuse to take any action,
9
or any further action, in relation to the application.
10
(2) Subsection (1) does not limit subsection 23(1) or 24(1).
11
(3) A fee mentioned in paragraph (1)(h) must not be such as to amount
12
to taxation.
13
(4) Rules made for the purposes of subsection 23(1) or 24(1):
14
(a) must provide that, if the registration of a registered
15
biodiversity project is cancelled in accordance with those
16
rules, the Regulator must give notice of the cancellation to:
17
(i) the applicant for the cancellation; and
18
(ii) if there is a relevant land registration official in relation
19
to the project--the relevant land registration official;
20
and
21
(iii) in a case where the registration was cancelled under
22
rules made for the purposes of subsection 23(1), and the
23
biodiversity certificate mentioned in paragraph 23(2)(a)
24
is held by a person other than the applicant--the holder
25
of the certificate; and
26
(b) may require the Regulator to give notice of the cancellation
27
to other people.
28
(5) Rules made for the purposes of subsection 23(1) or 24(1) must
29
provide that, if the Regulator decides to refuse to cancel the
30
registration of a registered biodiversity project in accordance with
31
an application for cancellation under those rules, the Regulator
32
must give written notice of the decision to the applicant for the
33
cancellation.
34
Part 2
Registered biodiversity projects
Division 4
Cancellation of registration of biodiversity project
Section 26
40
Nature Repair Market Bill 2023
No. , 2023
Subdivision B--Unilateral cancellation of registration of
1
biodiversity project
2
26 Unilateral cancellation of registration of biodiversity project--
3
condition of registration has not been met
4
(1) The rules may make provision for and in relation to empowering
5
the Regulator to cancel the registration of a registered biodiversity
6
project.
7
Note:
For review of decisions, see Part 20.
8
(2) Rules made for the purposes of subsection (1) must not empower
9
the Regulator to cancel a registration unless:
10
(a) the registration is subject to a condition mentioned in
11
subsection 17(2), 18(2) or 18A(2); and
12
(b) the Regulator is satisfied that the condition has not been met;
13
and
14
(c) at least 5 years have passed since the project was first
15
registered.
16
(3) Rules made for the purposes of subsection (1) must require the
17
Regulator to consult the project proponent for the project before
18
deciding to cancel the registration.
19
27 Unilateral cancellation of registration of biodiversity project--
20
project not commenced, or unlikely to result in issuing of
21
biodiversity certificate
22
(1) The rules may make provision for and in relation to empowering
23
the Regulator to cancel the registration of a registered biodiversity
24
project.
25
Note:
For review of decisions, see Part 20.
26
(2) Rules made for the purposes of subsection (1) must not empower
27
the Regulator to cancel a registration unless:
28
(a) a certificate has not yet been issued in respect of the
29
registered biodiversity project; and
30
(b) any of the following subparagraphs applies:
31
Registered biodiversity projects
Part 2
Cancellation of registration of biodiversity project
Division 4
Section 28
No. , 2023
Nature Repair Market Bill 2023
41
(i) 5 years have passed since the project was first
1
registered, and the Regulator is not satisfied that the
2
project has begun to be carried out;
3
(ii) the Regulator is satisfied that the project is not being
4
carried out;
5
(iii) the Regulator is satisfied that the project is unlikely to
6
be carried out in a way that would result in a
7
biodiversity certificate being issued in respect of the
8
project.
9
(3) Rules made for the purposes of subsection (1) must require the
10
Regulator to consult the project proponent for the project before
11
deciding to cancel the registration.
12
28 Unilateral cancellation of registration of biodiversity project--
13
eligibility requirements not met etc.
14
(1) The rules may make provision for and in relation to empowering
15
the Regulator to cancel the registration of a registered biodiversity
16
project.
17
Note:
For review of decisions, see Part 20.
18
(2) Rules made for the purposes of subsection (1) must not empower
19
the Regulator to cancel a registration unless the Regulator is
20
satisfied that the project does not meet a requirement that is:
21
(a) set out in subsection 15(4); and
22
(b) specified in rules made for the purposes of this paragraph.
23
(3) Rules made for the purposes of subsection (1) must require the
24
Regulator to consult the project proponent for the project before
25
deciding to cancel the registration.
26
29 Unilateral cancellation of registration of biodiversity project--
27
project proponent ceases to be a fit and proper person
28
(1) The rules may make provision for and in relation to empowering
29
the Regulator to cancel the registration of a registered biodiversity
30
project.
31
Note:
For review of decisions, see Part 20.
32
Part 2
Registered biodiversity projects
Division 4
Cancellation of registration of biodiversity project
Section 30
42
Nature Repair Market Bill 2023
No. , 2023
(2) Rules made for the purposes of subsection (1) must not empower
1
the Regulator to cancel a registration unless:
2
(a) the Regulator is satisfied that either:
3
(i) if there is one project proponent for the project--the
4
project proponent for the project is not a fit and proper
5
person; or
6
(ii) if there are multiple project proponents for the project--
7
any of those project proponents is not a fit and proper
8
person; and
9
(b) 90 days pass after the Regulator becomes so satisfied, and, at
10
the end of that 90-day period, the Regulator is not satisfied
11
that each project proponent for the project is a fit and proper
12
person.
13
Note:
For
fit and proper person
, see sections 97, 98, 99 and 99A.
14
(3) Rules made for the purposes of subsection (1) must require the
15
Regulator to consult the project proponent for the project before
16
deciding to cancel the registration.
17
30 Unilateral cancellation of registration of biodiversity project--
18
project proponent ceases to exist etc.
19
(1) The rules may make provision for and in relation to empowering
20
the Regulator to cancel the registration of a registered biodiversity
21
project.
22
Note:
For review of decisions, see Part 20.
23
(2) Rules made for the purposes of subsection (1) must not empower
24
the Regulator to cancel a registration unless:
25
(a) the Regulator is satisfied that any of the following
26
circumstances exist:
27
(i) the project proponent has died or ceased to exist, and
28
there are no other project proponents for the project;
29
(ii) the project is not being carried out (except to the extent
30
that this is in accordance with the methodology
31
determination that covers the project); and
32
Registered biodiversity projects
Part 2
Cancellation of registration of biodiversity project
Division 4
Section 31
No. , 2023
Nature Repair Market Bill 2023
43
(b) 90 days pass after the circumstances began to exist, and the
1
Regulator is not satisfied, at the end of that 90-day period,
2
that the circumstances have ceased to exist.
3
(3) Rules made for the purposes of subsection (1) must require the
4
Regulator, in a case where there is a project proponent for the
5
project, to make reasonable efforts to consult the project proponent
6
for the project before deciding to cancel the registration.
7
31 Unilateral cancellation of registration of biodiversity project--
8
false or misleading information
9
(1) The rules may make provision for and in relation to empowering
10
the Regulator to cancel the registration of a registered biodiversity
11
project.
12
Note:
For review of decisions, see Part 20.
13
(2) Rules made for the purposes of subsection (1) must not empower
14
the Regulator to cancel a registration unless:
15
(a) information was given by a person to the Regulator in
16
connection with the project; and
17
(b) the information was:
18
(i) contained in an application under this Act; or
19
(ii) given in connection with an application under this Act;
20
or
21
(iii) contained in a biodiversity project report; or
22
(iv) contained in a notification under Division 3 of Part 9;
23
and
24
(c) the Regulator is satisfied that the information was false or
25
misleading in a material particular.
26
(3) Rules made for the purposes of subsection (1) must require the
27
Regulator to consult the project proponent for the project before
28
deciding to cancel the registration.
29
Part 2
Registered biodiversity projects
Division 4
Cancellation of registration of biodiversity project
Section 32
44
Nature Repair Market Bill 2023
No. , 2023
32 Notice of unilateral cancellation of registration of biodiversity
1
project
2
Rules made for the purposes of subsection 26(1), 27(1), 28(1),
3
29(1), 30(1) or 31(1):
4
(a) must provide that, if the registration of a registered
5
biodiversity project is cancelled in accordance with those
6
rules, the Regulator must give notice of the cancellation to:
7
(i) if there is a relevant land registration official in relation
8
to the project--the relevant land registration official;
9
and
10
(ii) if a biodiversity certificate is in effect in relation to the
11
project, and is held by a person other than the project
12
proponent--the holder of the certificate; and
13
(b) may require the Regulator to give notice of the cancellation
14
to other people.
15
Subdivision C--Cancellation of registration of biodiversity
16
project at the end of the permanence period for the
17
project
18
32A Cancellation of registration of biodiversity project at the end of
19
the permanence period for the project
20
The registration of a registered biodiversity project is cancelled at
21
the end of the permanence period for the project.
22
Note:
See also section 34 (permanence period).
23
Registered biodiversity projects
Part 2
Excluded biodiversity projects
Division 5
Section 33
No. , 2023
Nature Repair Market Bill 2023
45
Division 5--Excluded biodiversity projects
1
33 Excluded biodiversity projects
2
(1) For the purposes of this Act, a biodiversity project is an
excluded
3
biodiversity project
if it is a project of a kind specified in the rules.
4
(2) In deciding whether to make rules for the purposes of
5
subsection (1) specifying a particular kind of project, the Minister
6
must have regard to whether there is a material risk that that kind
7
of project will have a material adverse impact on one or more of
8
the following:
9
(a) the availability of water;
10
(b) biodiversity (other than the kinds of biodiversity to be
11
addressed by the project);
12
(c) employment;
13
(d) the local community;
14
(e) if there is a local community of Aboriginal persons, or Torres
15
Strait Islanders, who have a connection to the project area--
16
that community;
17
(f) land access for agricultural production;
18
(g) the environment.
19
Part 2
Registered biodiversity projects
Division 6
Permanence period
Section 34
46
Nature Repair Market Bill 2023
No. , 2023
Division 6--Permanence period
1
34 Permanence period
2
(1) Subject to subsection (2), the permanence period of a registered
3
biodiversity project must be:
4
(a) a type A permanence period; or
5
(b) a type B permanence period; or
6
(c) a type C permanence period.
7
Note:
The permanence period of a registered biodiversity project may be
8
varied under rules made for the purposes of subsection 20(1).
9
(2) A methodology determination that covers a particular kind of
10
registered biodiversity project may provide that the permanence
11
period for biodiversity projects of that kind must be a type C
12
permanence period.
13
Type A permanence period
14
(3) The type A permanence period for a registered biodiversity project:
15
(a) begins when the approval of the registration of the project
16
takes effect; and
17
(b) ends at the end of the 25-year period that began when the
18
approval of the registration of the project takes effect.
19
Type B permanence period
20
(4) The type B permanence period for a registered biodiversity project:
21
(a) begins when the approval of the registration of the project
22
takes effect; and
23
(b) ends at the end of the 100-year period that began when the
24
approval of the registration of the project takes effect.
25
Type C permanence period
26
(5) The type C permanence period for the registered biodiversity
27
project:
28
Registered biodiversity projects
Part 2
Permanence period
Division 6
Section 34
No. , 2023
Nature Repair Market Bill 2023
47
(a) begins when the approval of the registration of the project
1
takes effect; and
2
(b) ends at the end of the period ascertained in accordance with
3
the methodology determination that covers the project.
4
Extension of permanence period
5
(6) The Regulator may extend the permanence period for a registered
6
biodiversity project if the Regulator is satisfied that:
7
(a) there has been a significant reversal of the biodiversity
8
outcome to which the project relates; and
9
(b) the extension is necessary to:
10
(i) restore the biodiversity outcome; or
11
(ii) mitigate the reversal.
12
Note:
For review of decisions, see Part 20.
13
(7) The Regulator may extend the permanence period for a registered
14
biodiversity project if:
15
(a) the project proponent for the project requests the extension;
16
and
17
(b) the Regulator is satisfied that:
18
(i) the biodiversity outcome to which the project relates has
19
not been achieved; and
20
(ii) the extension is necessary for the biodiversity outcome
21
to be achieved.
22
Note:
For review of decisions, see Part 20.
23
Request for extension of permanence period
24
(8) A request under paragraph (7)(a) must:
25
(a) be in writing; and
26
(b) be in a form approved, in writing, by the Regulator.
27
(9) The Regulator must take all reasonable steps to ensure that a
28
decision is made on the request within 30 days after the request
29
was made.
30
Part 2
Registered biodiversity projects
Division 6
Permanence period
Section 34
48
Nature Repair Market Bill 2023
No. , 2023
Notification of extension of permanence period
1
(10) If the Regulator extends the permanence period for a registered
2
biodiversity project, the Regulator must take all reasonable steps to
3
ensure that notice of the extension is given to:
4
(a) the project proponent for the project; and
5
(b) if a biodiversity certificate relating to the project is held by a
6
person other than the project proponent for the project--the
7
holder of the certificate; and
8
(c) if there is a relevant land registration official in relation to the
9
project--the relevant land registration official; and
10
(d) if:
11
(i) the project area is or includes a native title area; and
12
(ii) there is a registered native title body corporate for the
13
native title area; and
14
(iii) the registered native title body corporate is not the
15
project proponent for the project;
16
the registered native title body corporate; and
17
(e) any other person specified in the rules.
18
Notification of end of permanence period
19
(11) If:
20
(a) there is a relevant land registration official in relation to a
21
registered biodiversity project; and
22
(b) the permanence period for the project ends;
23
the Regulator must notify the relevant land registration official of
24
the end of the permanence period.
25
Variation of biodiversity certificate
26
(12) If:
27
(a) the Regulator extends the permanence period for a registered
28
biodiversity project; and
29
(b) a biodiversity certificate has been issued in respect of the
30
project; and
31
(c) the permanence period is set out in the biodiversity
32
certificate;
33
Registered biodiversity projects
Part 2
Permanence period
Division 6
Section 34
No. , 2023
Nature Repair Market Bill 2023
49
the Regulator must vary the biodiversity certificate to set out the
1
permanence period as extended.
2
Part 3
Multiple project proponents
Division 1
Introduction
Section 35
50
Nature Repair Market Bill 2023
No. , 2023
Part 3--Multiple project proponents
1
Division 1--Introduction
2
35 Simplified outline of this Part
3
If there are multiple project proponents for a registered biodiversity
4
project, a reference in this Act to the project proponent is to be read
5
as a reference to each of the project proponents.
6
Multiple project proponents for a registered biodiversity project
7
may nominate a nominee for the purposes of:
8
(a)
the service of documents; and
9
(b)
the taking of eligible voluntary actions (for example, the
10
making of an application).
11
If they do not do so, the Regulator may cancel the project's
12
registration.
13
If there are multiple project proponents for a registered biodiversity
14
project, obligations are imposed on each of the proponents, but
15
may be discharged by any of the proponents.
16
Multiple project proponents
Part 3
References to project proponents
Division 2
Section 36
No. , 2023
Nature Repair Market Bill 2023
51
Division 2--References to project proponents
1
36 References to project proponents
2
If there are 2 or more eligible persons (the
multiple project
3
proponents
) who are registered as the project proponents for a
4
registered biodiversity project, then:
5
(a) for the purposes of this Act, each of the multiple project
6
proponents is a project proponent for the registered
7
biodiversity project; and
8
(b) a reference in:
9
(i) this Act; or
10
(ii) an instrument under this Act;
11
to the project proponent for the registered biodiversity project
12
is to be read as a reference to each of the multiple project
13
proponents.
14
Part 3
Multiple project proponents
Division 3
Nominee of multiple project proponents
Section 37
52
Nature Repair Market Bill 2023
No. , 2023
Division 3--Nominee of multiple project proponents
1
37 Nomination of nominee by multiple project proponents--
2
nomination accompanying application
3
Scope
4
(1) This section applies to:
5
(a) an application under section 11 for the Regulator to approve
6
the registration of a biodiversity project if the application
7
specifies 2 or more eligible persons who are to be project
8
proponents for the biodiversity project; or
9
(b) an application under rules made for the purposes of
10
section 19 (change in identity of project proponent) that
11
would, if granted, result in there being multiple project
12
proponents for a registered biodiversity project (whether or
13
not there would otherwise be multiple project proponents).
14
Nomination
15
(2) The application must be accompanied by a notice, made jointly in
16
writing by all of the eligible persons who would, if the application
17
were granted, be project proponents for the biodiversity project,
18
nominating one of those eligible persons as the
nominee
in relation
19
to the biodiversity project.
20
(3) The joint written notice must be in a form approved, in writing, by
21
the Regulator.
22
(4) If the Regulator grants the application, the nomination takes effect:
23
(a) if paragraph (1)(a) applies--at the time the biodiversity
24
project is registered as a registered biodiversity project; or
25
(b) if paragraph (1)(b) applies--at the time the variation under
26
rules made for the purposes of section 19 takes effect.
27
(5) If the application is not granted, the nomination does not take
28
effect.
29
Multiple project proponents
Part 3
Nominee of multiple project proponents
Division 3
Section 38
No. , 2023
Nature Repair Market Bill 2023
53
38 Nomination of nominee by multiple project proponents--other
1
nominations
2
Scope
3
(1) This section applies to a registered biodiversity project that has
4
multiple project proponents.
5
Nomination
6
(2) The project proponents may give the Regulator a notice, made
7
jointly in writing by all of the project proponents, nominating one
8
of the project proponents as the
nominee
in relation to the
9
registered biodiversity project.
10
Note:
If a registered biodiversity project that has multiple project proponents
11
ceases to have a nominee, and no new nominee is nominated, the
12
Regulator may cancel the project's registration from 90 days after the
13
cessation (see rules made for the purposes of section 42).
14
(3) The joint written notice must be in a form approved, in writing, by
15
the Regulator.
16
(4) The nomination takes effect at the time it is given to the Regulator.
17
(5) If a nomination under subsection (2) takes effect in relation to a
18
particular registered biodiversity project, any other nomination
19
under this Part that was in force in relation to that registered
20
biodiversity project ceases to be in force.
21
39 Revocation and cessation of nomination
22
(1) If:
23
(a) a nomination under subsection 37(2) or 38(2) is in force in
24
relation to a registered biodiversity project; and
25
(b) one of the project proponents for the registered biodiversity
26
project, by written notice given to the Regulator, revokes the
27
nomination;
28
the nomination ceases to be in force.
29
(2) If:
30
Part 3
Multiple project proponents
Division 3
Nominee of multiple project proponents
Section 40
54
Nature Repair Market Bill 2023
No. , 2023
(a) a nomination under subsection 37(2) or 38(2) is in force in
1
relation to a registered biodiversity project; and
2
(b) the nominee ceases to be one of the project proponents for
3
the registered biodiversity project;
4
the nomination ceases to be in force.
5
Note:
If a registered biodiversity project that has multiple project proponents
6
ceases to have a nominee, and no new nominee is nominated, the
7
Regulator may cancel the project's registration from 90 days after the
8
cessation (see rules made for the purposes of section 42).
9
40 Service of documents on nominee
10
Scope
11
(1) This section applies if there are 2 or more project proponents (the
12
multiple project proponents
) for a registered biodiversity project.
13
Service of documents
14
(2) For the purposes of this Act, if:
15
(a) the multiple project proponents have nominated a nominee
16
under subsection 37(2) or 38(2) in relation to the project; and
17
(b) the nomination is in force; and
18
(c) a document relating to the registered biodiversity project is
19
required or permitted by this Act to be given to the project
20
proponent; and
21
(d) the document is given to the nominee;
22
the document is taken to have been given to each of the multiple
23
project proponents.
24
41 Eligible voluntary action taken by nominee
25
Scope
26
(1) This section applies if there are 2 or more project proponents (the
27
multiple project proponents
) for a registered biodiversity project.
28
Eligible voluntary action to be taken by nominee
29
(2) If:
30
Multiple project proponents
Part 3
Nominee of multiple project proponents
Division 3
Section 42
No. , 2023
Nature Repair Market Bill 2023
55
(a) the multiple project proponents have nominated a nominee
1
under subsection 37(2) or 38(2) in relation to the project; and
2
(b) the nomination is in force; and
3
(c) the nominee takes an eligible voluntary action; and
4
(d) the application, nomination, request or notice to which the
5
eligible voluntary action relates is expressed to be made,
6
withdrawn or given, as the case may be, on behalf of the
7
multiple project proponents;
8
this Act has effect as if:
9
(e) the application, nomination, request or notice to which the
10
eligible voluntary action relates were made, withdrawn or
11
given, as the case may be, by the multiple project proponents
12
jointly; and
13
(f) if the eligible voluntary action is the making of an
14
application--a reference in this Act to the applicant were a
15
reference to each of the multiple project proponents.
16
(3) The multiple project proponents are not entitled to take an eligible
17
voluntary action except in accordance with subsection (2).
18
42 Unilateral cancellation of registration of biodiversity project--
19
failure of multiple project proponents to nominate a
20
nominee
21
(1) The rules may make provision for and in relation to empowering
22
the Regulator to cancel the registration of a registered biodiversity
23
project.
24
Note:
For review of decisions, see Part 20.
25
(2) Rules made for the purposes of subsection (1) must not empower
26
the Regulator to cancel a registration unless:
27
(a) there are 2 or more project proponents (the
multiple project
28
proponents
) for the registered biodiversity project; and
29
(b) the multiple project proponents have nominated an eligible
30
person under subsection 37(2) or 38(2); and
31
(c) the nomination ceases to be in force; and
32
(d) 90 days pass, and no new nomination under subsection 37(2)
33
or 38(2) is made by the multiple project proponents.
34
Part 3
Multiple project proponents
Division 3
Nominee of multiple project proponents
Section 42
56
Nature Repair Market Bill 2023
No. , 2023
(3) Rules made for the purposes of subsection (1) must require the
1
Regulator to consult the multiple project proponents before
2
deciding to cancel the registration.
3
(4) Rules made for the purposes of subsection (1):
4
(a) must provide that, if the registration of a registered
5
biodiversity project is cancelled in accordance with those
6
rules, the Regulator must give notice of the cancellation to:
7
(i) if there is a relevant land registration official in relation
8
to the project--the relevant land registration official;
9
and
10
(ii) if a biodiversity certificate is in effect in relation to the
11
project, and is held by a person other than the project
12
proponent--the holder of the certificate; and
13
(b) may require the Regulator to give notice of the cancellation
14
to other people.
15
Multiple project proponents
Part 3
Obligations of multiple project proponents
Division 4
Section 43
No. , 2023
Nature Repair Market Bill 2023
57
Division 4--Obligations of multiple project proponents
1
43 Obligations of multiple project proponents
2
Scope
3
(1) This section applies if:
4
(a) there are 2 or more project proponents (the
multiple project
5
proponents
) for a registered biodiversity project; and
6
(b) any of the following:
7
(i) this Act;
8
(ii) an instrument made under this Act;
9
imposes an obligation on the project proponent for the
10
project.
11
Obligations of project proponent
12
(2) The obligation is imposed on each of the multiple project
13
proponents, but may be discharged by any of the multiple project
14
proponents.
15
(3) The rules may exempt a specified obligation from the scope of
16
subsection (2).
17
Part 4
Methodology determinations
Division 1
Introduction
Section 44
58
Nature Repair Market Bill 2023
No. , 2023
Part 4--Methodology determinations
1
Division 1--Introduction
2
44 Simplified outline of this Part
3
Methodology determinations are legislative instruments, made by
4
the Minister, that set out how a registered biodiversity project is to
5
be carried out, and other matters. Each registered biodiversity
6
project must be covered by a methodology determination.
7
Methodology determinations may include requirements that a
8
project proponent must comply with. If a biodiversity certificate
9
has been issued in respect of a project, there is a civil penalty for
10
failing to comply with a requirement in the methodology
11
determination that covers the project.
12
In making or varying a methodology determination, the Minister
13
must have regard to:
14
(a)
the biodiversity integrity standards; and
15
(b)
advice given by the Nature Repair Market Committee.
16
The Minister may also have regard to adverse environmental and
17
other impacts, and any other matters the Minister considers
18
relevant.
19
The Minister may make a biodiversity assessment instrument that
20
prescribes requirements to be complied with by methodology
21
determinations.
22
Methodology determinations
Part 4
Methodology determinations
Division 2
Section 45
No. , 2023
Nature Repair Market Bill 2023
59
Division 2--Methodology determinations
1
Subdivision A--Making of methodology determinations
2
45 Methodology determinations
3
(1) The Minister may, by legislative instrument, make a determination
4
that:
5
(a) is expressed to cover a specified kind of biodiversity project;
6
and
7
(b) sets out conditions that must be met for such a project to be
8
registered as a registered biodiversity project; and
9
(c) provides, for the purposes of paragraph 162(1)(k), for
10
information that is to be included in the entry in the Register
11
for such a project; and
12
(d) sets out:
13
(i) for the purposes of paragraph 67(2)(b), conditions that
14
must be met for an application to be made for a
15
biodiversity certificate to be issued in respect of such a
16
project; and
17
(ii) for the purposes of paragraph 67(2)(c), a method of
18
working out the time after which such applications may
19
be made; and
20
(e) sets out, for the purposes of paragraph 70(2)(h), conditions
21
that must be met for a biodiversity certificate to be issued in
22
respect of such a project; and
23
(f) requires, for the purposes of paragraph 108(1)(b), the project
24
proponent for such a project to notify the Regulator of
25
specified matters relating to the project; and
26
(g) provides, for the purposes of paragraphs 164(1)(d) and (2)(d),
27
for information that is to be included in the entry in the
28
Register for a biodiversity certificate issued in relation to
29
such a project; and
30
(h) sets out the activities that are to be carried out for the
31
purposes of such a project; and
32
(i) provides for the activity period (if any) of such a project to be
33
worked out.
34
Part 4
Methodology determinations
Division 2
Methodology determinations
Section 45
60
Nature Repair Market Bill 2023
No. , 2023
(2) A determination made under subsection (1) is a
methodology
1
determination
.
2
Note:
For the duration of a methodology determination, see section 50.
3
(3) A methodology determination may impose any of the following on
4
the project proponent of a registered biodiversity project that is
5
covered by the methodology determination:
6
(a) specified requirements to carry out activities in the project
7
area for the purposes of the project;
8
(b) specified requirements to ensure that specified activities are
9
not carried out, by the project proponent or any other person,
10
in the project area;
11
(c) specified requirements to include information relating to the
12
project in each biodiversity project report about the project;
13
(d) specified requirements to notify one or more matters relating
14
to the project to the Regulator;
15
(e) specified record-keeping requirements relating to the project;
16
(f) specified requirements to monitor the project.
17
Note:
See section 46 (civil penalties--requirements in methodology
18
determination).
19
(4) A methodology determination may exempt traditional Indigenous
20
activities from a requirement imposed under paragraph (3)(b).
21
(5) Conditions set out under paragraph (1)(b), (d) or (e) must include:
22
(a) in a case where the methodology determination covers a kind
23
of biodiversity project that involves enhancement of
24
biodiversity--conditions relating to the measurement or
25
assessment of the enhancement of biodiversity; and
26
(b) in a case where the methodology determination covers a kind
27
of biodiversity project that involves protection of
28
biodiversity--conditions relating to the measurement or
29
assessment of the protection of biodiversity.
30
(6) Requirements imposed under paragraph (1)(f) or (3)(c), (d) or (f)
31
must include:
32
(a) in a case where the methodology determination covers a kind
33
of biodiversity project that involves enhancement of
34
Methodology determinations
Part 4
Methodology determinations
Division 2
Section 45
No. , 2023
Nature Repair Market Bill 2023
61
biodiversity--requirements relating to the measurement or
1
assessment of the enhancement of biodiversity; and
2
(b) in a case where the methodology determination covers a kind
3
of biodiversity project that involves protection of
4
biodiversity--requirements relating to the measurement or
5
assessment of the protection of biodiversity.
6
(7) A methodology determination may require that:
7
(a) there must be a project plan for a registered biodiversity
8
project that is covered by the methodology determination;
9
and
10
(b) the project plan must remain in force until the time
11
ascertained in accordance with the methodology
12
determination.
13
(8) A methodology determination may prescribe matters required or
14
permitted by this Act to be prescribed by a methodology
15
determination.
16
(9) Without limiting subsection 33(3A) of the
Acts Interpretation Act
17
1901
, a methodology determination may make different provision
18
in relation to different kinds of biodiversity projects covered by the
19
determination.
20
Note:
For example, a methodology determination may set out requirements
21
under paragraph (1)(b) that differ depending on which region the
22
project area of a biodiversity project is in.
23
(10) Despite subsection 14(2) of the
Legislation Act 2003
, a
24
methodology determination may make provision in relation to a
25
matter by applying, adopting or incorporating, with or without
26
modification, any matter contained in an instrument or other
27
writing as in force or existing from time to time.
28
(11) A methodology determination may make provision in relation to a
29
matter by conferring a power to make a decision of an
30
administrative character on the Regulator.
31
Note:
For review of decisions, see Part 20.
32
Part 4
Methodology determinations
Division 2
Methodology determinations
Section 46
62
Nature Repair Market Bill 2023
No. , 2023
Biodiversity assessment instruments
1
(12) The Minister must not make a methodology determination unless
2
there is a biodiversity assessment instrument that applies to the
3
determination.
4
(13) A methodology determination must comply with any requirements
5
prescribed by a biodiversity assessment instrument that applies to
6
the determination.
7
46 Civil penalties--requirements in methodology determination
8
(1) An eligible person is liable to a civil penalty if:
9
(a) the eligible person is a project proponent of a registered
10
biodiversity project; and
11
(b) a biodiversity certificate has been issued in respect of the
12
project (whether or not the certificate remains in force); and
13
(c) the methodology determination that covers the project
14
imposes a requirement on the project proponent of the project
15
for the purposes of paragraphs 45(3)(a) and (b); and
16
(d) the eligible person, or any other project proponent for the
17
project, fails to comply with the requirement.
18
Civil penalty:
2,000 penalty units.
19
(2) An eligible person is liable to a civil penalty if:
20
(a) the eligible person is a project proponent of a registered
21
biodiversity project; and
22
(b) a biodiversity certificate has been issued in respect of the
23
project (whether or not the certificate remains in force); and
24
(c) the methodology determination that covers the project
25
requires, for the purposes of paragraph 45(3)(b), the project
26
proponent for the project to ensure that an activity is not
27
carried out in the project area; and
28
(d) the activity is carried out in the project area (by the project
29
proponent or any other person).
30
Civil penalty:
2,000 penalty units.
31
Methodology determinations
Part 4
Methodology determinations
Division 2
Section 47
No. , 2023
Nature Repair Market Bill 2023
63
(3) Subsection (2) does not apply if the eligible person takes all
1
reasonable steps to ensure that the activity is not carried out in the
2
project area.
3
Note:
A person who wishes to rely on subsection (3) in proceedings for a
4
civil penalty order bears an evidential burden in relation to the matter
5
in that subsection: see section 96 of the Regulatory Powers Act.
6
47 Procedure for making a methodology determination
7
(1) In deciding whether to make a methodology determination, the
8
Minister:
9
(a) must have regard to the following:
10
(i) whether the determination complies with the
11
biodiversity integrity standards;
12
(ii) any advice that the Nature Repair Market Committee
13
has given to the Minister under subsection 54(2) in
14
relation to the making of the determination; and
15
(b) may have regard to the following:
16
(i) whether significant adverse environmental, agricultural,
17
economic, cultural or social impacts are likely to arise
18
from the carrying out of the kind of project that the
19
determination covers;
20
(ii) such other matters (if any) as the Minister considers
21
relevant.
22
Advice given by the Nature Repair Market Committee
23
(2) Before making a methodology determination, the Minister must
24
request the Nature Repair Market Committee to advise the Minister
25
about whether the Minister should make the determination.
26
Note:
The Nature Repair Market Committee must have regard to certain
27
matters in giving advice to the Minister (see section 54).
28
(3) The Minister must not make a methodology determination unless:
29
(a) the Nature Repair Market Committee has given the Minister
30
advice under subsection 54(2) in relation to the making of the
31
determination; and
32
Part 4
Methodology determinations
Division 2
Methodology determinations
Section 47
64
Nature Repair Market Bill 2023
No. , 2023
(b) that advice includes a statement to the effect that the
1
Committee is satisfied that the determination complies with
2
the biodiversity integrity standards.
3
(4) If the Minister decides:
4
(a) to make a methodology determination; or
5
(b) not to make a methodology determination;
6
the Minister must:
7
(c) cause a copy of any advice given by the Nature Repair
8
Market Committee under subsection 54(2) in relation to the
9
determination to be published on the Department's website;
10
and
11
(d) do so as soon as practicable after making the decision.
12
Biodiversity integrity standards
13
(5) The Minister must not make a methodology determination unless
14
the Minister is satisfied that the methodology determination
15
complies with the biodiversity integrity standards.
16
Statement of reasons
17
(6) If the Minister decides to make a methodology determination, the
18
Minister must:
19
(a) prepare a written statement of reasons for the decision; and
20
(b) do so as soon as practicable after making the decision.
21
(7) If the Minister prepares a statement of reasons under
22
subsection (6), the Minister must:
23
(a) cause a copy of the statement of reasons to be published on
24
the Department's website; and
25
(b) do so as soon as practicable after the statement of reasons is
26
prepared.
27
Variation and amendment etc. of methodology determination
28
(8) Subsection 33(3) of the
Acts Interpretation Act 1901
does not
29
apply to a methodology determination.
30
Note:
For variation and revocation of a methodology determination, see
31
Subdivisions B and C of this Division.
32
Methodology determinations
Part 4
Methodology determinations
Division 2
Section 48
No. , 2023
Nature Repair Market Bill 2023
65
Subdivision B--Variation of methodology determinations
1
48 Variation of methodology determinations
2
(1) The Minister may, by legislative instrument, vary a methodology
3
determination.
4
(2) In deciding whether to vary a methodology determination, the
5
Minister:
6
(a) must have regard to the following:
7
(i) whether the varied determination complies with the
8
biodiversity integrity standards;
9
(ii) any advice that the Nature Repair Market Committee
10
has given to the Minister under subsection 54(2) in
11
relation to the varying of the determination; and
12
(b) may have regard to the following:
13
(i) whether significant adverse environmental, agricultural,
14
economic, cultural or social impacts are likely to arise
15
from the carrying out of the kind of project that the
16
varied determination covers;
17
(ii) such other matters (if any) as the Minister considers
18
relevant.
19
Advice given by the Nature Repair Market Committee
20
(3) Before varying a methodology determination, the Minister must
21
request the Nature Repair Market Committee to advise the Minister
22
about whether the Minister should vary the determination.
23
Note 1:
The Nature Repair Market Committee must have regard to certain
24
matters in giving advice to the Minister (see section 54).
25
Note 2:
For variations of a minor nature, see subsection (9) of this section.
26
(4) The Minister must not vary a methodology determination unless:
27
(a) the Nature Repair Market Committee has given the Minister
28
advice under subsection 54(2) in relation to the variation of
29
the determination; and
30
(b) that advice includes a statement to the effect that the
31
Committee is satisfied that the varied determination complies
32
with the biodiversity integrity standards.
33
Part 4
Methodology determinations
Division 2
Methodology determinations
Section 49
66
Nature Repair Market Bill 2023
No. , 2023
(5) If the Minister decides:
1
(a) to vary a methodology determination; or
2
(b) not to vary a methodology determination;
3
the Minister must:
4
(c) cause a copy of any advice given by the Nature Repair
5
Market Committee under subsection 54(2) in relation to the
6
variation of the determination to be published on the
7
Department's website; and
8
(d) do so as soon as practicable after making the decision.
9
Biodiversity integrity standards
10
(6) The Minister must not vary a methodology determination unless
11
the Minister is satisfied that the varied methodology determination
12
complies with the biodiversity integrity standards.
13
Statement of reasons
14
(7) If the Minister decides to vary a methodology determination, the
15
Minister must:
16
(a) prepare a written statement of reasons for the decision; and
17
(b) do so as soon as practicable after making the decision.
18
(8) If the Minister prepares a statement of reasons under
19
subsection (7), the Minister must:
20
(a) cause a copy of the statement of reasons to be published on
21
the Department's website; and
22
(b) do so as soon as practicable after the statement of reasons is
23
prepared.
24
Variations of a minor nature
25
(9) Subsections (3), (4), (5) and (7) do not apply in relation to a
26
variation if the variation is of a minor nature.
27
49 When variation takes effect
28
(1) A variation of a methodology determination takes effect:
29
Methodology determinations
Part 4
Methodology determinations
Division 2
Section 49
No. , 2023
Nature Repair Market Bill 2023
67
(a) on the day after the instrument varying the methodology
1
determination is registered on the Federal Register of
2
Legislation; or
3
(b) if a later day is specified in the instrument--on that later day.
4
Consequences of variation on existing registered biodiversity
5
projects
6
(2) The rules may provide that if:
7
(a) a methodology determination covers a registered biodiversity
8
project; and
9
(b) the methodology determination is varied; and
10
(c) the project's registration is in effect at the time the variation
11
takes effect; and
12
(d) the conditions specified in the rules are satisfied;
13
the variation of the methodology determination applies to the
14
registered biodiversity project.
15
(3) The rules may provide that if:
16
(a) a methodology determination covers a registered biodiversity
17
project; and
18
(b) the methodology determination is varied; and
19
(c) the project's registration is in effect at the time the variation
20
takes effect; and
21
(d) the conditions specified in the rules are satisfied;
22
the variation of the methodology determination does not apply to
23
the registered biodiversity project.
24
Note:
However, a variation of a methodology determination will apply to an
25
existing registered biodiversity project if the project's registration is
26
varied under rules made for the purposes of section 20 to change the
27
methodology determination that covers the project.
28
(4) The rules may empower the Regulator to determine, on application
29
by the project proponent for a registered biodiversity project, that
30
if:
31
(a) a methodology determination covers the registered
32
biodiversity project; and
33
(b) the methodology determination is varied; and
34
Part 4
Methodology determinations
Division 2
Methodology determinations
Section 49
68
Nature Repair Market Bill 2023
No. , 2023
(c) the project's registration is in effect at the time the variation
1
takes effect; and
2
(d) the conditions specified in the rules are satisfied;
3
the variation of the methodology determination does not apply to
4
the registered biodiversity project.
5
Note:
However, a variation of a methodology determination will apply to an
6
existing registered biodiversity project if the project's registration is
7
varied under rules made for the purposes of section 20 to change the
8
methodology determination that covers the project.
9
(5) The rules may make provision for and in relation to any of the
10
following matters in relation to an application under rules made for
11
the purposes of subsection (4):
12
(a) the approval by the Regulator of a form for such an
13
application;
14
(b) information that must accompany such an application;
15
(c) documents that must accompany such an application;
16
(d) verification by statutory declaration of statements in such an
17
application;
18
(e) the fee (if any) that must accompany such an application;
19
(f) the withdrawal of such an application;
20
(g) empowering the Regulator:
21
(i) to require an applicant to give the Regulator further
22
information in connection with such an application; and
23
(ii) if the applicant breaches the requirements--to refuse to
24
consider the application, or to refuse to take any action,
25
or any further action, in relation to the application.
26
(6) A fee mentioned in paragraph (5)(e) must not be such as to amount
27
to taxation.
28
Effect of variation on application for approval of registration
29
(7) If:
30
(a) a variation of a methodology determination takes effect; and
31
(b) at the time the variation takes effect, an application under
32
section 11 for the Regulator to approve the registration of a
33
biodiversity project has been made, and the Regulator has not
34
decided to:
35
Methodology determinations
Part 4
Methodology determinations
Division 2
Section 50
No. , 2023
Nature Repair Market Bill 2023
69
(i) approve the registration; or
1
(ii) refuse to approve the registration; and
2
(c) the application proposes that the project is to be covered by
3
the methodology determination;
4
then:
5
(d) the methodology determination as varied applies to the
6
application; and
7
(e) if the biodiversity project is registered, the project is covered
8
by the methodology determination as varied.
9
(8) The rules may provide for any of the following:
10
(a) the Regulator to notify an eligible person that an application
11
made by the eligible person under this Act is affected by a
12
variation of a methodology determination, as mentioned in
13
subsection (7);
14
(b) the Regulator to give the eligible person an opportunity to
15
withdraw or vary the application before the Regulator
16
considers the application.
17
Refund of fee
18
(9) If:
19
(a) an application is withdrawn under rules made for the
20
purposes of subsection (5) or (8); and
21
(b) the applicant has paid a fee in relation to the application;
22
the Regulator must, on behalf of the Commonwealth, refund the
23
application fee.
24
Subdivision C--Duration, expiry and revocation of
25
methodology determinations
26
50 Duration of methodology determinations
27
(1) A methodology determination:
28
(a) comes into force:
29
(i) the day after it is registered on the Federal Register of
30
Legislation; or
31
Part 4
Methodology determinations
Division 2
Methodology determinations
Section 51
70
Nature Repair Market Bill 2023
No. , 2023
(ii) if a later time is specified in the determination--at that
1
later time; and
2
(b) unless sooner:
3
(i) revoked; or
4
(ii) repealed by section 42 (disallowance) of the
Legislation
5
Act 2003
; or
6
(iii) repealed by Part 4 of Chapter 3 (sunsetting) of the
7
Legislation Act 2003
;
8
remains in force until:
9
(iv) if a period is specified in relation to the determination in
10
a legislative instrument made by the Minister for the
11
purposes of this subparagraph--the end of that period;
12
or
13
(v) if subparagraph (iv) does not apply, but a period is
14
specified in the determination--the end of that period.
15
(2) If a methodology determination ceases to be in force, this Act does
16
not prevent the Minister from making a fresh methodology
17
determination in the same terms as the determination that has
18
ceased to be in force.
19
Note:
A fresh methodology determination must comply with the relevant
20
provisions of this Division.
21
51 Revocation of methodology determinations
22
(1) The Minister may, by legislative instrument, revoke a methodology
23
determination.
24
(2) Before revoking a methodology determination, the Minister must
25
request the Nature Repair Market Committee to advise the Minister
26
about whether the Minister should revoke the determination.
27
Note:
The Nature Repair Market Committee must have regard to certain
28
matters in giving advice to the Minister (see section 54).
29
(3) In deciding whether to revoke a methodology determination, the
30
Minister:
31
(a) must have regard to the following:
32
(i) whether the determination complies with the
33
biodiversity integrity standards;
34
Methodology determinations
Part 4
Methodology determinations
Division 2
Section 52
No. , 2023
Nature Repair Market Bill 2023
71
(ii) the advice given by the Nature Repair Market
1
Committee under subsection 54(2); and
2
(b) may have regard to such other matters (if any) as the Minister
3
considers relevant.
4
(4) If the Minister decides:
5
(a) to revoke a methodology determination; or
6
(b) not to revoke a methodology determination;
7
the Minister must, as soon as practicable after making the decision,
8
cause a copy of the advice given by the Nature Repair Market
9
Committee under subsection 54(2) in relation to the determination
10
to be published on the Department's website.
11
(5) If the Minister decides to revoke a methodology determination, the
12
Minister must:
13
(a) prepare a written statement of reasons for the decision; and
14
(b) do so as soon as practicable after making the decision.
15
(6) If the Minister prepares a statement of reasons under
16
subsection (5), the Minister must:
17
(a) cause a copy of the statement of reasons to be published on
18
the Department's website; and
19
(b) do so as soon as practicable after the statement of reasons is
20
prepared.
21
52 Consequences of methodology determination ceasing to have
22
effect
23
Continued application of methodology determination
24
(1) The rules may provide that if:
25
(a) the methodology determination that covers a registered
26
biodiversity project ceases to have effect (whether under this
27
Subdivision or otherwise); and
28
(b) the conditions specified in the rules are satisfied;
29
that methodology determination continues to cover the project as if
30
the methodology determination had not ceased.
31
Part 4
Methodology determinations
Division 2
Methodology determinations
Section 52
72
Nature Repair Market Bill 2023
No. , 2023
(2) The rules may empower the Regulator to determine, on application
1
by the project proponent for a registered biodiversity project, that
2
if:
3
(a) the methodology determination that covers the project ceases
4
to have effect (whether under this Subdivision or otherwise);
5
and
6
(b) the conditions specified in the rules are satisfied;
7
then, despite the cessation, the methodology determination
8
continues to cover the project as if the methodology determination
9
had not ceased.
10
(3) The rules may make provision for and in relation to any of the
11
following matters in relation to an application under rules made for
12
the purposes of subsection (2):
13
(a) the approval by the Regulator of a form for such an
14
application;
15
(b) information that must accompany such an application;
16
(c) documents that must accompany such an application;
17
(d) verification by statutory declaration of statements in such an
18
application;
19
(e) the fee (if any) that must accompany such an application;
20
(f) the withdrawal of such an application;
21
(g) empowering the Regulator:
22
(i) to require an applicant to give the Regulator further
23
information in connection with such an application; and
24
(ii) if the applicant breaches the requirements--to refuse to
25
consider the application, or to refuse to take any action,
26
or any further action, in relation to the application.
27
(4) A fee mentioned in paragraph (3)(e) must not be such as to amount
28
to taxation.
29
(5) If:
30
(a) an application is withdrawn under rules made for the
31
purposes of subsection (3); and
32
(b) the applicant has paid a fee in relation to the application;
33
the Regulator must, on behalf of the Commonwealth, refund the
34
application fee.
35
Methodology determinations
Part 4
Methodology determinations
Division 2
Section 53
No. , 2023
Nature Repair Market Bill 2023
73
Variation of registration of biodiversity project
1
(6) The rules may make provision for and in relation to empowering
2
the Regulator to vary the registration of a registered biodiversity
3
project in respect of the methodology determination that covers the
4
project if:
5
(a) the methodology determination that covers the project ceases
6
to have effect (whether under this Subdivision or otherwise);
7
and
8
(b) the conditions specified in the rules are satisfied.
9
53 Effect of methodology determination ceasing to have effect--
10
applications for registration
11
(1) This section applies to an application under section 11 for the
12
Regulator to approve the registration of a biodiversity project if the
13
methodology determination specified in the application under
14
paragraph 12(2)(c) ceases to have effect (whether under this
15
Subdivision or otherwise).
16
(2) The Regulator must refuse the application.
17
(3) The rules may provide for any of the following:
18
(a) the Regulator to notify the applicant that the Regulator
19
proposes to refuse the application under subsection (2);
20
(b) the Regulator to give the applicant an opportunity to
21
withdraw or vary the application before the Regulator refuses
22
the application.
23
(4) If:
24
(a) an application is withdrawn under rules made for the
25
purposes of subsection (3); and
26
(b) the applicant has paid a fee in relation to the application;
27
the Regulator must, on behalf of the Commonwealth, refund the
28
application fee.
29
Part 4
Methodology determinations
Division 2
Methodology determinations
Section 54
74
Nature Repair Market Bill 2023
No. , 2023
Subdivision D--Advice about making, varying or revoking
1
methodology determinations
2
54 Advice by the Nature Repair Market Committee
3
Scope
4
(1) This section applies if the Minister requests the Nature Repair
5
Market Committee:
6
(a) under subsection 47(2), to give advice about whether the
7
Minister should make a methodology determination; or
8
(b) under subsection 48(3), to give advice about whether the
9
Minister should vary a methodology determination; or
10
(c) under subsection 51(2), to give advice about whether the
11
Minister should revoke a methodology determination.
12
Committee to give advice
13
(2) The Nature Repair Market Committee must give the requested
14
advice to the Minister.
15
Note:
The Committee must undertake public consultation before giving
16
advice about making or varying a methodology determination (see
17
section 56).
18
(3) If the requested advice relates to whether the Minister should make
19
a methodology determination, the Nature Repair Market
20
Committee must include the following in the advice:
21
(a) if the Committee is satisfied that the proposed determination
22
complies with the biodiversity integrity standards:
23
(i) a statement to that effect; and
24
(ii) the Committee's reasons why it is satisfied that the
25
proposed determination complies with the biodiversity
26
integrity standards; and
27
(iii) in a case where a Committee member is not satisfied
28
that the proposed determination complies with the
29
biodiversity integrity standards--the Committee
30
member's reasons why the Committee member is not so
31
satisfied;
32
Methodology determinations
Part 4
Methodology determinations
Division 2
Section 54
No. , 2023
Nature Repair Market Bill 2023
75
(b) if the Committee is not satisfied that the proposed
1
determination complies with the biodiversity integrity
2
standards:
3
(i) a statement to that effect; and
4
(ii) the Committee's reasons why it is not satisfied that the
5
proposed determination complies with the biodiversity
6
integrity standards;
7
(c) such other information (if any) as is specified in the rules.
8
(4) If the requested advice relates to whether the Minister should vary
9
a methodology determination, the Nature Repair Market
10
Committee must include the following in the advice:
11
(a) if the Committee is satisfied that the determination as
12
proposed to be varied complies with the biodiversity integrity
13
standards:
14
(i) a statement to that effect; and
15
(ii) the Committee's reasons why it is satisfied that the
16
determination as proposed to be varied complies with
17
the biodiversity integrity standards; and
18
(iii) in a case where a Committee member is not satisfied
19
that the determination as proposed to be varied complies
20
with the biodiversity integrity standards--the
21
Committee member's reasons why the Committee
22
member is not so satisfied;
23
(b) if the Committee is not satisfied that the determination as
24
proposed to be varied complies with the biodiversity integrity
25
standards:
26
(i) a statement to that effect; and
27
(ii) the Committee's reasons why it is not satisfied that the
28
determination as proposed to be varied complies with
29
the biodiversity integrity standards;
30
(c) such other information (if any) as is specified in the rules.
31
(5) If the requested advice relates to whether the Minister should
32
revoke a methodology determination, the Nature Repair Market
33
Committee must include in the advice:
34
(a) a statement setting out the Committee's opinion about
35
whether the determination should be revoked; and
36
Part 4
Methodology determinations
Division 2
Methodology determinations
Section 55
76
Nature Repair Market Bill 2023
No. , 2023
(b) the Committee's reasons for the opinion; and
1
(c) such other information (if any) as is specified in the rules.
2
Committee must have regard to certain matters
3
(6) In giving the requested advice to the Minister, the Nature Repair
4
Market Committee must have regard to the following:
5
(a) the biodiversity integrity standards;
6
(b) any relevant matters specified in a direction in force under
7
section 55;
8
(c) any relevant advice given by the Regulator to the Committee;
9
(d) such other matters (if any) as are specified in the rules.
10
(7) Subsection (6) does not, by implication, limit the matters to which
11
the Nature Repair Market Committee may have regard.
12
55 Additional matters for the Nature Repair Market Committee to
13
take into account
14
The Minister may, by legislative instrument, direct the Nature
15
Repair Market Committee to do any or all of the following:
16
(a) have regard to one or more specified matters in giving advice
17
about the making of a methodology determination;
18
(b) have regard to one or more specified matters in giving advice
19
about the variation of a methodology determination;
20
(c) have regard to one or more specified matters in giving advice
21
about the revocation of a methodology determination.
22
Note:
Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the
23
Legislation Act 2003
do not apply to the direction (see regulations
24
made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that
25
Act).
26
Methodology determinations
Part 4
Methodology determinations
Division 2
Section 56
No. , 2023
Nature Repair Market Bill 2023
77
Subdivision E--Consultation by the Nature Repair Market
1
Committee
2
56 Consultation by the Nature Repair Market Committee
3
(1) The Nature Repair Market Committee must not advise the Minister
4
whether the Minister should make or vary a methodology
5
determination unless the Committee has first:
6
(a) published on the Department's website:
7
(i) a detailed outline of the proposed determination or
8
variation, as the case may be; and
9
(ii) a notice inviting the public to make a submission to the
10
Committee on the detailed outline by a specified time
11
limit; and
12
(b) considered any relevant submissions that were received
13
within that time limit.
14
(2) The time limit must be at least 28 days after the notice is published.
15
(3) However, the time limit may be shorter than 28 days after the
16
notice is published, so long as:
17
(a) the Nature Repair Market Committee considers that the time
18
limit is appropriate in the circumstances; and
19
(b) the time limit is not shorter than 14 days after the notice is
20
published.
21
Publication of submissions
22
(4) The Nature Repair Market Committee must publish on the
23
Department's website any relevant submissions under
24
subsection (1) received within the time limit referred to in
25
subparagraph (1)(a)(ii).
26
(5) However, the Nature Repair Market Committee must not publish a
27
particular submission made by a person if publication of the
28
submission could reasonably be expected to substantially
29
prejudice:
30
(a) Indigenous cultural heritage; or
31
(b) biodiversity.
32
Part 4
Methodology determinations
Division 2
Methodology determinations
Section 56
78
Nature Repair Market Bill 2023
No. , 2023
(6) The Nature Repair Market Committee may decide under
1
subsection (5) not to publish a submission:
2
(a) on its own initiative; or
3
(b) at the request of the person who made the submission.
4
(7) A request under subsection (6) must:
5
(a) be in writing; and
6
(b) be in a form approved, in writing, by the Committee.
7
Methodology determinations
Part 4
Biodiversity integrity standards
Division 3
Section 57
No. , 2023
Nature Repair Market Bill 2023
79
Division 3--Biodiversity integrity standards
1
57 Biodiversity integrity standards
2
(1) For the purposes of this Act, a methodology determination
3
complies with the
biodiversity integrity standards
if:
4
(a) a biodiversity project carried out in accordance with the
5
methodology determination must be designed to result in
6
enhancement or protection of biodiversity in native species
7
(whether the effect on biodiversity occurs within or outside
8
the project area) that would be unlikely to occur if the project
9
was not carried out; and
10
(b) a biodiversity project carried out in accordance with the
11
methodology determination must be designed to prevent the
12
project from having a significant adverse impact on
13
biodiversity in a native species that is protected under:
14
(i) a law of the Commonwealth; or
15
(ii) a law of a State or a Territory in which the project area
16
is wholly or partly situated; and
17
(c) a biodiversity project carried out in accordance with the
18
methodology determination must be designed to achieve
19
enhancement or protection of biodiversity in native species
20
that is appropriate to the project area; and
21
(d) a biodiversity project carried out in accordance with the
22
methodology determination must be designed to achieve
23
enhancement or protection:
24
(i) that is of biodiversity in native species; and
25
(ii) that can be measured, assessed and verified; and
26
(e) any condition set out in, or requirement imposed by, the
27
methodology determination in accordance with
28
subsection 45(5) or (6):
29
(i) is supported by clear and convincing evidence; and
30
(ii) is, so far as is reasonably practicable, consistent with
31
relevant Indigenous knowledge and values relating to
32
biodiversity and cultural heritage; and
33
Part 4
Methodology determinations
Division 3
Biodiversity integrity standards
Section 57
80
Nature Repair Market Bill 2023
No. , 2023
(iii) is consistent with enhancement or protection of
1
biodiversity in native species that is appropriate to the
2
project area; and
3
(iv) enables, where appropriate, adaptive management to
4
achieve the enhancement or protection of biodiversity in
5
native species; and
6
(v) in the case of a condition or requirement that relates to
7
the measurement or assessment of the enhancement of
8
biodiversity of native species--requires a clear
9
indication of the level of certainty and confidence of
10
achievement of the enhancement; and
11
(vi) in the case of a condition or requirement that relates to
12
the measurement of the protection of biodiversity of
13
native species--requires a clear indication of the level
14
of certainty and confidence of achievement of the
15
protection; and
16
(f) if any condition set out in, or requirement imposed by, the
17
methodology determination in accordance with
18
subsection 45(5) or (6) involves an estimate or projection--
19
the condition or requirement must require disclosure of:
20
(i) the assumptions and methods used to make the estimate
21
or projection; and
22
(ii) the level of certainty of the estimate or projection; and
23
(g) if any condition set out in, or requirement imposed by, the
24
methodology determination in accordance with
25
subsection 45(5) or (6) involves an estimate or projection--
26
the condition or requirement must require that the estimate or
27
projection must be conservative; and
28
(h) any statements or information that could be included in:
29
(i) an entry in the Register for a biodiversity project
30
covered by the methodology determination; or
31
(ii) a biodiversity certificate issued in relation to a
32
biodiversity project covered by the methodology
33
determination;
34
would be supported by clear and convincing evidence; and
35
(i) to the extent to which any statements or information referred
36
to in paragraph (h) would involve an estimate, projection or
37
Methodology determinations
Part 4
Biodiversity integrity standards
Division 3
Section 57
No. , 2023
Nature Repair Market Bill 2023
81
assumption--the estimate, projection or assumption would
1
be reasonably certain; and
2
(j) the methodology determination meets such other standards
3
(if any) as are prescribed by the rules.
4
(2) Paragraph (1)(j) is not limited by the other paragraphs in
5
subsection (1).
6
Part 4
Methodology determinations
Division 4
Biodiversity assessment instruments
Section 58
82
Nature Repair Market Bill 2023
No. , 2023
Division 4--Biodiversity assessment instruments
1
Subdivision A--Making of biodiversity assessment instruments
2
58 Biodiversity assessment instruments
3
(1) The Minister may, by legislative instrument, prescribe
4
requirements to be complied with by methodology determinations.
5
(2) An instrument under subsection (1) is to be known as a
biodiversity
6
assessment instrument
.
7
(3) The following are examples of requirements that may be
8
prescribed by a biodiversity assessment instrument:
9
(a) requirements relating to the measurement or assessment of
10
biodiversity;
11
(b) requirements relating to the measurement or assessment of
12
the enhancement of biodiversity;
13
(c) requirements relating to the measurement or assessment of
14
the protection of biodiversity.
15
(4) A biodiversity assessment instrument may be of general
16
application or may be limited as provided in the instrument.
17
(5) Subsection (4) does not, by implication, limit subsection 33(3A) of
18
the
Acts Interpretation Act 1901
.
19
59 Procedure for making a biodiversity assessment instrument
20
(1) In deciding whether to make a biodiversity assessment instrument,
21
the Minister:
22
(a) must have regard to any advice that the Nature Repair Market
23
Committee has given to the Minister under subsection 64(2)
24
in relation to the making of the instrument; and
25
(b) may have regard to such other matters (if any) as the Minister
26
considers relevant.
27
Methodology determinations
Part 4
Biodiversity assessment instruments
Division 4
Section 59
No. , 2023
Nature Repair Market Bill 2023
83
Advice given by the Nature Repair Market Committee
1
(2) Before making a biodiversity assessment instrument, the Minister
2
must request the Nature Repair Market Committee to advise the
3
Minister about whether the Minister should make the instrument.
4
Note:
The Nature Repair Market Committee must have regard to certain
5
matters in giving advice to the Minister (see section 64).
6
(3) The Minister must not make a biodiversity assessment instrument
7
unless:
8
(a) the Nature Repair Market Committee has given the Minister
9
advice in relation to the making of the instrument; and
10
(b) if the instrument applies generally--that advice includes a
11
statement to the effect that the Nature Repair Market
12
Committee is satisfied that the instrument:
13
(i) is an appropriate means of achieving consistency of
14
methodology determinations; and
15
(ii) would assist in ensuring that methodology
16
determinations comply with the biodiversity integrity
17
standards; and
18
(c) if the instrument applies to a class of methodology
19
determinations--that advice includes a statement to the effect
20
that the Nature Repair Market Committee is satisfied that the
21
instrument:
22
(i) is an appropriate means of achieving consistency of
23
methodology determinations in that class; and
24
(ii) would assist in ensuring that methodology
25
determinations in that class comply with the
26
biodiversity integrity standards.
27
(4) If the Minister decides:
28
(a) to make a biodiversity assessment instrument; or
29
(b) not to make a biodiversity assessment instrument;
30
the Minister must:
31
(c) cause a copy of any advice given by the Nature Repair
32
Market Committee under subsection 64(2) in relation to the
33
making of the instrument to be published on the
34
Department's website; and
35
Part 4
Methodology determinations
Division 4
Biodiversity assessment instruments
Section 60
84
Nature Repair Market Bill 2023
No. , 2023
(d) do so as soon as practicable after making the decision.
1
Statement of reasons
2
(5) If the Minister decides to make a biodiversity assessment
3
instrument, the Minister must:
4
(a) prepare a written statement of reasons for the decision; and
5
(b) do so as soon as practicable after making the decision.
6
(6) If the Minister prepares a statement of reasons under
7
subsection (5), the Minister must:
8
(a) cause a copy of the statement of reasons to be published on
9
the Department's website; and
10
(b) do so as soon as practicable after the statement of reasons is
11
prepared.
12
Variation and amendment etc. of biodiversity assessment
13
instrument
14
(7) Subsection 33(3) of the
Acts Interpretation Act 1901
does not
15
apply to a biodiversity assessment instrument.
16
Note:
For variation and revocation of a biodiversity assessment instrument,
17
see Subdivisions B and C of this Division.
18
Subdivision B--Variation of biodiversity assessment
19
instruments
20
60 Variation of biodiversity assessment instruments
21
The Minister may, by legislative instrument, vary a biodiversity
22
assessment instrument.
23
61 Procedure for varying a biodiversity assessment instrument
24
(1) In deciding whether to vary a biodiversity assessment instrument,
25
the Minister:
26
(a) must have regard to any advice that the Nature Repair Market
27
Committee has given to the Minister under subsection 64(2)
28
in relation to the varying of the instrument; and
29
Methodology determinations
Part 4
Biodiversity assessment instruments
Division 4
Section 61
No. , 2023
Nature Repair Market Bill 2023
85
(b) may have regard to such other matters (if any) as the Minister
1
considers relevant.
2
Advice given by the Nature Repair Market Committee
3
(2) Before varying a biodiversity assessment instrument, the Minister
4
must request the Nature Repair Market Committee to advise the
5
Minister about whether the Minister should vary the instrument.
6
Note 1:
The Nature Repair Market Committee must have regard to certain
7
matters in giving advice to the Minister (see section 64).
8
Note 2:
For variations of a minor nature, see subsection (7) of this section.
9
(3) The Minister must not vary a biodiversity assessment instrument
10
unless:
11
(a) the Nature Repair Market Committee has given the Minister
12
advice in relation to the varying of the instrument; and
13
(b) if the biodiversity assessment instrument applies generally--
14
that advice includes a statement to the effect that the Nature
15
Repair Market Committee is satisfied that the varied
16
instrument:
17
(i) is an appropriate means of achieving consistency of
18
methodology determinations; and
19
(ii) would assist in ensuring that methodology
20
determinations comply with the biodiversity integrity
21
standards; and
22
(c) if the instrument applies to a specified class of methodology
23
determinations--that advice includes a statement to the effect
24
that the Nature Repair Market Committee is satisfied that the
25
varied instrument:
26
(i) is an appropriate means of achieving consistency of
27
methodology determinations in that class; and
28
(ii) would assist in ensuring that methodology
29
determinations in that class comply with the
30
biodiversity integrity standards.
31
(4) If the Minister decides:
32
(a) to vary a biodiversity assessment instrument; or
33
(b) not to vary a biodiversity assessment instrument;
34
Part 4
Methodology determinations
Division 4
Biodiversity assessment instruments
Section 62
86
Nature Repair Market Bill 2023
No. , 2023
the Minister must:
1
(c) cause a copy of any advice given by the Biodiversity Market
2
Committee under subsection 64(2) in relation to varying the
3
instrument to be published on the Department's website; and
4
(d) do so as soon as practicable after making the decision.
5
Statement of reasons
6
(5) If the Minister decides to vary a biodiversity assessment
7
instrument, the Minister must:
8
(a) prepare a written statement of reasons for the decision; and
9
(b) do so as soon as practicable after making the decision.
10
(6) If the Minister prepares a statement of reasons under
11
subsection (5), the Minister must:
12
(a) cause a copy of the statement of reasons to be published on
13
the Department's website; and
14
(b) do so as soon as practicable after the statement of reasons is
15
prepared.
16
Variations of a minor nature
17
(7) Subsections (2), (3), (4) and (5) do not apply in relation to a
18
variation if the variation is of a minor nature.
19
Subdivision C--Revocation of biodiversity assessment
20
instruments
21
62 Revocation of biodiversity assessment instruments
22
The Minister may, by legislative instrument, revoke a biodiversity
23
assessment instrument.
24
63 Procedure for revoking a biodiversity assessment instrument
25
(1) In deciding whether to revoke a biodiversity assessment
26
instrument, the Minister:
27
Methodology determinations
Part 4
Biodiversity assessment instruments
Division 4
Section 63
No. , 2023
Nature Repair Market Bill 2023
87
(a) must have regard to any advice that the Nature Repair Market
1
Committee has given to the Minister under subsection 64(2)
2
in relation to the revocation of the instrument; and
3
(b) may have regard to such other matters (if any) as the Minister
4
considers relevant.
5
Advice given by the Nature Repair Market Committee
6
(2) Before revoking a biodiversity assessment instrument, the Minister
7
must request the Nature Repair Market Committee to advise the
8
Minister about whether the Minister should revoke the instrument.
9
(3) The Minister must not revoke a biodiversity assessment instrument
10
unless the Nature Repair Market Committee has given the Minister
11
advice in relation to the revocation of the instrument.
12
(4) If the Minister decides:
13
(a) to revoke a biodiversity assessment instrument; or
14
(b) not to revoke a biodiversity assessment instrument;
15
the Minister must:
16
(c) cause a copy of any advice given by the Biodiversity Market
17
Committee under subsection 64(2) in relation to the
18
revocation of the instrument to be published on the
19
Department's website; and
20
(d) do so as soon as practicable after making the decision.
21
Statement of reasons
22
(5) If the Minister decides to revoke a biodiversity assessment
23
instrument, the Minister must:
24
(a) prepare a written statement of reasons for the decision; and
25
(b) do so as soon as practicable after making the decision.
26
(6) If the Minister prepares a statement of reasons under
27
subsection (5), the Minister must:
28
(a) cause a copy of the statement of reasons to be published on
29
the Department's website; and
30
(b) do so as soon as practicable after the statement of reasons is
31
prepared.
32
Part 4
Methodology determinations
Division 4
Biodiversity assessment instruments
Section 64
88
Nature Repair Market Bill 2023
No. , 2023
Subdivision D--Advice about making, varying or revoking
1
biodiversity assessment instruments
2
64 Advice by the Nature Repair Market Committee
3
Scope
4
(1) This section applies if the Minister requests the Nature Repair
5
Market Committee:
6
(a) under subsection 59(2), to give advice about whether the
7
Minister should make a biodiversity assessment instrument;
8
or
9
(b) under subsection 61(2), to give advice about whether the
10
Minister should vary a biodiversity assessment instrument; or
11
(c) under subsection 63(2), to give advice about whether the
12
Minister should revoke a biodiversity assessment instrument.
13
Committee to give advice
14
(2) The Nature Repair Market Committee must give the requested
15
advice to the Minister.
16
Note:
The Committee must undertake public consultation before giving
17
advice about making or varying a biodiversity assessment instrument
18
(see section 65).
19
(3) If the requested advice relates to whether the Minister should make
20
a biodiversity assessment instrument, the Nature Repair Market
21
Committee must include in the advice:
22
(a) if the instrument applies generally--a statement that the
23
Nature Repair Market Committee is satisfied that the
24
instrument:
25
(i) is an appropriate means of achieving consistency of
26
methodology determinations; and
27
(ii) would assist in ensuring that methodology
28
determinations comply with the biodiversity integrity
29
standards; and
30
(b) if the instrument applies to a class of methodology
31
determinations--a statement to the effect that the Nature
32
Repair Market Committee is satisfied that the instrument:
33
Methodology determinations
Part 4
Biodiversity assessment instruments
Division 4
Section 64
No. , 2023
Nature Repair Market Bill 2023
89
(i) is an appropriate means of achieving consistency of
1
methodology determinations in that class; and
2
(ii) would assist in ensuring that methodology
3
determinations in that class comply with the
4
biodiversity integrity standards; and
5
(c) such other information (if any) as is specified in the rules.
6
(4) If the requested advice relates to whether the Minister should vary
7
a biodiversity assessment instrument, the Nature Repair Market
8
Committee must include in the advice:
9
(a) a statement to the effect that the Nature Repair Market
10
Committee is satisfied that the instrument as proposed to be
11
varied:
12
(i) is an appropriate means of achieving consistency of
13
methodology determinations; and
14
(ii) would assist in ensuring that methodology
15
determinations comply with the biodiversity integrity
16
standards; and
17
(b) if the instrument as proposed to be varied applies to a class of
18
methodology determinations--a statement to the effect that
19
the Nature Repair Market Committee is satisfied that the
20
instrument as proposed to be varied:
21
(i) is an appropriate means of achieving consistency of
22
methodology determinations in that class; and
23
(ii) would assist in ensuring that methodology
24
determinations in that class comply with the
25
biodiversity integrity standards; and
26
(c) such other information (if any) as is specified in the rules.
27
(5) If the requested advice relates to whether the Minister should
28
revoke a biodiversity assessment instrument, the Nature Repair
29
Market Committee must include in the advice:
30
(a) a statement setting out the Committee's opinion about
31
whether the instrument should be revoked; and
32
(b) the Committee's reasons for the opinion; and
33
(c) such other information (if any) as is specified in the rules.
34
Part 4
Methodology determinations
Division 4
Biodiversity assessment instruments
Section 65
90
Nature Repair Market Bill 2023
No. , 2023
Committee must have regard to certain matters
1
(6) In giving the requested advice to the Minister, the Nature Repair
2
Market Committee must have regard to the following:
3
(a) the biodiversity integrity standards;
4
(b) any relevant matters specified in a direction in force under
5
section 65A;
6
(c) any relevant advice given by the Regulator to the Committee;
7
(d) such other matters (if any) as are specified in the rules.
8
(7) Subsection (6) does not, by implication, limit the matters to which
9
the Nature Repair Market Committee may have regard.
10
65 Consultation by the Nature Repair Market Committee
11
(1) The Nature Repair Market Committee must not advise the Minister
12
whether the Minister should make or vary a biodiversity
13
assessment instrument unless the Committee has first:
14
(a) published on the Department's website:
15
(i) a detailed outline of the proposed instrument or
16
variation, as the case may be; and
17
(ii) a notice inviting the public to make a submission to the
18
Committee on the detailed outline by a specified time
19
limit; and
20
(b) considered any relevant submissions that were received
21
within that time limit.
22
(2) The time limit must be at least 28 days after the notice is published.
23
(3) However, the time limit may be shorter than 28 days after the
24
notice is published, so long as:
25
(a) the Nature Repair Market Committee considers that the time
26
limit is appropriate in the circumstances; and
27
(b) the time limit is not shorter than 14 days after the notice is
28
published.
29
Publication of submissions
30
(4) The Nature Repair Market Committee must publish on the
31
Department's website any relevant submissions under
32
Methodology determinations
Part 4
Biodiversity assessment instruments
Division 4
Section 65A
No. , 2023
Nature Repair Market Bill 2023
91
subsection (1) received within the time limit referred to in
1
subparagraph (1)(a)(ii).
2
(5) However, the Nature Repair Market Committee must not publish a
3
particular submission made by a person if publication of the
4
submission could reasonably be expected to substantially
5
prejudice:
6
(a) Indigenous cultural heritage; or
7
(b) biodiversity.
8
(6) The Nature Repair Market Committee may decide under
9
subsection (5) not to publish a submission:
10
(a) on its own initiative; or
11
(b) at the request of the person who made the submission.
12
(7) A request under subsection (6) must:
13
(a) be in writing; and
14
(b) be in a form approved, in writing, by the Committee.
15
65A Additional matters for the Nature Repair Market Committee to
16
take into account
17
The Minister may, by legislative instrument, direct the Nature
18
Repair Market Committee to do any or all of the following:
19
(a) have regard to one or more specified matters in giving advice
20
about the making of a biodiversity assessment instrument;
21
(b) have regard to one or more specified matters in giving advice
22
about the variation of a biodiversity assessment instrument;
23
(c) have regard to one or more specified matters in giving advice
24
about the revocation of a biodiversity assessment instrument.
25
Note:
Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the
26
Legislation Act 2003
do not apply to the direction (see regulations
27
made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that
28
Act).
29
Part 5
Biodiversity certificates
Division 1
Introduction
Section 66
92
Nature Repair Market Bill 2023
No. , 2023
Part 5--Biodiversity certificates
1
Division 1--Introduction
2
66 Simplified outline of this Part
3
A biodiversity certificate may be issued for a registered
4
biodiversity project, in accordance with the methodology
5
determination that covers the project. After being issued, a
6
biodiversity certificate is recorded on the Register.
7
A biodiversity certificate is personal property, and may be
8
transferred.
9
Biodiversity certificates
Part 5
Issue of biodiversity certificates
Division 2
Section 67
No. , 2023
Nature Repair Market Bill 2023
93
Division 2--Issue of biodiversity certificates
1
67 Application for biodiversity certificate
2
(1) The project proponent of a registered biodiversity project may
3
apply to the Regulator for the Regulator to issue to the project
4
proponent a biodiversity certificate in respect of the registered
5
biodiversity project.
6
(2) The application may only be made:
7
(a) if:
8
(i) a biodiversity certificate has not previously been issued
9
in respect of the registered biodiversity project; or
10
(ii) a biodiversity certificate has previously been issued in
11
respect of the registered biodiversity project and the
12
Regulator has agreed that the application may be made;
13
and
14
(b) if the conditions (if any) set out under
15
subparagraph 45(1)(d)(i) in the methodology determination
16
that covers the registered biodiversity project are met; and
17
(c) after the time worked out in accordance with provisions of
18
that methodology determination made for the purposes of
19
subparagraph 45(1)(d)(ii); and
20
(d) if the conditions (if any) set out in the rules for the purposes
21
of this paragraph are met.
22
68 Form of application
23
(1) An application under section 67 in relation to a registered
24
biodiversity project must:
25
(a) be in writing; and
26
(b) be in a form approved, in writing, by the Regulator; and
27
(c) be accompanied by such information as is specified in the
28
rules; and
29
(d) be accompanied by such information as is specified in the
30
methodology determination that covers the biodiversity
31
project; and
32
Part 5
Biodiversity certificates
Division 2
Issue of biodiversity certificates
Section 69
94
Nature Repair Market Bill 2023
No. , 2023
(e) if, under the rules or the methodology determination that
1
covers the project, the application is subject to audit under
2
this Act--be accompanied by an audit report that is:
3
(i) prescribed by the rules or the methodology
4
determination that covers the project (as the case
5
requires); and
6
(ii) prepared by a registered greenhouse and energy auditor
7
who has been appointed as an audit team leader for the
8
purpose; and
9
(f) be accompanied by the category A biodiversity project report
10
mentioned in section 101; and
11
(g) be accompanied by such other documents (if any) as are
12
specified in the rules; and
13
(h) be accompanied by such other documents (if any) as are
14
specified in the methodology determination that covers the
15
biodiversity project; and
16
(i) be accompanied by the fee (if any) specified in the rules.
17
(2) The approved form of application may provide for verification by
18
statutory declaration of statements in applications.
19
(3) A fee specified under paragraph (1)(i) must not be such as to
20
amount to taxation.
21
69 Further information
22
(1) The Regulator may, by written notice given to an applicant, require
23
the applicant to give the Regulator, within the period specified in
24
the notice, further information in connection with the application.
25
(2) If the applicant breaches the requirement, the Regulator may, by
26
written notice given to the applicant:
27
(a) refuse to consider the application; or
28
(b) refuse to take any action, or any further action, in relation to
29
the application.
30
Biodiversity certificates
Part 5
Issue of biodiversity certificates
Division 2
Section 70
No. , 2023
Nature Repair Market Bill 2023
95
70 Issue of biodiversity certificate
1
Scope
2
(1) This section applies if an application under section 67 has been
3
made for the issue of a biodiversity certificate in respect of a
4
registered biodiversity project.
5
Issue of certificate
6
(2) If the Regulator is satisfied that:
7
(a) the applicant is a fit and proper person; and
8
(b) the applicant is the project proponent for the project; and
9
(c) if the registration of the registered biodiversity project is
10
subject to a condition under section 17 (obtaining regulatory
11
approvals)--that condition has been met; and
12
(d) if the registration of the registered biodiversity project is
13
subject to a condition under section 18 (obtaining consents
14
from eligible interest holders)--that condition has been met;
15
and
16
(e) if the registration of the registered biodiversity project is
17
subject to a condition under section 18A (obtaining consent
18
from registered native title body corporate)--that condition
19
has been met; and
20
(f) the project is sufficiently progressed to have resulted in, or be
21
likely to result in, the biodiversity outcome for the project;
22
and
23
(g) if the rules specify one or more other eligibility requirements
24
for the purposes of this paragraph--those requirements are
25
met; and
26
(h) if the methodology determination that covers the project
27
specifies conditions for the purposes of paragraph 45(1)(e)--
28
those conditions are met;
29
the Regulator must issue a biodiversity certificate to the applicant
30
in respect of the project by making an entry in a Register account
31
held by the applicant.
32
Note 1:
For
fit and proper person
, see sections 97, 98, 99 and 99A.
33
Note 2:
For projects with multiple project proponents, see Part 3.
34
Part 5
Biodiversity certificates
Division 2
Issue of biodiversity certificates
Section 70A
96
Nature Repair Market Bill 2023
No. , 2023
Note 3:
For review of decisions, see Part 20.
1
(3) A biodiversity certificate must set out such matters (if any) as are
2
specified in the rules.
3
Timing
4
(4) The Regulator must take all reasonable steps to ensure that a
5
decision is made on the application:
6
(a) if the Regulator requires the applicant to give further
7
information under subsection 69(1) in relation to the
8
application--within 90 days after the applicant gave the
9
Regulator the information; or
10
(b) otherwise--within 90 days after the application was made.
11
Notice
12
(5) The Regulator must give the applicant notice in writing if the
13
Regulator:
14
(a) decides to issue a biodiversity certificate to the applicant; or
15
(b) decides not to issue a biodiversity certificate to the applicant.
16
70A Correction of biodiversity certificate
17
The Regulator may vary a biodiversity certificate in order to
18
correct a minor or technical error in the certificate.
19
71 Basis on which biodiversity certificates are issued
20
A biodiversity certificate is issued on the basis that:
21
(a) the certificate may be varied:
22
(i) in accordance with rules made for the purposes of
23
paragraph 22(1)(k); or
24
(ii) under subsection 34(12); or
25
(iii) under section 70A; and
26
(b) the certificate may be required to be relinquished under
27
Part 13; and
28
(c) the certificate may be cancelled under section 77 or 77A; and
29
Biodiversity certificates
Part 5
Issue of biodiversity certificates
Division 2
Section 71
No. , 2023
Nature Repair Market Bill 2023
97
(d) the certificate may be cancelled, revoked, terminated or
1
varied, or required to be relinquished, by or under later
2
legislation; and
3
(e) no compensation is payable if the certificate is so cancelled,
4
revoked, terminated or varied, or required to be relinquished.
5
Part 5
Biodiversity certificates
Division 3
Property in biodiversity certificates
Section 72
98
Nature Repair Market Bill 2023
No. , 2023
Division 3--Property in biodiversity certificates
1
72 A biodiversity certificate is personal property
2
A biodiversity certificate is personal property and, subject to
3
section 74, is transmissible by assignment, by will and by
4
devolution by operation of law.
5
73 Ownership of biodiversity certificate
6
(1) The holder of a biodiversity certificate:
7
(a) is the legal owner of the certificate; and
8
(b) may, subject to this Act, deal with the certificate as its legal
9
owner and give good discharges for any consideration for
10
any such dealing.
11
Note:
The holder of a biodiversity certificate is the person recorded in the
12
Register as the holder of the certificate (see the definition of
holder
in
13
section 7).
14
(2) Subsection (1) only protects a person who deals with the holder of
15
the certificate as a purchaser:
16
(a) in good faith for value; and
17
(b) without notice of any defect in the title of the holder.
18
74 Transmission of biodiversity certificates
19
A transmission of a biodiversity certificate, whether by assignment
20
or by any other lawful means, is of no force until the biodiversity
21
certificate has been transferred, in accordance with rules made for
22
the purposes of section 167:
23
(a) from a Register account held by the transferor; and
24
(b) into a Register account held by the transferee.
25
Biodiversity certificates
Part 5
Property in biodiversity certificates
Division 3
Section 75
No. , 2023
Nature Repair Market Bill 2023
99
75 Registration of equitable interests in relation to biodiversity
1
certificates
2
(1) The rules may make provision for or in relation to the registration
3
in the Register of equitable interests in relation to biodiversity
4
certificates.
5
(2) Subsection (1) does not apply to an equitable interest that is a
6
security interest within the meaning of the
Personal Property
7
Securities Act 2009
, and to which that Act applies.
8
76 Equitable interests in relation to biodiversity certificates
9
(1) This Act does not affect:
10
(a) the creation of; or
11
(b) any dealings with; or
12
(c) the enforcement of;
13
equitable interests in relation to a biodiversity certificate.
14
(2) This section is enacted for the avoidance of doubt.
15
Part 5
Biodiversity certificates
Division 4
Cancellation of biodiversity certificate at the end of the permanence period
for a registered biodiversity project
Section 77
100
Nature Repair Market Bill 2023
No. , 2023
Division 4--Cancellation of biodiversity certificate at the
1
end of the permanence period for a registered
2
biodiversity project
3
77 Cancellation of biodiversity certificate at the end of the
4
permanence period for a registered biodiversity project
5
Scope
6
(1) This section applies if:
7
(a) the permanence period for a registered biodiversity project
8
ends; and
9
(b) a person is the holder of a biodiversity certificate that relates
10
to the project.
11
Cancellation of biodiversity certificate
12
(2) If the biodiversity certificate is not deposited with the Regulator:
13
(a) the biodiversity certificate is cancelled; and
14
(b) the Regulator must remove the entry for the certificate from
15
the person's Register account in which there is an entry for
16
the certificate.
17
(3) If the biodiversity certificate is deposited with the Regulator:
18
(a) the biodiversity certificate is cancelled; and
19
(b) the Regulator must remove the entry for the certificate from
20
the Commonwealth Register account in which there is an
21
entry for the certificate.
22
Note:
See also subsection 162(5).
23
Biodiversity certificates
Part 5
Cancellation of biodiversity certificate if registration of registered biodiversity project is
cancelled
Division 5
Section 77A
No. , 2023
Nature Repair Market Bill 2023
101
Division 5--Cancellation of biodiversity certificate if
1
registration of registered biodiversity project is
2
cancelled
3
77A Cancellation of biodiversity certificate if registration of
4
registered biodiversity project is cancelled
5
Scope
6
(1) This section applies if:
7
(a) the registration of a registered biodiversity project is
8
cancelled; and
9
(b) a person is the holder of a biodiversity certificate that relates
10
to the project.
11
Cancellation of biodiversity certificate
12
(2) If the biodiversity certificate is not deposited with the Regulator:
13
(a) the biodiversity certificate is cancelled; and
14
(b) the Regulator must remove the entry for the certificate from
15
the person's Register account in which there is an entry for
16
the certificate.
17
(3) If the biodiversity certificate is deposited with the Regulator:
18
(a) the biodiversity certificate is cancelled; and
19
(b) the Regulator must remove the entry for the certificate from
20
the Commonwealth Register account in which there is an
21
entry for the certificate.
22
Note:
See also subsection 162(5).
23
Part 6
Purchase of biodiversity certificates by the Commonwealth
Division 1
Introduction
Section 78
102
Nature Repair Market Bill 2023
No. , 2023
Part 6--Purchase of biodiversity certificates by the
1
Commonwealth
2
Division 1--Introduction
3
78 Simplified outline of this Part
4
The Secretary may, on behalf of the Commonwealth, enter into
5
contracts for the purchase by the Commonwealth of biodiversity
6
certificates.
7
Such a contract is to be known as a biodiversity conservation
8
contract.
9
The Secretary may enter into a biodiversity conservation contract
10
as the result of a biodiversity conservation purchasing process.
11
The Secretary may conduct biodiversity conservation purchasing
12
processes on behalf of the Commonwealth. Such processes may
13
include tender processes.
14
The Secretary must have regard to certain principles and other
15
matters when conducting a biodiversity conservation purchasing
16
process.
17
Purchase of biodiversity certificates by the Commonwealth
Part 6
Biodiversity conservation contracts
Division 2
Section 79
No. , 2023
Nature Repair Market Bill 2023
103
Division 2--Biodiversity conservation contracts
1
79 Biodiversity conservation contracts
2
(1) The Secretary may enter into contracts, on behalf of the
3
Commonwealth, for the purchase by the Commonwealth of
4
biodiversity certificates.
5
(2) It is immaterial whether the biodiversity certificates are in
6
existence when the contract is entered into.
7
(3) For the purposes of this Act, a contract entered into under
8
subsection (1) is to be known as a
biodiversity conservation
9
contract
.
10
(4) For the purposes of this Act, if the Secretary enters into a
11
biodiversity conservation contract with a person, the person is a
12
biodiversity conservation
contractor
.
13
80 When biodiversity conservation contracts may be entered into
14
(1) The Secretary may enter into a biodiversity conservation contract
15
under section 79 as the result of a biodiversity conservation
16
purchasing process conducted by the Secretary under section 84.
17
(2) The Secretary must not enter into a biodiversity conservation
18
contract under section 79 unless the biodiversity conservation
19
contractor for the contract is:
20
(a) a project proponent for a registered biodiversity project
21
(which need not be the project to which a biodiversity
22
certificate to be purchased under the contract relates); or
23
(b) the holder of a biodiversity certificate.
24
(3) The rules may prescribe further circumstances in which the
25
Secretary must not enter into a biodiversity conservation contract
26
under section 79.
27
Part 6
Purchase of biodiversity certificates by the Commonwealth
Division 2
Biodiversity conservation contracts
Section 81
104
Nature Repair Market Bill 2023
No. , 2023
81 Secretary has powers etc. of the Commonwealth
1
(1) The Secretary, on behalf of the Commonwealth, has all the rights,
2
responsibilities, duties and powers of the Commonwealth in
3
relation to the Commonwealth's capacity as a party to a
4
biodiversity conservation contract.
5
(2) Without limiting subsection (1):
6
(a) an amount payable by the Commonwealth under a
7
biodiversity conservation contract is to be paid by the
8
Secretary on behalf of the Commonwealth; and
9
(b) an amount payable to the Commonwealth under a
10
biodiversity conservation contract is to be paid to the
11
Secretary on behalf of the Commonwealth; and
12
(c) the Secretary may institute an action or proceeding on behalf
13
of the Commonwealth in relation to a matter that concerns a
14
biodiversity conservation contract.
15
82 Conferral of powers on the Secretary
16
The Secretary may exercise a power conferred on the Secretary by
17
a biodiversity conservation contract.
18
Purchase of biodiversity certificates by the Commonwealth
Part 6
Biodiversity conservation purchasing processes
Division 3
Section 83
No. , 2023
Nature Repair Market Bill 2023
105
Division 3--Biodiversity conservation purchasing
1
processes
2
83 Biodiversity conservation purchasing process
3
For the purposes of this Act, a
biodiversity conservation
4
purchasing process
means:
5
(a) a tender process; or
6
(b) a reverse auction; or
7
(c) any other process;
8
for the purchase by the Commonwealth of biodiversity certificates.
9
(It is immaterial whether the certificates are in existence when the
10
process is conducted.)
11
84 Conduct of biodiversity conservation purchasing processes
12
(1) The Secretary may, on behalf of the Commonwealth, conduct one
13
or more biodiversity conservation purchasing processes.
14
(2) In exercising the power conferred by subsection (1), the Secretary
15
must have regard to:
16
(a) the principles set out in subsection (3); and
17
(b) such other matters (if any) as are specified in the rules.
18
Principles for conduct of biodiversity conservation purchasing
19
processes
20
(3) The principles for conducting a biodiversity conservation
21
purchasing process are that the process should:
22
(a) facilitate the Commonwealth receiving value for money
23
when purchasing biodiversity certificates; and
24
(b) maximise the protection or enhancement of biodiversity that
25
results from the process; and
26
(c) be conducted in a manner that ensures that administrative
27
costs are reasonable; and
28
(d) be conducted in a manner that ensures the integrity of the
29
process; and
30
Part 6
Purchase of biodiversity certificates by the Commonwealth
Division 3
Biodiversity conservation purchasing processes
Section 84
106
Nature Repair Market Bill 2023
No. , 2023
(e) encourage competition; and
1
(f) provide for fair and ethical treatment of all participants in the
2
process.
3
(4) To avoid doubt, the mere fact that a person is:
4
(a) a project proponent for a registered biodiversity project; or
5
(b) a holder of a biodiversity certificate for a registered
6
biodiversity project;
7
does not automatically entitle the person to participate in a
8
biodiversity conservation purchasing process.
9
Purchase of biodiversity certificates by the Commonwealth
Part 6
Miscellaneous
Division 4
Section 85
No. , 2023
Nature Repair Market Bill 2023
107
Division 4--Miscellaneous
1
85 Rules may provide for certain matters relating to purchased
2
biodiversity certificates
3
The rules may make provision for and in relation to any or all of
4
the following matters in respect of biodiversity certificates
5
purchased by the Commonwealth under biodiversity conservation
6
contracts:
7
(a) transferring purchased certificates to a specified Register
8
account kept for the Commonwealth;
9
(b) prohibiting or restricting the transfer of biodiversity
10
certificates from such an account;
11
(c) cancelling biodiversity certificates for which there are entries
12
in such an account.
13
86 Certain instruments relating to Commonwealth procurement are
14
not applicable
15
An instrument made under section 105B of the
Public Governance,
16
Performance and Accountability Act 2013
does not apply in
17
relation to the functions and powers of the Secretary under
18
section 79 or 84 of this Act.
19
Note:
Section 105B of the
Public Governance, Performance and
20
Accountability Act 2013
provides for the making of instruments
21
relating to procurement.
22
87 Biodiversity conservation contracts are not instruments made
23
under this Act
24
To avoid doubt, a biodiversity conservation contract is taken not to
25
be an instrument made under this Act.
26
Part 7
Interests in land
Division 1
Introduction
Section 88
108
Nature Repair Market Bill 2023
No. , 2023
Part 7--Interests in land
1
Division 1--Introduction
2
88 Simplified outline of this Part
3
The registration of a biodiversity project may be subject to a
4
condition requiring the project proponent to obtain the consent of
5
the holders of certain interests in land before a biodiversity
6
certificate may be issued (see section 18 and paragraph 70(2)(d)).
7
This Part sets out the kinds of interests (
eligible interests
) that may
8
give rise to such a condition.
9
This Part also requires the Regulator to notify State and Territory
10
Crown lands Ministers of the registration of certain kinds of
11
biodiversity projects, and provides for entries to be recorded in title
12
registers in relation to biodiversity projects.
13
Interests in land
Part 7
Eligible interest in an area of land
Division 2
Section 89
No. , 2023
Nature Repair Market Bill 2023
109
Division 2--Eligible interest in an area of land
1
89 Eligible interest in an area of land--Torrens system land
2
Scope
3
(1) This section applies to an area of land if the area is Torrens system
4
land.
5
Eligible interest
6
(2) For the purposes of this Act, if:
7
(a) a person holds an estate in fee simple, or any other legal
8
estate or interest, in the whole or a part of the area of land;
9
and
10
(b) the estate or interest is registered under a Torrens system of
11
registration;
12
the estate or interest is an
eligible interest
held by the person in the
13
area of land.
14
(3) For the purposes of this Act, if:
15
(a) under subsection (2), a person holds an eligible interest in the
16
area of land; and
17
(b) another person:
18
(i) is a mortgagee of the eligible interest, where the
19
mortgage is registered under a Torrens system of
20
registration; or
21
(ii) a chargee of the eligible interest, where the charge is
22
registered under a Torrens system of registration;
23
the mortgage or charge is an
eligible interest
held by the other
24
person in the area of land.
25
(4) For the purposes of this Act, if the area of land:
26
(a) is Crown land; and
27
(b) is not an exclusive possession native title area; and
28
(c) is not land rights land;
29
Part 7
Interests in land
Division 2
Eligible interest in an area of land
Section 89
110
Nature Repair Market Bill 2023
No. , 2023
the Crown lands Minister of the State or Territory holds an
eligible
1
interest
in the area of land.
2
(5) The rules may provide that, for the purposes of this Act, a person
3
specified in, or ascertained in accordance with, the rules holds an
4
eligible interest
in the area of land.
5
(6) For the purposes of this Act, if:
6
(a) the area of land is land rights land; and
7
(b) the area of land is not an exclusive possession native title
8
area; and
9
(c) any of the following subparagraphs applies to the area of
10
land:
11
(i) a lease is in force over the land, and the grant of the
12
lease took place under a law of the Commonwealth that
13
makes provision for the grant of such things only to, or
14
for the benefit of, Aboriginal persons or Torres Strait
15
Islanders;
16
(ii) subparagraph (i) does not apply, and the land is held by
17
the Commonwealth;
18
(iii) subparagraph (i) does not apply, and the land is held by
19
a statutory authority of the Commonwealth;
20
then:
21
(d) if subparagraph (c)(i) applies--the Minister who administers
22
the law mentioned in that subparagraph holds an
eligible
23
interest
in the area of land; or
24
(e) if subparagraph (c)(ii) applies--the Minister who administers
25
the
Aboriginal Land Rights (Northern Territory) Act 1976
26
holds an
eligible interest
in the area of land; or
27
(f) if subparagraph (c)(iii) applies--the Minister who
28
administers the Act that establishes the statutory authority
29
holds an
eligible interest
in the area of land.
30
(7) For the purposes of this Act, if:
31
(a) the area of land is land rights land in a State or Territory; and
32
(b) the area of land is not an exclusive possession native title
33
area; and
34
Interests in land
Part 7
Eligible interest in an area of land
Division 2
Section 90
No. , 2023
Nature Repair Market Bill 2023
111
(c) none of the subparagraphs of paragraph (6)(c) applies to the
1
area of land; and
2
(d) the area of land is not freehold land rights land;
3
the Crown lands Minister of the State or Territory holds an
eligible
4
interest
in the area of land.
5
90 Eligible interest in an area of land--Crown land that is not
6
Torrens system land
7
Scope
8
(1) This section applies to an area of land in a State or Territory if the
9
area of land:
10
(a) is Crown land; and
11
(b) is not Torrens system land.
12
Eligible interest
13
(2) For the purposes of this Act, if the area of land is neither:
14
(a) an exclusive possession native title area; nor
15
(b) land rights land;
16
the Crown lands Minister of the State or Territory holds an
eligible
17
interest
in the area of land.
18
(3) For the purposes of this Act, if:
19
(a) a person (other than the State or Territory) holds a legal
20
estate or interest (the
relevant estate or interest
) in the whole
21
or a part of the area of land; and
22
(b) any of the following conditions are satisfied:
23
(i) the relevant estate or interest came into existence as a
24
result of a grant by the Crown in any capacity;
25
(ii) the relevant estate or interest was derived from an estate
26
or interest that came into existence as a result of a grant
27
by the Crown in any capacity;
28
(iii) the relevant estate or interest was created by or under a
29
law of the Commonwealth, a State or a Territory;
30
Part 7
Interests in land
Division 2
Eligible interest in an area of land
Section 90
112
Nature Repair Market Bill 2023
No. , 2023
(iv) the relevant estate or interest was derived from an estate
1
or interest that was created by or under a law of the
2
Commonwealth, a State or a Territory;
3
the relevant estate or interest is an
eligible interest
held by the
4
person in the area of land.
5
(4) For the purposes of this Act, if:
6
(a) under subsection (3), a person holds an eligible interest in the
7
area of land; and
8
(b) another person:
9
(i) is a mortgagee of the eligible interest; or
10
(ii) is a chargee of the eligible interest;
11
the mortgage or charge is an
eligible interest
held by the other
12
person in the area of land.
13
(5) The rules may provide that, for the purposes of this Act, a person
14
specified in, or ascertained in accordance with, the rules holds an
15
eligible interest
in the area of land.
16
(6) For the purposes of this Act, if:
17
(a) the area of land is land rights land; and
18
(b) the area of land is not an exclusive possession native title
19
area; and
20
(c) any of the following subparagraphs applies to the area of
21
land:
22
(i) a lease is in force over the land, and the grant of the
23
lease took place under a law of the Commonwealth that
24
makes provision for the grant of such things only to, or
25
for the benefit of, Aboriginal persons or Torres Strait
26
Islanders;
27
(ii) subparagraph (i) does not apply, and the land is held by
28
the Commonwealth;
29
(iii) subparagraph (i) does not apply, and the land is held by
30
a statutory authority of the Commonwealth;
31
then:
32
(d) if subparagraph (c)(i) applies--the Minister who administers
33
the law mentioned in that subparagraph holds an
eligible
34
interest
in the area of land; or
35
Interests in land
Part 7
Eligible interest in an area of land
Division 2
Section 92
No. , 2023
Nature Repair Market Bill 2023
113
(e) if subparagraph (c)(ii) applies--the Minister who administers
1
the
Aboriginal Land Rights (Northern Territory) Act 1976
2
holds an
eligible interest
in the area of land; or
3
(f) if subparagraph (c)(iii) applies--the Minister who
4
administers the Act that establishes the statutory authority
5
holds an
eligible interest
in the area of land.
6
(7) For the purposes of this Act, if:
7
(a) the area of land is land rights land in a State or Territory; and
8
(b) the area of land is not an exclusive possession native title
9
area; and
10
(c) none of the subparagraphs of paragraph (6)(c) applies to the
11
area of land; and
12
(d) the area of land is not freehold land rights land;
13
the Crown lands Minister of the State or Territory holds an
eligible
14
interest
in the area of land.
15
92 Eligible interest in an area of land--Aboriginal land council
16
For the purposes of this Act, an Aboriginal land council holds an
17
eligible interest
in an area of land if:
18
(a) under a law of the Commonwealth, a State or a Territory, the
19
Aboriginal land council makes a claim for the area of land to
20
become land rights land (within the meaning of the law); and
21
(b) the Minister who administers the law makes a decision that
22
the land become land rights land (within the meaning of the
23
law).
24
Part 7
Interests in land
Division 3
Freehold land rights land
Section 93
114
Nature Repair Market Bill 2023
No. , 2023
Division 3--Freehold land rights land
1
93 Regulator to notify Crown lands Minister of approval of
2
registration of biodiversity project
3
Scope
4
(1) This section applies if:
5
(a) the Regulator approves under section 15 the registration of a
6
biodiversity project; and
7
(b) the project area is, wholly or partly, freehold land rights land
8
in a particular State or Territory; and
9
(c) the project area is, wholly or partly, Crown land; and
10
(d) the project area is not wholly Torrens system land.
11
Notification
12
(2) As soon as practicable after giving the approval, the Regulator
13
must notify the Crown lands Minister of the State or Territory, in
14
writing, of the approval.
15
Interests in land
Part 7
Entries in title registers
Division 4
Section 94
No. , 2023
Nature Repair Market Bill 2023
115
Division 4--Entries in title registers
1
94 Entries in title registers--general
2
Scope
3
(1) This section applies to a registered biodiversity project.
4
Entries
5
(2) A relevant land registration official may make such entries or
6
notations in or on registers or other documents kept by the official
7
(in electronic form or otherwise) as the official thinks appropriate
8
for the purposes of drawing the attention of persons to:
9
(a) the existence of the registered biodiversity project; and
10
(b) the fact that requirements may arise under this Act in relation
11
to the project; and
12
(c) such other matters (if any) relating to this Act as the official
13
considers appropriate.
14
95 Entries in title registers--biodiversity maintenance areas
15
Scope
16
(1) This section applies to one or more areas of land if those areas of
17
land are biodiversity maintenance areas declared under a
18
biodiversity maintenance declaration.
19
Note:
See Part 14 (biodiversity maintenance declarations).
20
Entries
21
(2) A relevant land registration official may make such entries or
22
notations in or on registers or other documents kept by the official
23
(in electronic form or otherwise) as the official thinks appropriate
24
for the purposes of drawing the attention of persons to the
25
biodiversity maintenance declaration.
26
Part 8
Fit and proper person
Section 96
116
Nature Repair Market Bill 2023
No. , 2023
Part 8--Fit and proper person
1
2
96 Simplified outline of this Part
3
In determining whether a person is a fit and proper person, the
4
Regulator:
5
(a)
must have regard to certain matters; and
6
(b)
may have regard to certain matters.
7
97 Fit and proper person--individuals
8
Matters the Regulator must have regard to
9
(1) In determining whether an individual is a fit and proper person for
10
the purposes of this Act, the Regulator must have regard to the
11
following matters:
12
(a) whether the individual has been convicted of an offence
13
against, or ordered to pay a pecuniary penalty for
14
contravening a provision of, a law of the Commonwealth, a
15
State or a Territory, where the offence or provision relates to:
16
(i) dishonesty or fraudulent conduct; or
17
(ii) the environment; or
18
(iii) climate change; or
19
(iv) work health or safety;
20
(b) whether the individual has been convicted of an offence
21
against any of the following provisions of the
Criminal Code
:
22
(i) section 136.1 (false or misleading statements in
23
applications);
24
(ii) section 137.1 (false or misleading information);
25
(iii) section 137.2 (false or misleading documents);
26
(c) whether an order has been made against the individual under
27
section 76 (pecuniary penalties) of the
Competition and
28
Consumer Act 2010
;
29
Fit and proper person
Part 8
Section 97
No. , 2023
Nature Repair Market Bill 2023
117
(d) whether an order has been made against the individual under
1
section 224 (pecuniary penalties) of the Australian Consumer
2
Law;
3
(e) whether the individual has contravened this Act;
4
(f) whether the individual has contravened the
Carbon Credits
5
(Carbon Farming Initiative) Act 2011
or regulations or
6
legislative rules made under that Act;
7
(g) whether the individual has contravened the
National
8
Greenhouse and Energy Reporting Act 2007
or regulations
9
made under that Act;
10
(h) whether the individual has contravened the
Australian
11
National Registry of Emissions Units Act 2011
or regulations
12
made under that Act;
13
(i) whether an application under any of the following provisions
14
was refused on the ground that the Regulator was not
15
satisfied that the individual was a fit and proper person:
16
(i) section 11;
17
(ii) section 67;
18
(iii) rules made for the purposes of section 221;
19
(iv) a provision of this Act prescribed by the rules;
20
(j) whether the individual is an insolvent under administration;
21
(k) a matter (if any) prescribed by the rules;
22
(l) such other matters (if any) as the Regulator considers
23
relevant.
24
Matters the Regulator may have regard to
25
(2) In determining whether an individual is a fit and proper person for
26
the purposes of this Act, the Regulator may have regard to the
27
following matters:
28
(a) whether the individual has been convicted of an offence
29
against, or ordered to pay a pecuniary penalty for
30
contravening a provision of, a law of a foreign country,
31
where the offence or provision relates to:
32
(i) dishonesty or fraudulent conduct; or
33
(ii) the environment; or
34
(iii) climate change; or
35
Part 8
Fit and proper person
Section 98
118
Nature Repair Market Bill 2023
No. , 2023
(iv) work health or safety;
1
(b) whether, at any time during the previous 3 years, the
2
individual:
3
(i) engaged in conduct that resulted in the individual giving
4
an enforceable undertaking under a law of the
5
Commonwealth, a State or a Territory; or
6
(ii) breached an enforceable undertaking given by the
7
individual under a law of the Commonwealth, a State or
8
a Territory;
9
where that law relates to:
10
(iii) the environment; or
11
(iv) climate change; or
12
(v) work health or safety;
13
(c) a matter (if any) prescribed by the rules;
14
(d) such other matters (if any) as the Regulator considers
15
relevant.
16
Spent convictions
17
(3) To avoid doubt, nothing in this section affects the operation of
18
Part VIIC of the
Crimes Act 1914
.
19
(4) Rules made for the purposes of paragraph (1)(k) or (2)(c) must not
20
affect the operation of Part VIIC of the
Crimes Act 1914
.
21
Note:
Part VIIC of the
Crimes Act 1914
includes provisions that, in certain
22
circumstances, relieve persons from the requirement to disclose spent
23
convictions and require persons aware of such convictions to
24
disregard them.
25
98 Fit and proper person--corporations
26
Matters the Regulator must have regard to
27
(1) In determining whether a corporation is a fit and proper person for
28
the purposes of this Act, the Regulator must have regard to the
29
following matters:
30
(a) whether the corporation has been convicted of an offence
31
against, or ordered to pay a pecuniary penalty for
32
Fit and proper person
Part 8
Section 98
No. , 2023
Nature Repair Market Bill 2023
119
contravening a provision of, a law of the Commonwealth, a
1
State or a Territory, where the offence or provision relates to:
2
(i) dishonesty or fraudulent conduct; or
3
(ii) the environment; or
4
(iii) climate change; or
5
(iv) work health or safety;
6
(b) whether the corporation has been convicted of an offence
7
against any of the following provisions of the
Criminal Code
:
8
(i) section 136.1 (false or misleading statements in
9
applications);
10
(ii) section 137.1 (false or misleading information);
11
(iii) section 137.2 (false or misleading documents);
12
(c) whether an order has been made against the corporation
13
under section 76 (pecuniary penalties) of the
Competition
14
and Consumer Act 2010
;
15
(d) whether an order has been made against the corporation
16
under section 224 (pecuniary penalties) of the Australian
17
Consumer Law;
18
(e) whether the corporation has contravened this Act;
19
(f) whether the corporation has contravened the
Carbon Credits
20
(Carbon Farming Initiative) Act 2011
or regulations or
21
legislative rules made under that Act;
22
(g) whether the corporation has contravened the
National
23
Greenhouse and Energy Reporting Act 2007
or regulations
24
made under that Act;
25
(h) whether the corporation has contravened the
Australian
26
National Registry of Emissions Units Act 2011
or regulations
27
made under that Act;
28
(i) whether an application under any of the following provisions
29
was refused on the ground that the Regulator was not
30
satisfied that the corporation was a fit and proper person:
31
(i) section 11;
32
(ii) section 67;
33
(iii) rules made for the purposes of section 221;
34
(iv) a provision of this Act prescribed by the rules;
35
Part 8
Fit and proper person
Section 98
120
Nature Repair Market Bill 2023
No. , 2023
(j) whether the corporation is a corporation under external
1
administration;
2
(k) whether any of the events set out in paragraphs 97(1)(a) to (j)
3
have happened in relation to an executive officer of the
4
corporation;
5
(l) a matter (if any) prescribed by the rules;
6
(m) such other matters (if any) as the Regulator considers
7
relevant.
8
Matters the Regulator may have regard to
9
(2) In determining whether a corporation is a fit and proper person for
10
the purposes of this Act, the Regulator may have regard to the
11
following matters:
12
(a) whether the corporation has been convicted of an offence
13
against, or ordered to pay a pecuniary penalty for
14
contravening a provision of, a law of a foreign country,
15
where the offence or provision relates to:
16
(i) dishonesty or fraudulent conduct; or
17
(ii) the environment; or
18
(iii) climate change; or
19
(iv) work health or safety;
20
(b) whether, at any time during the previous 3 years, the
21
corporation:
22
(i) engaged in conduct that resulted in the corporation
23
giving an enforceable undertaking under a law of the
24
Commonwealth, a State or a Territory; or
25
(ii) breached an enforceable undertaking given by the
26
corporation under a law of the Commonwealth, a State
27
or a Territory;
28
where that law relates to:
29
(iii) the environment; or
30
(iv) climate change; or
31
(v) work health or safety;
32
(c) whether any of the events set out in paragraphs 97(2)(a) or
33
(b) have happened in relation to an executive officer of the
34
corporation;
35
Fit and proper person
Part 8
Section 99
No. , 2023
Nature Repair Market Bill 2023
121
(d) a matter (if any) prescribed by the rules;
1
(e) such other matters (if any) as the Regulator considers
2
relevant.
3
Spent convictions
4
(3) To avoid doubt, nothing in this section affects the operation of
5
Part VIIC of the
Crimes Act 1914
.
6
(4) Rules made for the purposes of paragraph (1)(l) or (2)(d) must not
7
affect the operation of Part VIIC of the
Crimes Act 1914
.
8
Note:
Part VIIC of the
Crimes Act 1914
includes provisions that, in certain
9
circumstances, relieve persons from the requirement to disclose spent
10
convictions and require persons aware of such convictions to
11
disregard them.
12
99 Fit and proper person--trusts
13
Matters the Regulator must have regard to
14
(1) In determining whether a trust is a fit and proper person for the
15
purposes of this Act, the Regulator must have regard to the
16
following matters:
17
(a) whether the trust or a trustee of the trust has been convicted
18
of an offence against, or ordered to pay a pecuniary penalty
19
for contravening a provision of, a law of the Commonwealth,
20
a State or a Territory, where the offence or provision relates
21
to:
22
(i) dishonesty or fraudulent conduct; or
23
(ii) the environment; or
24
(iii) climate change; or
25
(iv) work health or safety;
26
(b) whether a trustee of the trust has been convicted of an
27
offence against any of the following provisions of the
28
Criminal Code
:
29
(i) section 136.1 (false or misleading statements in
30
applications);
31
(ii) section 137.1 (false or misleading information);
32
(iii) section 137.2 (false or misleading documents);
33
Part 8
Fit and proper person
Section 99
122
Nature Repair Market Bill 2023
No. , 2023
(c) whether an order has been made against a trustee of the trust
1
under section 76 (pecuniary penalties) of the
Competition
2
and Consumer Act 2010
;
3
(d) whether an order has been made against a trustee of the trust
4
under section 224 (pecuniary penalties) of the Australian
5
Consumer Law;
6
(e) whether the trust or a trustee of the trust has contravened this
7
Act;
8
(f) whether the trust or a trustee of the trust has contravened the
9
Carbon Credits (Carbon Farming Initiative) Act 2011
or
10
regulations or legislative rules made under that Act;
11
(g) whether the trust or a trustee of the trust has contravened the
12
National Greenhouse and Energy Reporting Act 2007
or
13
regulations made under that Act;
14
(h) whether the trust or a trustee of the trust has contravened the
15
Australian National Registry of Emissions Units Act 2011
or
16
regulations made under that Act;
17
(i) whether an application under any of the following provisions
18
was refused on the ground that the Regulator was not
19
satisfied that the trust or a trustee of the trust was a fit and
20
proper person:
21
(i) section 11;
22
(ii) section 67;
23
(iii) rules made for the purposes of section 221;
24
(iv) a provision of this Act prescribed by the rules;
25
(j) whether a trustee of the trust is a body corporate under
26
external administration;
27
(k) whether a trustee of the trust is an insolvent under
28
administration;
29
(l) a matter (if any) prescribed by the rules;
30
(m) such other matters (if any) as the Regulator considers
31
relevant.
32
Matters the Regulator may have regard to
33
(2) In determining whether a trust is a fit and proper person for the
34
purposes of this Act, the Regulator may have regard to the
35
following matters:
36
Fit and proper person
Part 8
Section 99
No. , 2023
Nature Repair Market Bill 2023
123
(a) whether a trustee of the trust has been convicted of an
1
offence against, or ordered to pay a pecuniary penalty for
2
contravening a provision of, a law of a foreign country,
3
where the offence or provision relates to:
4
(i) dishonesty or fraudulent conduct; or
5
(ii) the environment; or
6
(iii) climate change; or
7
(iv) work health or safety;
8
(b) whether, at any time during the previous 3 years, a trustee of
9
the trust:
10
(i) engaged in conduct that resulted in the trustee giving an
11
enforceable undertaking under a law of the
12
Commonwealth, a State or a Territory; or
13
(ii) breached an enforceable undertaking given by the
14
trustee under a law of the Commonwealth, a State or a
15
Territory;
16
where that law relates to:
17
(iii) the environment; or
18
(iv) climate change; or
19
(v) work health or safety;
20
(c) a matter (if any) prescribed by the rules;
21
(d) such other matters (if any) as the Regulator considers
22
relevant.
23
Spent convictions
24
(3) To avoid doubt, nothing in this section affects the operation of
25
Part VIIC of the
Crimes Act 1914
.
26
(4) Rules made for the purposes of paragraph (1)(l) or (2)(c) must not
27
affect the operation of Part VIIC of the
Crimes Act 1914
.
28
Note:
Part VIIC of the
Crimes Act 1914
includes provisions that, in certain
29
circumstances, relieve persons from the requirement to disclose spent
30
convictions and require persons aware of such convictions to
31
disregard them.
32
Part 8
Fit and proper person
Section 99A
124
Nature Repair Market Bill 2023
No. , 2023
99A Fit and proper person--non-corporate government bodies
1
Matters the Regulator must have regard to
2
(1) In determining whether a non-corporate government body is a fit
3
and proper person for the purposes of this Act, the Regulator must
4
have regard to the following matters:
5
(a) whether the non-corporate government body has been
6
convicted of an offence against, or ordered to pay a pecuniary
7
penalty for contravening a provision of, a law of the
8
Commonwealth, a State or a Territory, where the offence or
9
provision relates to:
10
(i) dishonesty or fraudulent conduct; or
11
(ii) the environment; or
12
(iii) climate change; or
13
(iv) work health or safety;
14
(b) whether the non-corporate government body has been
15
convicted of an offence against any of the following
16
provisions of the
Criminal Code
:
17
(i) section 136.1 (false or misleading statements in
18
applications);
19
(ii) section 137.1 (false or misleading information);
20
(iii) section 137.2 (false or misleading documents);
21
(c) whether an order has been made against the non-corporate
22
government body under section 76 (pecuniary penalties) of
23
the
Competition and Consumer Act 2010
;
24
(d) whether an order has been made against the non-corporate
25
government body under section 224 (pecuniary penalties) of
26
the Australian Consumer Law;
27
(e) whether the non-corporate government body has contravened
28
this Act;
29
(f) whether the non-corporate government body has contravened
30
the
Carbon Credits (Carbon Farming Initiative) Act 2011
or
31
regulations or legislative rules made under that Act;
32
(g) whether the non-corporate government body has contravened
33
the
National Greenhouse and Energy Reporting Act 2007
or
34
regulations made under that Act;
35
Fit and proper person
Part 8
Section 99A
No. , 2023
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(h) whether the non-corporate government body has contravened
1
the
Australian National Registry of Emissions Units Act 2011
2
or regulations made under that Act;
3
(i) whether an application under any of the following provisions
4
was refused on the ground that the Regulator was not
5
satisfied that the non-corporate government body was a fit
6
and proper person:
7
(i) section 11;
8
(ii) section 67;
9
(iii) rules made for the purposes of section 221;
10
(iv) a provision of this Act prescribed by the rules;
11
(j) a matter (if any) prescribed by the rules;
12
(k) such other matters (if any) as the Regulator considers
13
relevant.
14
Matters the Regulator may have regard to
15
(2) In determining whether a non-corporate government body is a fit
16
and proper person for the purposes of this Act, the Regulator may
17
have regard to the following matters:
18
(a) whether the non-corporate government body has been
19
convicted of an offence against, or ordered to pay a pecuniary
20
penalty for contravening a provision of, a law of a foreign
21
country, where the offence or provision relates to:
22
(i) dishonesty or fraudulent conduct; or
23
(ii) the environment; or
24
(iii) climate change; or
25
(iv) work health or safety;
26
(b) whether, at any time during the previous 3 years, the
27
non-corporate government body:
28
(i) engaged in conduct that resulted in the non-corporate
29
government body giving an enforceable undertaking
30
under a law of the Commonwealth, a State or a
31
Territory; or
32
(ii) breached an enforceable undertaking given by the
33
non-corporate government body under a law of the
34
Commonwealth, a State or a Territory;
35
Part 8
Fit and proper person
Section 99A
126
Nature Repair Market Bill 2023
No. , 2023
where that law relates to:
1
(iii) the environment; or
2
(iv) climate change; or
3
(v) work health or safety;
4
(c) a matter (if any) prescribed by the rules;
5
(d) such other matters (if any) as the Regulator considers
6
relevant.
7
Spent convictions
8
(3) To avoid doubt, nothing in this section affects the operation of
9
Part VIIC of the
Crimes Act 1914
.
10
(4) Rules made for the purposes of paragraph (1)(j) or (2)(c) must not
11
affect the operation of Part VIIC of the
Crimes Act 1914
.
12
Note:
Part VIIC of the
Crimes Act 1914
includes provisions that, in certain
13
circumstances, relieve persons from the requirement to disclose spent
14
convictions and require persons aware of such convictions to
15
disregard them.
16
Reporting and notification requirements
Part 9
Introduction
Division 1
Section 100
No. , 2023
Nature Repair Market Bill 2023
127
Part 9--Reporting and notification requirements
1
Division 1--Introduction
2
100 Simplified outline of this Part
3
If a project proponent applies for the Regulator to issue a
4
biodiversity certificate, the application must be accompanied by a
5
category A biodiversity project report.
6
After a biodiversity certificate is issued in respect of a project, the
7
project proponent must give subsequent category A biodiversity
8
project reports for the rest of the permanence period of the project
9
(unless an exemption applies).
10
If a biodiversity certificate has not been issued in respect of a
11
project, the project proponent must give category B biodiversity
12
project reports.
13
Division 3 sets out requirements for a project proponent to notify
14
the Regulator of various matters, including the following:
15
(a)
the project proponent ceasing to have the right to carry
16
out the project;
17
(b)
the project proponent becoming aware of a significant
18
reversal of the biodiversity outcome to which the project
19
relates;
20
(c)
other matters set out in the rules.
21
Part 9
Reporting and notification requirements
Division 2
Reporting requirements
Section 101
128
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No. , 2023
Division 2--Reporting requirements
1
Subdivision A--Category A biodiversity project reports
2
101 Category A biodiversity project reports--first report
3
(1) This section applies if the project proponent for a registered
4
biodiversity project applies under section 67 for the Regulator to
5
issue a biodiversity certificate in respect of the project.
6
(2) The application must be accompanied by a written report (a
7
category A biodiversity
project report
), in accordance with
8
section 103, about the project.
9
Note:
See paragraph 68(1)(f).
10
(3) The report must relate to a period (the
reporting period
for the
11
report) that:
12
(a) begins when the project was registered; and
13
(b) ends within 6 months before the application is made.
14
(4) However, if a category B biodiversity project report about the
15
project was previously given for a period (the
category B period
),
16
the category B period is not included in the reporting period unless
17
the category A biodiversity project report is required to set out
18
information that was not set out in the category B biodiversity
19
project report.
20
102 Category A biodiversity project reports--subsequent reports
21
(1) This section applies to a registered biodiversity project if the
22
Regulator has issued a biodiversity certificate in relation to the
23
project (whether or not the certificate is in effect).
24
(2) The project proponent for the project must give the Regulator a
25
written report (a
category A biodiversity project report
) in
26
accordance with section 103 about the project for a period that:
27
(a) is expressed to be the
reporting period
for the report; and
28
Reporting and notification requirements
Part 9
Reporting requirements
Division 2
Section 102
No. , 2023
Nature Repair Market Bill 2023
129
(b) begins immediately after the end of the previous reporting
1
period for a report under this section, or section 101, in
2
relation to the project; and
3
(c) subject to paragraph (e), is not shorter than:
4
(i) 6 months; or
5
(ii) if, under the rules, a specified lesser number of months
6
is the minimum number of months applicable to the
7
report--that specified lesser number of months; and
8
(d) subject to paragraph (e), is not longer than 5 years; and
9
(e) does not end after the end of the permanence period for the
10
project.
11
(3) The Regulator may, by written notice given to the project
12
proponent for the project, exempt the project from subsection (2)
13
if:
14
(a) the project proponent requests the exemption; and
15
(b) the Regulator is satisfied that it is appropriate to exempt the
16
project, having regard to:
17
(i) the stage of the project; and
18
(ii) such other matters (if any) as the Regulator considers
19
relevant.
20
Note:
For review of decisions, see Part 20.
21
(4) The project proponent for the project contravenes this subsection
22
if:
23
(a) subsection (2) requires the project proponent to give a
24
category A biodiversity project report for a reporting period;
25
and
26
(b) the project proponent does not comply with the requirement
27
before the end of the period mentioned in
28
paragraph 103(1)(h).
29
Civil penalty:
200 penalty units.
30
(5) The maximum civil penalty for each day that a contravention of
31
subsection (4) continues is 5% of the maximum civil penalty that
32
can be imposed in respect of that contravention.
33
Note:
Subsection (4) is a continuing civil penalty provision under section 93
34
of the Regulatory Powers Act.
35
Part 9
Reporting and notification requirements
Division 2
Reporting requirements
Section 103
130
Nature Repair Market Bill 2023
No. , 2023
103 Requirements for category A biodiversity project reports
1
(1) A category A biodiversity project report about a registered
2
biodiversity project for a reporting period must:
3
(a) be given in the manner and form prescribed by the rules; and
4
(b) set out the information (if any) specified in the rules; and
5
(c) set out the information (if any) specified in the methodology
6
determination that covers the project; and
7
(d) if, under the rules or the methodology determination that
8
covers the project, the category A biodiversity project report
9
is subject to audit under this Act--be accompanied by an
10
audit report that is:
11
(i) prescribed by the rules or the methodology
12
determination that covers the project (as the case
13
requires); and
14
(ii) prepared by a registered greenhouse and energy auditor
15
who has been appointed as an audit team leader for the
16
purpose; and
17
(e) if, before the category A biodiversity project report was
18
given to the Regulator, the Regulator gave the project
19
proponent a written notice stating that the report would be
20
subject to audit under this Act--be accompanied by an audit
21
report that is:
22
(i) prescribed by the rules; and
23
(ii) prepared by a registered greenhouse and energy auditor
24
who has been appointed as an audit team leader for the
25
purpose; and
26
(f) be accompanied by such other documents (if any) as are
27
specified in the rules; and
28
(g) be accompanied by such other documents (if any) as are
29
specified in the methodology determination that covers the
30
project; and
31
(h) for a category A biodiversity project report under section 102
32
(subsequent biodiversity project reports)--be given to the
33
Regulator within:
34
(i) 6 months after the end of the reporting period; or
35
Reporting and notification requirements
Part 9
Reporting requirements
Division 2
Section 103
No. , 2023
Nature Repair Market Bill 2023
131
(ii) if a greater number of months is specified in the
1
methodology determination that covers the project--
2
that greater number of months after the end of the
3
reporting period.
4
(2) To avoid doubt, a category A biodiversity project report for a
5
period may deal with matters that occur before the start of the
6
period.
7
(3) Information specified in rules made for the purposes of
8
paragraph (1)(b) or a provision of a methodology determination
9
made for the purposes of paragraph (1)(c) may relate to a matter
10
arising before, during or after the reporting period.
11
(4) Without limiting paragraph (1)(d), the rules or a methodology
12
determination may provide that a Category A biodiversity project
13
report is subject to audit under this Act if either or both of the
14
following apply:
15
(a) the report is specified in the rules or determination (as the
16
case may be);
17
(b) the report is for a reporting period specified in, or ascertained
18
in accordance with, the rules or determination (as the case
19
may be).
20
Note:
For specification by class, see subsection 13(3) of the
Legislation Act
21
2003
.
22
(5) Paragraphs (1)(d) and (e) do not apply to a category A biodiversity
23
project report about a registered biodiversity project for a reporting
24
period if the Regulator and the project proponent for the project
25
have entered into an alternative assurance agreement that applies to
26
the project for the period.
27
(6) A document specified in rules made for the purposes of
28
paragraph (1)(f) or a provision of a methodology determination
29
made for the purposes of paragraph (1)(g) may relate to a matter
30
arising before, during or after the reporting period.
31
Part 9
Reporting and notification requirements
Division 2
Reporting requirements
Section 104
132
Nature Repair Market Bill 2023
No. , 2023
Subdivision B--Category B biodiversity project reports
1
104 Category B biodiversity project reports
2
(1) This section applies if the Regulator has not issued a biodiversity
3
certificate in relation to a registered biodiversity project.
4
(2) The project proponent for the project must give the Regulator a
5
written report (a
category B biodiversity project report
) for each
6
period that, under the rules, is a
reporting period
for the purposes
7
of this section.
8
(3) A category B biodiversity project report about a project for a
9
reporting period must:
10
(a) be given in the manner and form prescribed by the rules; and
11
(b) set out the information (if any) specified in the rules; and
12
(c) set out the information (if any) specified in the methodology
13
determination that covers the project; and
14
(d) if, under the rules or the methodology determination that
15
covers the project, the category B biodiversity project report
16
is subject to audit under this Act--be accompanied by an
17
audit report that is:
18
(i) prescribed by the rules or the methodology
19
determination that covers the project (as the case
20
requires); and
21
(ii) prepared by a registered greenhouse and energy auditor
22
who has been appointed as an audit team leader for the
23
purpose; and
24
(e) if, before the category B biodiversity project report was given
25
to the Regulator, the Regulator gave the project proponent a
26
written notice stating that the report would be subject to audit
27
under this Act--be accompanied by an audit report that is:
28
(i) prescribed by the rules; and
29
(ii) prepared by a registered greenhouse and energy auditor
30
who has been appointed as an audit team leader for the
31
purpose; and
32
(f) be accompanied by such other documents (if any) as are
33
specified in the rules; and
34
Reporting and notification requirements
Part 9
Reporting requirements
Division 2
Section 104
No. , 2023
Nature Repair Market Bill 2023
133
(g) be accompanied by such other documents (if any) as are
1
specified in the methodology determination that covers the
2
project; and
3
(h) be given to the Regulator within the period ascertained in
4
accordance with the rules.
5
(4) Without limiting paragraph (3)(d), the rules or a methodology
6
determination may provide that a Category B biodiversity project
7
report is subject to audit under this Act if either or both of the
8
following apply:
9
(a) the report is specified in the rules or determination (as the
10
case may be);
11
(b) the report is for a reporting period specified in, or ascertained
12
in accordance with, the rules or determination (as the case
13
may be).
14
Note:
For specification by class, see subsection 13(3) of the
Legislation Act
15
2003
.
16
(5) Paragraphs (3)(d) and (e) do not apply to a category B biodiversity
17
project report about a registered biodiversity project for a reporting
18
period if the Regulator and the project proponent for the project
19
have entered into an alternative assurance agreement that applies to
20
the project for the period.
21
(6) To avoid doubt, a category B biodiversity project report for a
22
period may deal with matters that occur before the start of the
23
period.
24
(7) Information specified in rules made for the purposes of
25
paragraph (3)(b) or a provision of a methodology determination
26
made for the purposes of paragraph (3)(c) may relate to a matter
27
arising before, during or after the reporting period.
28
(8) A document specified in rules made for the purposes of
29
paragraph (3)(f) or a provision of a methodology determination
30
made for the purposes of paragraph (3)(g) may relate to a matter
31
arising before, during or after the reporting period.
32
Part 9
Reporting and notification requirements
Division 2
Reporting requirements
Section 104A
134
Nature Repair Market Bill 2023
No. , 2023
Civil penalty provision
1
(9) The project proponent for the project contravenes this subsection
2
if:
3
(a) subsection (2) requires the project proponent to give a
4
category B biodiversity project report for a reporting period;
5
and
6
(b) the project proponent does not comply with the requirement
7
before the end of the period ascertained in accordance with
8
rules made for the purposes of paragraph (3)(h).
9
Civil penalty:
200 penalty units.
10
(10) The maximum civil penalty for each day that a contravention of
11
subsection (9) continues is 5% of the maximum civil penalty that
12
can be imposed in respect of that contravention.
13
Note:
Subsection (9) is a continuing civil penalty provision under section 93
14
of the Regulatory Powers Act.
15
Subdivision C--Alternative assurance agreements
16
104A Alternative assurance agreements
17
(1) The Regulator and the project proponent for a registered
18
biodiversity project may enter into a written agreement that:
19
(a) applies to a specified reporting period; and
20
(b) is for the purpose of providing assurance to the Regulator
21
about the project proponent's compliance with this Act in
22
relation to the project during the reporting period; and
23
(c) contains one or more assurance measures, where each
24
measure is of a kind prescribed by the rules.
25
(2) An agreement under subsection (1) is to be known as an
26
alternative assurance agreement
.
27
Civil penalty provision
28
(3) The project proponent for a registered biodiversity project
29
contravenes this subsection if:
30
Reporting and notification requirements
Part 9
Reporting requirements
Division 2
Section 104A
No. , 2023
Nature Repair Market Bill 2023
135
(a) the project proponent enters into an alternative assurance
1
agreement with the Regulator; and
2
(b) the project proponent does not comply with the alternative
3
assurance agreement.
4
Civil penalty:
200 penalty units.
5
(4) The maximum civil penalty for each day that a contravention of
6
subsection (3) continues is 5% of the maximum civil penalty that
7
can be imposed in respect of that contravention.
8
Note:
Subsection (3) is a continuing civil penalty provision under section 93
9
of the Regulatory Powers Act.
10
Part 9
Reporting and notification requirements
Division 3
Notification requirements
Section 105
136
Nature Repair Market Bill 2023
No. , 2023
Division 3--Notification requirements
1
105 Notification requirement--project proponent ceases to have
2
right to carry out project
3
Scope
4
(1) This section applies to an eligible person if:
5
(a) the eligible person is the project proponent of a registered
6
biodiversity project that has one project proponent; and
7
(b) the eligible person ceases to have a right that is necessary for
8
the project to be carried out.
9
(2) This section also applies to an eligible person if:
10
(a) the eligible person is one of the project proponents of a
11
registered biodiversity project that has multiple project
12
proponents; and
13
(b) any of the project proponents ceases to have a right that is
14
necessary for the project to be carried out; and
15
(c) the cessation results in no project proponent having that right.
16
Notification
17
(3) The eligible person must, within 90 days after the cessation occurs,
18
notify the Regulator, in writing, of the cessation.
19
Civil penalty:
200 penalty units.
20
(4) The maximum civil penalty for each day that a contravention of
21
subsection (3) continues is 5% of the maximum civil penalty that
22
can be imposed in respect of that contravention.
23
Note:
Subsection (3) is a continuing civil penalty provision under section 93
24
of the Regulatory Powers Act.
25
Reporting and notification requirements
Part 9
Notification requirements
Division 3
Section 106
No. , 2023
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137
106 Notification requirement--withdrawal or cessation of
1
regulatory approval
2
Scope
3
(1) This section applies to the project proponent of a registered
4
biodiversity project if a regulatory approval required for the project
5
to be carried out:
6
(a) is withdrawn; or
7
(b) otherwise ceases to have effect for any reason.
8
Notification
9
(2) The project proponent must, within 90 days after the withdrawal or
10
cessation occurs, notify the Regulator, in writing, of the withdrawal
11
or cessation.
12
Civil penalty:
200 penalty units.
13
(3) The maximum civil penalty for each day that a contravention of
14
subsection (2) continues is 5% of the maximum civil penalty that
15
can be imposed in respect of that contravention.
16
Note:
Subsection (2) is a continuing civil penalty provision under section 93
17
of the Regulatory Powers Act.
18
107 Notification requirement--death of project proponent
19
Scope
20
(1) This section applies if a person who is the project proponent for a
21
registered biodiversity project dies.
22
Notification
23
(2) The person's legal personal representative must, within 90 days
24
after the death, notify the Regulator, in writing, of the death.
25
Civil penalty:
60 penalty units.
26
Part 9
Reporting and notification requirements
Division 3
Notification requirements
Section 108
138
Nature Repair Market Bill 2023
No. , 2023
(3) The maximum civil penalty for each day that a contravention of
1
subsection (2) continues is 5% of the maximum civil penalty that
2
can be imposed in respect of that contravention.
3
Note:
Subsection (2) is a continuing civil penalty provision under section 93
4
of the Regulatory Powers Act.
5
108 Notification requirement--methodology determinations
6
Scope
7
(1) This section applies if:
8
(a) there is a registered biodiversity project; and
9
(b) under the methodology determination that covers the project,
10
the project proponent for the project is subject to a
11
requirement to notify the Regulator of one or more matters
12
relating to the project.
13
Notification
14
(2) The project proponent must comply with the requirement.
15
Civil penalty:
60 penalty units.
16
(3) The maximum civil penalty for each day that a contravention of
17
subsection (2) continues is 5% of the maximum civil penalty that
18
can be imposed in respect of that contravention.
19
Note:
Subsection (2) is a continuing civil penalty provision under section 93
20
of the Regulatory Powers Act.
21
109 Notification requirement--reversal of biodiversity outcome
22
Scope
23
(1) This section applies if:
24
(a) there is a registered biodiversity project; and
25
(b) the project proponent for the project becomes aware of a
26
significant reversal of the biodiversity outcome to which the
27
project relates.
28
Note:
See section 111.
29
Reporting and notification requirements
Part 9
Notification requirements
Division 3
Section 110
No. , 2023
Nature Repair Market Bill 2023
139
Notification
1
(2) The project proponent must notify the Regulator, in writing, of the
2
reversal within 60 days after the project proponent becomes aware
3
of the reversal.
4
Civil penalty:
200 penalty units.
5
(3) The maximum civil penalty for each day that a contravention of
6
subsection (2) continues is 5% of the maximum civil penalty that
7
can be imposed in respect of that contravention.
8
Note:
Subsection (2) is a continuing civil penalty provision under section 93
9
of the Regulatory Powers Act.
10
110 Notification requirement--event or conduct that causes, or is
11
likely to cause, reversal of biodiversity outcome
12
Scope
13
(1) This section applies if:
14
(a) there is a registered biodiversity project; and
15
(b) the project proponent for the project becomes aware of any of
16
the following:
17
(i) a natural disturbance that causes a significant reversal of
18
the biodiversity outcome to which the project relates;
19
(ii) a natural disturbance that is likely to cause a significant
20
reversal of the biodiversity outcome to which the project
21
relates;
22
(iii) conduct engaged in by the project proponent for the
23
project, or any other person, that causes a significant
24
reversal of the biodiversity outcome to which the project
25
relates;
26
(iv) conduct engaged in by the project proponent for the
27
project, or any other person, that is likely to cause a
28
significant reversal of the biodiversity outcome to which
29
the project relates.
30
Note:
See section 111.
31
Part 9
Reporting and notification requirements
Division 3
Notification requirements
Section 111
140
Nature Repair Market Bill 2023
No. , 2023
Notification
1
(2) The project proponent must notify the Regulator, in writing, of the
2
matter mentioned in paragraph (1)(b) within 60 days after the
3
project proponent becomes aware of the matter.
4
Civil penalty:
200 penalty units.
5
(3) The maximum civil penalty for each day that a contravention of
6
subsection (2) continues is 5% of the maximum civil penalty that
7
can be imposed in respect of that contravention.
8
Note:
Subsection (2) is a continuing civil penalty provision under section 93
9
of the Regulatory Powers Act.
10
111 Significant reversals in biodiversity outcomes--notification
11
requirements
12
(1) The rules may prescribe circumstances in which, for the purposes
13
of paragraphs 109(1)(b) and 110(1)(b):
14
(a) there is taken to have been a reversal of a biodiversity
15
outcome to which a registered biodiversity project relates;
16
and
17
(b) the reversal is taken to be significant, or not taken to be
18
significant.
19
(2) This section does not limit section 148 (significant reversals in
20
biodiversity outcomes--relinquishment requirements).
21
112 Notification requirement--event relevant to whether a project
22
proponent is a fit and proper person
23
Scope
24
(1) This section applies to a project proponent of a registered
25
biodiversity project if:
26
(a) in a case where the project proponent is an individual--an
27
event set out in paragraph 97(1)(a), (b), (c), (d) or (j) or (2)(a)
28
occurred in relation to the project proponent; or
29
(b) in a case where the project proponent is a corporation:
30
Reporting and notification requirements
Part 9
Notification requirements
Division 3
Section 112
No. , 2023
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141
(i) an event set out in paragraph 98(1)(a), (b), (c), (d) or (j)
1
or (2)(a) occurred in relation to the project proponent; or
2
(ii) an event set out in paragraph 97(1)(a), (b), (c), (d) or (j)
3
or (2)(a) occurred in relation to an executive officer of
4
the project proponent; or
5
(c) in a case where the project proponent is a trust:
6
(i) an event set out in paragraph 99(1)(a), (b), (c) or (d) or
7
(2)(a) occurred in relation to the project proponent; or
8
(ii) an event set out in paragraph 97(1)(a), (b), (c), (d) or (j)
9
or (2)(a) occurred in relation to a trustee of the project
10
proponent; or
11
(d) in a case where the project proponent is a non-corporate
12
government body--an event set out in paragraph 99A(1)(a),
13
(b), (c), (d) or (i) or (2)(a) occurred in relation to the project
14
proponent; or
15
(e) an event prescribed by the rules has occurred in relation to
16
the project proponent.
17
(2) However, this section does not apply to a project proponent of a
18
registered biodiversity project if the event consists of a breach of:
19
(a) this Act or an instrument under this Act; or
20
(b) a climate change law (within the meaning of the
Clean
21
Energy Regulator Act 2011
).
22
Notification
23
(3) The project proponent must, within 90 days after the event, notify
24
the Regulator, in writing, of the event.
25
Civil penalty:
200 penalty units.
26
(4) The maximum civil penalty for each day that a contravention of
27
subsection (3) continues is 5% of the maximum civil penalty that
28
can be imposed in respect of that contravention.
29
Note:
Subsection (3) is a continuing civil penalty provision under section 93
30
of the Regulatory Powers Act.
31
Part 9
Reporting and notification requirements
Division 3
Notification requirements
Section 113
142
Nature Repair Market Bill 2023
No. , 2023
113 Notification requirement--variation of project plan
1
(1) If:
2
(a) the project plan for a registered biodiversity project is varied;
3
and
4
(b) the variation is not of a minor nature;
5
the project proponent for the project must, within 60 days after the
6
variation has taken effect:
7
(c) notify the Regulator, in writing, of:
8
(i) the details of the variation; and
9
(ii) the date the variation took effect; and
10
(d) give the Regulator a copy of the project plan as varied.
11
Civil penalty:
60 penalty units.
12
(2) The maximum civil penalty for each day that a contravention of
13
subsection (1) continues is 5% of the maximum civil penalty that
14
can be imposed in respect of that contravention.
15
Note:
Subsection (1) is a continuing civil penalty provision under section 93
16
of the Regulatory Powers Act.
17
(3) If:
18
(a) the project plan for a registered biodiversity project is varied;
19
and
20
(b) the variation is of a minor nature;
21
the Regulator may, by written notice given to the project proponent
22
for the project, require the project proponent to:
23
(c) give the Regulator a copy of the project plan as varied; and
24
(d) do so within 60 days after the notice is given.
25
Civil penalty:
60 penalty units.
26
(4) The maximum civil penalty for each day that a contravention of
27
subsection (3) continues is 5% of the maximum civil penalty that
28
can be imposed in respect of that contravention.
29
Note:
Subsection (3) is a continuing civil penalty provision under section 93
30
of the Regulatory Powers Act.
31
Reporting and notification requirements
Part 9
Notification requirements
Division 3
Section 114
No. , 2023
Nature Repair Market Bill 2023
143
114 The rules may impose notification requirements
1
(1) The rules may make provision requiring the project proponent of a
2
registered biodiversity project to notify the Regulator of a matter
3
within a period specified in the rules.
4
(2) A matter specified in rules made for the purposes of subsection (1)
5
must be relevant to the operation of this Act.
6
Notification
7
(3) If a person is subject to a requirement under rules made for the
8
purposes of subsection (1), the person must comply with that
9
requirement within the period specified in those rules.
10
Civil penalty:
60 penalty units.
11
(4) The maximum civil penalty for each day that a contravention of
12
subsection (3) continues is 5% of the maximum civil penalty that
13
can be imposed in respect of that contravention.
14
Note:
Subsection (3) is a continuing civil penalty provision under section 93
15
of the Regulatory Powers Act.
16
Part 10
Information-gathering powers
Section 115
144
Nature Repair Market Bill 2023
No. , 2023
Part 10--Information-gathering powers
1
2
115 Simplified outline of this Part
3
The Regulator may obtain information or documents.
4
116 Regulator may obtain information or documents
5
Scope
6
(1) This section applies to a person if the Regulator believes on
7
reasonable grounds that the person has information or a document
8
that is relevant to the operation of this Act.
9
Requirement
10
(2) The Regulator may, by written notice given to the person, require
11
the person:
12
(a) to give to the Regulator, within the period and in the manner
13
and form specified in the notice, any such information; or
14
(b) to produce to the Regulator, within the period and in the
15
manner specified in the notice, any such documents; or
16
(c) to make copies of any such documents and to produce to the
17
Regulator, within the period and in the manner specified in
18
the notice, those copies.
19
(3) A period specified under subsection (2) must not be shorter than 14
20
days after the notice is given.
21
Compliance
22
(4) A person must comply with a requirement under subsection (2) to
23
the extent that the person is capable of doing so.
24
Civil penalty:
60 penalty units.
25
Information-gathering powers
Part 10
Section 117
No. , 2023
Nature Repair Market Bill 2023
145
(5) The maximum civil penalty for each day that a contravention of
1
subsection (4) continues is 5% of the maximum civil penalty that
2
can be imposed in respect of that contravention.
3
Note:
Subsection (4) is a continuing civil penalty provision under section 93
4
of the Regulatory Powers Act.
5
No limitation
6
(6) This section is not limited by any other provision of this Act that
7
relates to the powers of the Regulator to obtain information or
8
documents.
9
117 Copying documents--compensation
10
A person is entitled to be paid by the Regulator, on behalf of the
11
Commonwealth, reasonable compensation for complying with a
12
requirement covered by paragraph 116(2)(c).
13
118 Copies of documents
14
(1) The Regulator may:
15
(a) inspect a document or copy produced under
16
subsection 116(2); and
17
(b) make and retain copies of, or take and retain extracts from,
18
such a document.
19
(2) The Regulator may retain possession of a copy of a document
20
produced in accordance with a requirement covered by
21
paragraph 116(2)(c).
22
119 Regulator may retain documents
23
(1) The Regulator may take, and retain for as long as is necessary,
24
possession of a document produced under subsection 116(2).
25
(2) The person otherwise entitled to possession of the document is
26
entitled to be supplied, as soon as practicable, with a copy certified
27
by the Regulator to be a true copy.
28
(3) The certified copy must be received in all courts and tribunals as
29
evidence as if it were the original.
30
Part 10
Information-gathering powers
Section 119
146
Nature Repair Market Bill 2023
No. , 2023
(4) Until a certified copy is supplied, the Regulator must, at such times
1
and places as the Regulator thinks appropriate, permit the person
2
otherwise entitled to possession of the document, or a person
3
authorised by that person, to inspect and make copies of, or take
4
extracts from, the document.
5
Audits
Part 11
Introduction
Division 1
Section 120
No. , 2023
Nature Repair Market Bill 2023
147
Part 11--Audits
1
Division 1--Introduction
2
120 Simplified outline of this Part
3
The Regulator may require audits of one or more aspects of a
4
person's compliance with this Act to be carried out.
5
An audit team leader or a person assisting an audit team leader
6
must not use or disclose protected audit information unless the use
7
or disclosure is:
8
(a) authorised by a provision of this Part; or
9
(b) authorised or required by a law of the Commonwealth or
10
a prescribed law of a State or Territory.
11
An audit team leader or person assisting an audit team leader may
12
use or disclose audit information in certain circumstances.
13
Part 11
Audits
Division 2
Audits
Section 121
148
Nature Repair Market Bill 2023
No. , 2023
Division 2--Audits
1
121 Compliance audits
2
Scope
3
(1) This section applies if:
4
(a) a person is, or has been, the project proponent for a registered
5
biodiversity project; and
6
(b) the Regulator has reasonable grounds to suspect that the
7
person has contravened, is contravening, or is proposing to
8
contravene, this Act.
9
Audit
10
(2) The Regulator may, by written notice given to the person, require
11
the person to:
12
(a) appoint as an audit team leader:
13
(i) a registered greenhouse and energy auditor of the
14
person's choice; or
15
(ii) if the Regulator specifies a registered greenhouse and
16
energy auditor in the notice--that auditor; or
17
(iii) if the Regulator specifies more than one registered
18
greenhouse and energy auditor in the notice--any one
19
of those auditors; and
20
(b) arrange for the audit team leader to carry out an audit on one
21
or more aspects of the person's compliance with this Act; and
22
(c) arrange for the audit team leader to give the person a written
23
report setting out the results of the audit; and
24
(d) give the Regulator a copy of the audit report on or before the
25
day specified in the notice.
26
Note:
For the conduct of an audit under this section, see section 75 of the
27
National Greenhouse and Energy Reporting Act 2007
.
28
(3) The notice must specify:
29
(a) the type of audit to be carried out; and
30
(b) the matters to be covered by the audit; and
31
Audits
Part 11
Audits
Division 2
Section 121
No. , 2023
Nature Repair Market Bill 2023
149
(c) the form of the audit report and the kinds of details it is to
1
contain.
2
(4) A person must provide the audit team leader, and any persons
3
assisting the audit team leader, with all reasonable facilities and
4
assistance necessary for the effective exercise of the audit team
5
leader's duties under this Act.
6
Civil penalty:
60 penalty units.
7
(5) Without limiting subsection (4), providing assistance that is
8
reasonably necessary includes complying with any request under
9
section 123 that relates to the audit.
10
(6) Subsection (4) does not require a person to allow an audit team
11
leader or a person assisting an audit team leader:
12
(a) to enter premises; or
13
(b) to take samples of any thing on premises; or
14
(c) to inspect any thing on premises.
15
(7) If the Regulator gives a person written notice under subsection (2),
16
the person must comply with the requirements of the notice.
17
Civil penalty:
200 penalty units.
18
(8) The maximum civil penalty for each day that a contravention of
19
subsection (7) continues after the day specified for the purposes of
20
paragraph (2)(d) is 5% of the maximum civil penalty that can be
21
imposed in respect of that contravention.
22
Note:
Subsection (7) is a continuing civil penalty provision under section 93
23
of the Regulatory Powers Act.
24
Reimbursement
25
(9) If:
26
(a) the Regulator gives a person a notice under subsection (2);
27
and
28
(b) in complying with that notice, the person arranges for an
29
audit team leader to carry out an audit on one or more aspects
30
of the person's compliance with this Act; and
31
Part 11
Audits
Division 2
Audits
Section 122
150
Nature Repair Market Bill 2023
No. , 2023
(c) the person requests the Regulator to reimburse the person for
1
reasonable costs incurred by the person in relation to the
2
carrying out of the audit;
3
the Regulator may, on behalf of the Commonwealth, reimburse the
4
person for those costs if the Regulator considers it appropriate to
5
do so.
6
Note:
For review of decisions, see Part 20.
7
(10) A request under paragraph (9)(c) must:
8
(a) be in writing; and
9
(b) be in a form approved, in writing, by the Regulator; and
10
(c) be accompanied by such information as is specified in the
11
rules; and
12
(d) be accompanied by such documents (if any) as are specified
13
in the rules.
14
(11) The approved form of request may provide for verification by
15
statutory declaration of statements in requests.
16
(12) In deciding under subsection (9) whether to reimburse a person for
17
reasonable costs incurred by the person in relation to the carrying
18
out of an audit, the Regulator must have regard to:
19
(a) the report prepared by an audit team leader in accordance
20
with the notice; and
21
(b) whether the person would suffer financial hardship if the
22
person were not reimbursed for those costs; and
23
(c) such other matters (if any) as the Regulator considers
24
relevant.
25
122 Other audits
26
Audit
27
(1) If a person is, or has been, the project proponent for a registered
28
biodiversity project, the Regulator may appoint a registered
29
greenhouse and energy auditor as an audit team leader to carry out
30
an audit of the person's compliance with one or more aspects of
31
this Act.
32
Audits
Part 11
Audits
Division 2
Section 123
No. , 2023
Nature Repair Market Bill 2023
151
(2) The Regulator must give written notice to the person of a decision
1
to appoint an audit team leader under subsection (1). The notice
2
must:
3
(a) specify the audit team leader; and
4
(b) specify the period within which the audit is to be undertaken;
5
and
6
(c) specify the type of audit to be carried out; and
7
(d) specify the matters to be covered by the audit; and
8
(e) be given to the person at a reasonable time before the audit is
9
to be undertaken.
10
Note:
For the conduct of an audit under this section, see section 75 of the
11
National Greenhouse and Energy Reporting Act 2007
.
12
(3) The person must provide the audit team leader, and any persons
13
assisting the audit team leader, with all reasonable facilities and
14
assistance necessary for the effective exercise of the audit team
15
leader's duties under this Act.
16
Civil penalty:
60 penalty units.
17
(4) Without limiting subsection (3), providing assistance that is
18
reasonably necessary includes complying with any request under
19
section 123 that relates to the audit.
20
(5) Subsection (3) does not require a person to allow an audit team
21
leader or a person assisting an audit team leader:
22
(a) to enter premises; or
23
(b) to take samples of any thing on premises; or
24
(c) to inspect any thing on premises.
25
123 Information-gathering of audit team leaders and persons
26
assisting audit team leaders
27
(1) For the purpose of carrying out an audit under section 121 or 122,
28
an audit team leader or a person assisting an audit team leader may
29
request a person who the audit team leader or person assisting the
30
audit team leader reasonably believes has information or
31
documents that are relevant to the audit to:
32
(a) provide any such information; or
33
Part 11
Audits
Division 2
Audits
Section 123
152
Nature Repair Market Bill 2023
No. , 2023
(b) produce any such documents.
1
(2) An audit team leader or a person assisting an audit team leader may
2
make copies of, or take extracts from, a document produced under
3
subsection (1).
4
Audits
Part 11
Audit information
Division 3
Section 124
No. , 2023
Nature Repair Market Bill 2023
153
Division 3--Audit information
1
Subdivision A--Information
2
124 Meaning of audit information
3
For the purposes of this Act,
audit information
means information
4
that satisfies the following conditions:
5
(a) the information was obtained by a person in the person's
6
capacity as an audit team leader or a person assisting an audit
7
team leader;
8
(b) the information was obtained in the course of, or for the
9
purposes of:
10
(i) carrying out a biodiversity audit; or
11
(ii) preparing a biodiversity audit report.
12
125 Meaning of protected audit information
13
For the purposes of this Act,
protected audit information
means
14
audit information that is:
15
(a) information the use or disclosure of which could reasonably
16
be expected to substantially prejudice the commercial
17
interests of a person; or
18
(b) information the disclosure of which could reasonably be
19
expected to found an action by a person (other than the
20
Commonwealth) for breach of a duty of confidence; or
21
(c) information the disclosure of which could reasonably be
22
expected to prejudice the prevention, detection or
23
investigation of, or the conduct of proceedings relating to, an
24
offence or a contravention of a civil penalty provision; or
25
(d) information the disclosure of which could reasonably be
26
expected to prejudice the protection of public safety or the
27
environment; or
28
(e) information the disclosure of which could reasonably be
29
expected to endanger the life or safety of an individual or
30
group of individuals.
31
Part 11
Audits
Division 3
Audit information
Section 126
154
Nature Repair Market Bill 2023
No. , 2023
Subdivision B--Secrecy
1
126 Secrecy--protected audit information
2
(1) If:
3
(a) a person is, or has been, an audit team leader or a person
4
assisting an audit team leader; and
5
(b) the person has obtained protected audit information:
6
the person must not:
7
(c) disclose the information to another person; or
8
(d) use the information.
9
Civil penalty:
120 penalty units.
10
Exceptions
11
(2) Each of the following is an exception to the prohibition in
12
subsection (1):
13
(a) the disclosure or use is authorised by a provision of this Part;
14
(b) the disclosure or use is authorised or required by:
15
(i) a law of the Commonwealth; or
16
(ii) a prescribed law of a State or a Territory.
17
Note:
A defendant bears an evidential burden in relation to the matter in this
18
subsection (see section 96 of the Regulatory Powers Act).
19
Subdivision C--Disclosure or use of audit information
20
127 Disclosure or use for purposes of carrying out biodiversity audit
21
or preparing biodiversity audit report etc.
22
An audit team leader or a person assisting an audit team leader may
23
disclose or use audit information if:
24
(a) the disclosure or use is for the purposes of carrying out a
25
biodiversity audit; or
26
(b) the disclosure or use is for the purposes of preparing a
27
biodiversity audit report; or
28
(c) if the information relates to a biodiversity project that is, or is
29
to be, the subject of an application under section 11--the
30
Audits
Part 11
Audit information
Division 3
Section 128
No. , 2023
Nature Repair Market Bill 2023
155
disclosure or use is for the purposes of giving a biodiversity
1
audit report to:
2
(i) if the project is to have one project proponent--the
3
eligible person who is proposed to be the project
4
proponent for the project; or
5
(ii) if the project is to have 2 or more project proponents--
6
any of the eligible persons who are proposed to be the
7
project proponents for the project; or
8
(d) if the information relates to a registered biodiversity
9
project--the disclosure or use is for the purposes of giving a
10
biodiversity audit report to:
11
(i) if one person is registered as the project proponent for
12
the project--that person; or
13
(ii) if there are 2 or more persons registered as the project
14
proponents for the project--any of those persons.
15
128 Disclosure to the Regulator
16
An audit team leader or a person assisting an audit team leader may
17
disclose audit information to the Regulator if:
18
(a) the disclosure is for the purposes of this Act; and
19
(b) the audit team leader or person assisting an audit team leader
20
is satisfied that the disclosure is likely to assist the Regulator
21
in performing functions or exercising powers under this Act.
22
129 Disclosure to Minister etc.
23
An audit team leader or a person assisting an audit team leader may
24
disclose audit information to the Minister.
25
130 Disclosure to the Secretary etc.
26
(1) An audit team leader or a person assisting an audit team leader may
27
disclose audit information to:
28
(a) the Secretary; or
29
(b) an officer of the Department who is authorised by the
30
Secretary, in writing, for the purposes of this section;
31
if:
32
Part 11
Audits
Division 3
Audit information
Section 131
156
Nature Repair Market Bill 2023
No. , 2023
(c) the disclosure is for the purposes of this Act; and
1
(d) the audit team leader or person assisting an audit team leader
2
is satisfied the disclosure is likely to assist in the performance
3
of functions, or the exercise of powers, under this Act.
4
(2) To avoid doubt, an authorisation under paragraph (1)(b) may:
5
(a) authorise a specified officer; or
6
(b) authorise a person who holds, occupies or performs the duties
7
of, a specified office or position.
8
131 Disclosure to reduce serious risk to life or health of individual
9
An audit team leader or a person assisting an audit team leader may
10
disclose audit information if:
11
(a) the audit team leader or person assisting an audit team leader
12
believes on reasonable grounds that the disclosure is
13
necessary to prevent or lessen a serious risk to the life or
14
health of an individual; and
15
(b) the disclosure is for the purposes of preventing or lessening
16
that risk.
17
132 Disclosure to reduce serious risk to the environment
18
An audit team leader or a person assisting an audit team leader may
19
disclose audit information if:
20
(a) the audit team leader or person assisting the audit team leader
21
reasonably believes that the disclosure is necessary to prevent
22
or lessen a serious risk to the environment; and
23
(b) the disclosure is for the purposes of preventing or lessening
24
that risk.
25
133 Disclosure to a court, tribunal etc
26
An audit team leader or a person assisting an audit team leader may
27
disclose audit information:
28
(a) for the purposes of proceedings before:
29
(i) a court; or
30
Audits
Part 11
Audit information
Division 3
Section 134
No. , 2023
Nature Repair Market Bill 2023
157
(ii) a tribunal, authority or person that has the power to
1
require the answering of questions or the production of
2
documents; or
3
(b) in accordance with an order of a court or such a tribunal,
4
authority or person.
5
134 Disclosure of publicly available information
6
An audit team leader or a person assisting an audit team leader may
7
disclose audit information if it has already been lawfully made
8
available to the public.
9
135 Disclosure with consent
10
An audit team leader or a person assisting an audit team leader may
11
disclose audit information that relates to the affairs of a person if:
12
(a) the person has consented to the disclosure; and
13
(b) the disclosure is in accordance with that consent.
14
136 Disclosure to person to whom audit information relates
15
An audit team leader or a person assisting an audit team leader may
16
disclose audit information to a person if the information relates to
17
the affairs of the person.
18
137 Disclosure to person who provided audit information
19
An audit team leader or a person assisting an audit team leader may
20
disclose audit information to a person if the audit team leader or
21
person assisting an audit team leader obtained the information from
22
the person.
23
138 Disclosure of statistics
24
An audit team leader or a person assisting an audit team leader may
25
disclose statistics derived from audit information if those statistics
26
are not likely to enable the identification of a person.
27
Part 12
Deposit of biodiversity certificates with the Regulator
Section 139
158
Nature Repair Market Bill 2023
No. , 2023
Part 12--Deposit of biodiversity certificates with
1
the Regulator
2
3
139 Simplified outline of this Part
4
The Regulator may approve the deposit of a biodiversity certificate
5
with the Regulator.
6
If a biodiversity certificate is deposited with the Regulator, the
7
certificate cannot be transmitted or otherwise dealt with.
8
140 Application to approve the deposit of a biodiversity certificate
9
with the Regulator
10
(1) If a person is the holder of a biodiversity certificate, the person
11
may apply to the Regulator for the Regulator to approve the
12
deposit of the certificate with the Regulator.
13
(2) An application must:
14
(a) be in a form approved, in writing, by the Regulator; and
15
(b) specify the biodiversity certificate; and
16
(c) specify the account number of the person's Register account
17
in which there is an entry for the biodiversity certificate; and
18
(d) contain such other information (if any) required by the
19
approved form.
20
(3) An application must be accompanied by:
21
(a) such documents (if any) as are specified in the rules; and
22
(b) the fee (if any) specified in the rules.
23
(4) A fee specified under paragraph (3)(b) must not be such as to
24
amount to taxation.
25
Deposit of biodiversity certificates with the Regulator
Part 12
Section 141
No. , 2023
Nature Repair Market Bill 2023
159
141 Approval of deposit of a biodiversity certificate with the
1
Regulator
2
Scope
3
(1) This section applies if an application under section 140 has been
4
made for the Regulator to approve the deposit of a biodiversity
5
certificate (the
relevant biodiversity certificate
) with the Regulator.
6
Approval
7
(2) After considering the application, the Regulator must decide to:
8
(a) approve the deposit of the relevant biodiversity certificate
9
with the Regulator; or
10
(b) refuse to approve the deposit of the relevant biodiversity
11
certificate with the Regulator.
12
Note:
For review of decisions, see Part 20.
13
(3) The Regulator must give written notice of a decision under
14
subsection (2) to the applicant.
15
Criteria for approval
16
(4) The Regulator must approve the deposit of the relevant
17
biodiversity certificate with the Regulator unless the Regulator is
18
satisfied that:
19
(a) it would be inappropriate to approve the deposit of the
20
relevant biodiversity certificate with the Regulator; or
21
(b) both:
22
(i) another biodiversity certificate in respect of a registered
23
biodiversity project has previously been relinquished
24
under section 152; and
25
(ii) the relevant biodiversity certificate is in respect of that
26
registered biodiversity project.
27
142 Deposit of a biodiversity certificate with the Regulator
28
(1) If the Regulator approves the deposit of a biodiversity certificate
29
with the Regulator:
30
Part 12
Deposit of biodiversity certificates with the Regulator
Section 142
160
Nature Repair Market Bill 2023
No. , 2023
(a) the Regulator must transfer the certificate, in accordance with
1
rules made for the purposes of section 167, from the Register
2
account in which there is an entry for the certificate to a
3
Commonwealth Register account; and
4
(b) the certificate must not be transferred from the
5
Commonwealth Register account to another Register
6
account; and
7
(c) while an entry for the certificate is in the Commonwealth
8
Register account, the certificate is taken, for the purposes of
9
this Act, to be
deposited with the Regulator
; and
10
(d) subject to section 152 (relinquishment), while an entry for the
11
certificate is in the Commonwealth Register account:
12
(i) the certificate remains in force; and
13
(ii) the person who applied for the approval must be
14
recorded in the Register as the holder of the certificate;
15
and
16
(iii) the certificate cannot be transmitted or otherwise dealt
17
with; and
18
(e) the Regulator must remove the entry for the certificate from
19
the Commonwealth Register account at whichever is the
20
earlier of the following times:
21
(i) when the Regulator is required by section 77
22
(cancellation) to remove the entry;
23
(ii) when the Regulator is required by section 152
24
(relinquishment) to remove the entry.
25
Note:
Section 73 provides that the holder of a biodiversity certificate is the
26
legal owner of the certificate.
27
(2) The Register must set out a record of each transfer under
28
paragraph (1)(a).
29
Relinquishment requirements
Part 13
Introduction
Division 1
Section 143
No. , 2023
Nature Repair Market Bill 2023
161
Part 13--Relinquishment requirements
1
Division 1--Introduction
2
143 Simplified outline of this Part
3
A biodiversity certificate may be required to be relinquished if:
4
(a)
the certificate was issued as a result of false or
5
misleading information; or
6
(b)
there is a significant reversal of a biodiversity outcome;
7
or
8
(c)
circumstances prescribed by the rules exist.
9
A requirement to relinquish a biodiversity certificate may be
10
satisfied by relinquishment of one or more equivalent certificates
11
instead.
12
A civil penalty may apply to a failure to comply with a
13
relinquishment requirement, and a biodiversity maintenance
14
declaration may be made under Part 14.
15
Part 13
Relinquishment requirements
Division 2
Relinquishment notices
Section 144
162
Nature Repair Market Bill 2023
No. , 2023
Division 2--Relinquishment notices
1
144 Relinquishment notice--false or misleading information
2
Scope
3
(1) This section applies to a person if:
4
(a) a biodiversity certificate (the
original biodiversity
certificate
)
5
has been issued to the person in relation to a biodiversity
6
project (whether or not the person still holds the certificate,
7
and whether or not the certificate remains in effect); and
8
(b) information was given by the person to the Regulator in
9
connection with the project; and
10
(c) the information was:
11
(i) contained in an application under this Act; or
12
(ii) given in connection with an application under this Act;
13
or
14
(iii) contained in a biodiversity project report; or
15
(iv) contained in a notification under Division 3 of Part 9;
16
and
17
(d) the information was false or misleading in a material
18
particular; and
19
(e) the issue of the certificate was substantially attributable
20
(whether directly or indirectly) to the false or misleading
21
information; and
22
(f) the permanence period of the project has not ended.
23
Relinquishment notice
24
(2) The Regulator may give a relinquishment notice to the person in
25
relation to the original biodiversity certificate.
26
Note:
For review of decisions, see Part 20.
27
Relinquishment requirements
Part 13
Relinquishment notices
Division 2
Section 146
No. , 2023
Nature Repair Market Bill 2023
163
146 Relinquishment notice--reversal of biodiversity outcome other
1
than due to natural disturbance or conduct etc.
2
Scope
3
(1) This section applies if:
4
(a) a biodiversity certificate (the
original biodiversity
certificate
)
5
has been issued in relation to a biodiversity project (whether
6
or not the certificate remains in effect); and
7
(b) subject to rules made for the purposes of section 148, there
8
has been a significant reversal of the biodiversity outcome to
9
which the project relates; and
10
(c) the reversal is not attributable to:
11
(i) natural disturbance; or
12
(ii) reasonable actions taken to reduce the risk of bushfire;
13
or
14
(iii) conduct engaged in by a person (other than the project
15
proponent for the project), where the conduct is not
16
within the reasonable control of the project proponent;
17
and
18
(d) the permanence period of the project has not ended.
19
Relinquishment notice
20
(2) The Regulator may give a relinquishment notice, in relation to the
21
original biodiversity certificate, to the project proponent.
22
Note 1:
For projects with multiple project proponents, see Part 3 (and in
23
particular sections 40 and 43).
24
Note 2:
For review of decisions, see Part 20.
25
147 Relinquishment notice--reversal of biodiversity outcome due to
26
natural disturbance or conduct and no mitigation
27
happens
28
Scope
29
(1) This section applies if:
30
Part 13
Relinquishment requirements
Division 2
Relinquishment notices
Section 147A
164
Nature Repair Market Bill 2023
No. , 2023
(a) a biodiversity certificate (the
original biodiversity
certificate
)
1
has been issued in relation to a biodiversity project (whether
2
or not the certificate remains in effect); and
3
(b) subject to rules made for the purposes of section 148, there
4
has been a significant reversal of the biodiversity outcome to
5
which the project relates; and
6
(c) the reversal is attributable to:
7
(i) natural disturbance; or
8
(ii) conduct engaged in by a person (other than the project
9
proponent for the project), where the conduct is not
10
within the reasonable control of the project proponent;
11
and
12
(d) the Regulator is not satisfied that the project proponent has,
13
within a reasonable period, taken reasonable steps to mitigate
14
the effect of the natural disturbance or conduct, as the case
15
may be, on the project; and
16
(e) the permanence period of the project has not ended.
17
Relinquishment notice
18
(2) The Regulator may give a relinquishment notice, in relation to the
19
original biodiversity certificate, to the project proponent.
20
Note 1:
For projects with multiple project proponents, see Part 3 (and in
21
particular sections 40 and 43).
22
Note 2:
For review of decisions, see Part 20.
23
147A Relinquishment notice--circumstances prescribed by the rules
24
Scope
25
(1) This section applies if:
26
(a) a biodiversity certificate (the
original biodiversity
certificate
)
27
has been issued in relation to a biodiversity project (whether
28
or not the certificate remains in effect); and
29
(b) circumstances prescribed by the rules exist in relation to the
30
project.
31
Relinquishment requirements
Part 13
Relinquishment notices
Division 2
Section 148
No. , 2023
Nature Repair Market Bill 2023
165
Relinquishment notice
1
(2) The Regulator may give a relinquishment notice, in relation to the
2
original biodiversity certificate, to the project proponent.
3
Note 1:
For projects with multiple project proponents, see Part 3 (and in
4
particular sections 40 and 43).
5
Note 2:
For review of decisions, see Part 20.
6
148 Significant reversals in biodiversity outcomes--relinquishment
7
requirements
8
(1) The rules may prescribe circumstances in which, for the purposes
9
of paragraphs 146(1)(b) and 147(1)(b):
10
(a) there is taken to have been a reversal of the biodiversity
11
outcome to which a registered biodiversity project relates;
12
and
13
(b) the reversal is taken to be significant, or not taken to be
14
significant.
15
(2) This section does not limit section 111 (significant reversals in
16
biodiversity outcomes--notification requirements).
17
149 Form and content of relinquishment notice
18
A relinquishment notice must:
19
(a) be in writing; and
20
(b) include the information prescribed by the rules.
21
Part 13
Relinquishment requirements
Division 3
Complying with a relinquishment notice
Section 150
166
Nature Repair Market Bill 2023
No. , 2023
Division 3--Complying with a relinquishment notice
1
150 Requirement for compliance with relinquishment notice
2
(1) A relinquishment notice given to a person (the
notice recipient
)
3
under this Part must be complied with under section 151 before the
4
end of 6 months after the notice is given.
5
Extension of period to comply
6
(2) The Regulator may extend the period mentioned in subsection (1)
7
by a further period of up to 6 months if the Regulator is satisfied
8
that:
9
(a) not doing so would lead to significant hardship for the notice
10
recipient; or
11
(b) the notice recipient cannot relinquish the original biodiversity
12
certificate under paragraph 151(1)(a), and there are no
13
certificates that could be used to comply with
14
paragraph 151(1)(b) reasonably available for the notice
15
recipient to obtain.
16
Note:
For review of decisions, see Part 20.
17
(3) Only one extension under subsection (2) may be given in respect of
18
any relinquishment notice.
19
(4) The rules may provide for and in relation to:
20
(a) a person applying for the Regulator to grant an extension
21
under subsection (2); and
22
(b) the Regulator considering, and making a decision on, such an
23
application.
24
Civil penalty
25
(5) A person is liable to a civil penalty if:
26
(a) the person is given a relinquishment notice under this Part;
27
and
28
Relinquishment requirements
Part 13
Complying with a relinquishment notice
Division 3
Section 150
No. , 2023
Nature Repair Market Bill 2023
167
(b) the notice is not complied with before the end of the period
1
mentioned in subsection (1) (subject to any extension under
2
subsection (2)).
3
(6) Subsection (5) is a civil penalty provision.
4
(7) Despite subsection 82(5) of the Regulatory Powers Act, the
5
pecuniary penalty in relation to a contravention of subsection (5) of
6
this section (whether the person is a body corporate or otherwise)
7
must not be more than the greater of:
8
(a) 2,000 penalty units; and
9
(b) if the court can determine the market value of the
10
biodiversity certificate in relation to which the
11
relinquishment notice was given--twice that market value.
12
(8) In determining the pecuniary penalty, the court must take into
13
account:
14
(a) the nature and extent of any harm to the environment that has
15
been, might be or will be caused by the conduct or
16
circumstances that resulted in the relinquishment notice
17
being given; and
18
(b) the nature and extent of any harm to the market for
19
biodiversity certificates that has been, might be or will be
20
caused by:
21
(i) the conduct or circumstances that resulted in the
22
relinquishment notice being given; or
23
(ii) the failure to comply with the relinquishment notice.
24
(9) Subsection (8) does not limit subsection 82(6) of the Regulatory
25
Powers Act.
26
(10) To avoid doubt, a person may be liable to pay a pecuniary penalty
27
for a contravention of subsection (5) even if:
28
(a) the person is not the holder of any biodiversity certificates; or
29
(b) the person is not the holder of the biodiversity certificate in
30
relation to which the relinquishment notice was given; or
31
(c) the biodiversity certificate in relation to which the
32
relinquishment notice was given is no longer in effect; or
33
Part 13
Relinquishment requirements
Division 3
Complying with a relinquishment notice
Section 151
168
Nature Repair Market Bill 2023
No. , 2023
(d) the person is not the holder of one or more biodiversity
1
certificates that, if relinquished under section 152 in relation
2
to the relinquishment notice, would result in the
3
relinquishment notice being complied with under
4
paragraph 151(1)(b); or
5
(e) no biodiversity certificates exist that, if relinquished under
6
section 152 in relation to the relinquishment notice, would
7
result in the relinquishment notice being complied with under
8
paragraph 151(1)(b).
9
(11) Section 93 (continuing contraventions) of the Regulatory Powers
10
Act does not apply to subsection (5) of this section.
11
151 Compliance with relinquishment requirement--relinquishing
12
equivalent biodiversity certificate or certificates
13
(1) A relinquishment notice that relates to a biodiversity certificate
14
(the
original biodiversity certificate
) is complied with if:
15
(a) the original biodiversity certificate is relinquished, in relation
16
to the notice, in accordance with section 152; or
17
(b) both of the following apply:
18
(i) one or more other biodiversity certificates (
relinquished
19
certificates
) are relinquished, in relation to the notice, in
20
accordance with section 152;
21
(ii) the relinquished certificate or certificates meet the
22
relinquishment equivalence requirements in relation to
23
the original biodiversity certificate.
24
Note:
The certificate or certificates may be relinquished by the person who
25
was given the relinquishment notice, or by another person.
26
(2) The rules may prescribe the circumstances in which:
27
(a) a biodiversity certificate meets the
relinquishment
28
equivalence requirements
in relation to another biodiversity
29
certificate; or
30
(b) 2 or more biodiversity certificates together meet the
31
relinquishment equivalence requirements
in relation to
32
another biodiversity certificate.
33
Relinquishment requirements
Part 13
Complying with a relinquishment notice
Division 3
Section 152
No. , 2023
Nature Repair Market Bill 2023
169
152 How biodiversity certificates are relinquished
1
(1) If a person is the holder of a biodiversity certificate, the person
2
may, by electronic notice transmitted to the Regulator, relinquish
3
the certificate.
4
(2) A notice under subsection (1) must:
5
(a) specify the biodiversity certificate that is being relinquished;
6
and
7
(b) if the certificate is being relinquished in order to comply with
8
a relinquishment notice given under section 144, 146, 147 or
9
147A--identify the relinquishment notice in relation to
10
which the certificate is being relinquished; and
11
(c) if the certificate is being voluntarily relinquished in order to
12
satisfy a condition for cancellation of the registration of a
13
biodiversity project under section 23 (voluntary cancellation
14
of registration where certificate is in effect)--identify the
15
registered biodiversity project in relation to which the
16
certificate is being relinquished; and
17
(d) if the certificate is being voluntarily relinquished for the
18
purposes of paragraph 158(1)(c) (revocation of a biodiversity
19
maintenance declaration)--identify the biodiversity
20
maintenance declaration in relation to which the certificate is
21
being relinquished; and
22
(e) if there is an entry for the certificate in the person's Register
23
account--specify the account number of that account; and
24
(f) if the certificate is deposited with the Regulator--include a
25
statement to the effect that the certificate is deposited with
26
the Regulator; and
27
(g) include any other information prescribed by the rules.
28
(3) If a person relinquishes a biodiversity certificate under this section,
29
then:
30
(a) in a case where the biodiversity certificate is not deposited
31
with the Regulator:
32
(i) the biodiversity certificate is cancelled; and
33
(ii) the Regulator must remove the entry for the certificate
34
from the person's Register account in which there is an
35
entry for the certificate; or
36
Part 13
Relinquishment requirements
Division 3
Complying with a relinquishment notice
Section 152
170
Nature Repair Market Bill 2023
No. , 2023
(b) in a case where the biodiversity certificate is deposited with
1
the Regulator:
2
(i) the biodiversity certificate is cancelled; and
3
(ii) the Regulator must remove the entry for the certificate
4
from the Commonwealth Register account in which
5
there is an entry for the certificate.
6
Note:
A biodiversity certificate that is cancelled under subsection (3) may
7
have originally been issued for a biodiversity project that remains a
8
registered biodiversity project (this may occur, for example, if the
9
cancelled certificate was relinquished in accordance with
10
paragraph 151(1)(b) to comply with a relinquishment notice issued for
11
a different project).
12
In such a case, the cancellation of the certificate does not affect the
13
registration of the biodiversity project to which the certificate relates,
14
and the obligations of the project proponent in relation to that project
15
may continue to apply.
16
(4) To avoid doubt, the relinquishment of a particular biodiversity
17
certificate is effective for only one purpose mentioned in
18
paragraph (2)(b), (c) or (d).
19
(5) The Register must set out a record of each notice under
20
subsection (1).
21
Biodiversity maintenance declarations
Part 14
Introduction
Division 1
Section 153
No. , 2023
Nature Repair Market Bill 2023
171
Part 14--Biodiversity maintenance declarations
1
Division 1--Introduction
2
153 Simplified outline of this Part
3
If a relinquishment requirement under Part 13 that relates to a
4
biodiversity project is not complied with, the Regulator may
5
declare a biodiversity maintenance area.
6
The declaration may prohibit specified activities in the area. A civil
7
penalty may apply to a person who contravenes a prohibition in a
8
biodiversity maintenance declaration.
9
Part 14
Biodiversity maintenance declarations
Division 2
Biodiversity maintenance declarations
Section 154
172
Nature Repair Market Bill 2023
No. , 2023
Division 2--Biodiversity maintenance declarations
1
154 Biodiversity maintenance declaration
2
Declaration
3
(1) The Regulator may, by writing, declare that a specified area is a
4
biodiversity maintenance
area
if:
5
(a) the biodiversity maintenance area is, or has been, the project
6
area, or part of the project area, of a biodiversity project (the
7
maintained project
); and
8
(b) the maintained project is, or has been, a registered
9
biodiversity project; and
10
(c) a biodiversity certificate (the
original biodiversity
certificate
)
11
has been issued in relation to the maintained biodiversity
12
project (whether or not the certificate remains in effect); and
13
(d) any of the following apply:
14
(i) a relinquishment notice has been given in relation to the
15
original biodiversity certificate, and the notice was not
16
complied with in accordance with section 150;
17
(ii) a relinquishment notice has been given in relation to the
18
original biodiversity certificate, and the Regulator is
19
satisfied that it is likely that the notice will not be
20
complied with in accordance with section 150;
21
(iii) the Regulator is satisfied that a relinquishment notice is
22
likely to be given in relation to the original biodiversity
23
certificate, and that it is likely that the notice, if given,
24
would not be complied with in accordance with
25
section 150;
26
(iv) the Regulator is satisfied that it would be appropriate to
27
give a relinquishment notice in relation to the original
28
biodiversity certificate, but the notice cannot be given
29
because the person to whom the Regulator would give
30
the notice cannot be located or no longer exists, or for
31
some other reason.
32
Note:
For review of decisions, see Part 20.
33
Biodiversity maintenance declarations
Part 14
Biodiversity maintenance declarations
Division 2
Section 154
No. , 2023
Nature Repair Market Bill 2023
173
(2) A declaration under subsection (1) is a
biodiversity maintenance
1
declaration
.
2
(3) The biodiversity maintenance area specified in a biodiversity
3
maintenance declaration may consist of:
4
(a) a single area; or
5
(b) multiple areas, which need not be contiguous.
6
Declared prohibited activities
7
(4) A biodiversity maintenance declaration may specify one or more
8
activities that are
declared
prohibited activities
in relation to the
9
biodiversity maintenance area.
10
(5) Without limiting subsection (4), an activity may be specified under
11
that subsection by reference to:
12
(a) the area or areas (which must be, or fall within, the
13
biodiversity maintenance area) on or in which the activity
14
must not be carried out; or
15
(b) a manner or manners in which the activity must not be
16
carried out; or
17
(c) the time or times at which the activity must not be carried
18
out; or
19
(d) the period or periods during which the activity must not be
20
carried out; or
21
(e) the person or persons who must not carry out the activity.
22
Notice of declaration
23
(6) If the Regulator makes a biodiversity maintenance declaration
24
under subsection (1), the Regulator must take all reasonable steps
25
to ensure that notice of the making of the declaration is given to:
26
(a) the project proponent for the maintained project; and
27
(b) if a biodiversity certificate relating to the maintained project
28
is held by a person other than the project proponent for the
29
maintained project--the holder of the certificate; and
30
(c) if there is a relevant land registration official in relation to the
31
maintained project--the relevant land registration official;
32
and
33
Part 14
Biodiversity maintenance declarations
Division 2
Biodiversity maintenance declarations
Section 155
174
Nature Repair Market Bill 2023
No. , 2023
(d) if:
1
(i) the biodiversity maintenance area is or includes a native
2
title area; and
3
(ii) there is a registered native title body corporate for the
4
native title area; and
5
(iii) the registered native title body corporate is not the
6
project proponent for the maintained project;
7
the registered native title body corporate; and
8
(e) any other person specified in the rules.
9
Biodiversity maintenance declaration to be published
10
(7) If the Regulator makes a biodiversity maintenance declaration
11
under subsection (1), the Regulator must publish the biodiversity
12
maintenance declaration on the Regulator's website as soon as
13
practicable after the declaration is made.
14
Biodiversity maintenance declaration is not a legislative
15
instrument
16
(8) A biodiversity maintenance declaration is not a legislative
17
instrument.
18
155 Civil penalty for carrying out declared prohibited activity
19
A person must not carry out an activity in a biodiversity
20
maintenance area if the activity is a declared prohibited activity in
21
relation to the biodiversity maintenance area.
22
Civil penalty:
2,000 penalty units.
23
156 When a biodiversity maintenance declaration ceases to be in
24
force
25
Unless sooner revoked, a biodiversity maintenance declaration
26
ceases to be in force at the earlier of the following times:
27
(a) the end of the permanence period for the maintained project;
28
(b) if a civil penalty order is made under Part 4 of the Regulatory
29
Powers Act, as that Part applies in relation to
30
Biodiversity maintenance declarations
Part 14
Biodiversity maintenance declarations
Division 2
Section 157
No. , 2023
Nature Repair Market Bill 2023
175
subsection 150(5) of this Act, that relates to a relinquishment
1
notice given in respect of the biodiversity certificate issued in
2
respect of the maintained project--the time the penalty is
3
paid in full to the Commonwealth.
4
157 Variation or revocation of biodiversity maintenance declaration
5
Scope
6
(1) This section applies if a biodiversity maintenance declaration is in
7
force in relation to an area or areas.
8
Variation or revocation
9
(2) The Regulator may, by writing, vary or revoke the declaration.
10
(3) The Regulator may do so:
11
(a) on the Regulator's own initiative; or
12
(b) on application made to the Regulator by a person.
13
Note:
For review of decisions, see Part 20.
14
(4) The Regulator must not vary or revoke the declaration unless the
15
Regulator is satisfied that it is appropriate to do so, having regard
16
to:
17
(a) the reasons for making the declaration; and
18
(b) such other matters (if any) as the Regulator considers
19
relevant.
20
Application
21
(5) An application under paragraph (3)(b) must:
22
(a) be in writing; and
23
(b) be in a form approved, in writing, by the Regulator; and
24
(c) be accompanied by the fee (if any) specified in the rules.
25
(6) A fee specified under paragraph (5)(c) must not be such as to
26
amount to taxation.
27
Part 14
Biodiversity maintenance declarations
Division 2
Biodiversity maintenance declarations
Section 157
176
Nature Repair Market Bill 2023
No. , 2023
Notification of variation or revocation
1
(7) If the Regulator varies or revokes the declaration, the Regulator
2
must take all reasonable steps to ensure that notice of the variation
3
or revocation is given to:
4
(a) the project proponent for the maintained project; and
5
(b) if a biodiversity certificate relating to the maintained project
6
is held by a person other than the project proponent for the
7
maintained project--the holder of the certificate; and
8
(c) if there is a relevant land registration official in relation to the
9
maintained project--the relevant land registration official;
10
and
11
(d) if:
12
(i) the biodiversity maintenance area is or includes a native
13
title area; and
14
(ii) there is a registered native title body corporate for the
15
native title area; and
16
(iii) the registered native title body corporate is not the
17
project proponent for the maintained project;
18
the registered native title body corporate; and
19
(e) any other person specified in the rules.
20
Variation or revocation to be published
21
(8) If the Regulator varies or revokes the declaration, the Regulator
22
must publish the instrument of variation or revocation on the
23
Regulator's website as soon as practicable after the instrument is
24
made.
25
Refusal
26
(9) If the Regulator decides to refuse to vary or revoke the declaration
27
on an application under paragraph (3)(b), the Regulator must give
28
written notice of the decision to the applicant.
29
Variation or revocation is not a legislative instrument
30
(10) An instrument under subsection (2) is not a legislative instrument.
31
Biodiversity maintenance declarations
Part 14
Biodiversity maintenance declarations
Division 2
Section 158
No. , 2023
Nature Repair Market Bill 2023
177
158 Revocation of biodiversity maintenance declaration--voluntary
1
relinquishment of biodiversity certificate
2
Scope
3
(1) This section applies if:
4
(a) a biodiversity maintenance declaration is in force; and
5
(b) a person applies to the Regulator for the revocation of the
6
biodiversity maintenance declaration; and
7
(c) before the application was made, the applicant or another
8
person voluntarily relinquished, in accordance with
9
section 152 and in relation to the biodiversity maintenance
10
declaration:
11
(i) the biodiversity certificate for the maintained project; or
12
(ii) one or more other biodiversity certificates that meet the
13
relinquishment equivalence requirements in relation to
14
the biodiversity certificate for the maintained project.
15
Note:
For when one or more biodiversity certificates meet the
16
relinquishment equivalence requirements
in relation to another
17
biodiversity certificate, see rules made for the purposes of
18
subsection 151(2).
19
Revocation
20
(2) The Regulator must, by writing, revoke the declaration.
21
Note:
For review of decisions, see Part 20.
22
Application
23
(3) An application under paragraph (1)(b) must:
24
(a) be in writing; and
25
(b) be in a form approved, in writing, by the Regulator.
26
Notification of revocation
27
(4) If the Regulator revokes the declaration, the Regulator must take
28
all reasonable steps to ensure that notice of the revocation is given
29
to:
30
(a) the project proponent for the maintained project; and
31
Part 14
Biodiversity maintenance declarations
Division 2
Biodiversity maintenance declarations
Section 158
178
Nature Repair Market Bill 2023
No. , 2023
(b) if a biodiversity certificate relating to the maintained project
1
is held by a person other than the project proponent for the
2
maintained project--the holder of the certificate; and
3
(c) if there is a relevant land registration official in relation to the
4
maintained project--the relevant land registration official;
5
and
6
(d) if:
7
(i) the biodiversity maintenance area is or includes a native
8
title area; and
9
(ii) there is a registered native title body corporate for the
10
native title area; and
11
(iii) the registered native title body corporate is not the
12
project proponent for the maintained project;
13
the registered native title body corporate; and
14
(e) any other person specified in the rules.
15
Revocation to be published
16
(5) If the Regulator revokes the declaration, the Regulator must
17
publish the instrument of revocation on the Regulator's website as
18
soon as practicable after the instrument is made.
19
Refusal
20
(6) If the Regulator decides to refuse to revoke the declaration, the
21
Regulator must give written notice of the decision to the applicant.
22
Revocation is not a legislative instrument
23
(7) An instrument under subsection (2) is not a legislative instrument.
24
Registers
Part 15
Introduction
Division 1
Section 160
No. , 2023
Nature Repair Market Bill 2023
179
Part 15--Registers
1
Division 1--Introduction
2
160 Simplified outline of this Part
3
The Biodiversity Market Register holds entries for each registered
4
biodiversity project and each biodiversity certificate. The
5
Regulator must keep the Register in accordance with the rules.
6
The rules may also provide for an online platform, to facilitate
7
trading in biodiversity certificates and for other purposes.
8
Part 15
Registers
Division 2
Biodiversity Market Register
Section 161
180
Nature Repair Market Bill 2023
No. , 2023
Division 2--Biodiversity Market Register
1
161 Biodiversity Market Register
2
(1) The Regulator must keep a register, to be known as the
3
Biodiversity Market Register.
4
Note:
In this Act, the Biodiversity Market Register is known as the Register
5
(see the definition of
Register
in section 7).
6
(2) The Register is to be maintained by electronic means.
7
(3) The Register is to be made available for inspection on the
8
Regulator's website.
9
(4) The Regulator must ensure that the Register is up to date.
10
162 Entries in the Register--registered biodiversity projects and
11
former registered biodiversity projects
12
(1) The Register must set out, for each registered biodiversity project:
13
(a) the name of the project; and
14
(b) a description, in accordance with the rules, of the project area
15
for the project; and
16
(c) a description of the project, including such details (if any) as
17
are prescribed by the rules; and
18
(d) the project proponent or project proponents for the project;
19
and
20
(e) the methodology determination that covers the project; and
21
(f) whether the registration of the project is subject to a
22
condition under section 17 (conditions about obtaining
23
regulatory approvals); and
24
(g) whether the registration of the project is subject to a
25
condition under section 18 (conditions about obtaining
26
consent from eligible interest holders); and
27
(h) whether the registration of the project is subject to a
28
condition under section 18A (condition about obtaining
29
consent from registered native title body corporate); and
30
(i) if:
31
Registers
Part 15
Biodiversity Market Register
Division 2
Section 162
No. , 2023
Nature Repair Market Bill 2023
181
(i) the project proponent has requested the Regulator that
1
the Register contain particular information about the
2
extent to which the project area, or any part of the
3
project area, is also an area on or in which a registered
4
project under a related scheme has been, is being, or is
5
to be, carried out; and
6
(ii) the request has not been withdrawn; and
7
(iii) the Regulator is satisfied that the requested information
8
meets the requirements specified in the rules;
9
the requested information; and
10
(j) if a project plan is required by the methodology
11
determination that covers the project--such information (if
12
any) about the project plan as is prescribed by the rules; and
13
(k) such other information (if any) as is provided for under
14
paragraph 45(1)(c) by the methodology determination that
15
covers the project; and
16
(l) such other information (if any) as the Regulator considers
17
appropriate; and
18
(m) such other information (if any) as is prescribed by the rules.
19
Note:
For projects with multiple project proponents, see Part 3.
20
(2) Subsection (1) has effect subject to sections 163 and 163A.
21
Note:
Sections 163 and 163A deal with requests for information not to be set
22
out in the Register.
23
(3) A request under subparagraph (1)(i)(i) must:
24
(a) be in a form approved, in writing, by the Regulator; and
25
(b) be accompanied by such documents (if any) as are specified
26
in the rules.
27
(4) If:
28
(a) the Register contains information covered by
29
paragraph (1)(i); and
30
(b) the Regulator becomes aware that the information has ceased
31
to be correct;
32
the Regulator may remove the information from the Register.
33
Part 15
Registers
Division 2
Biodiversity Market Register
Section 163
182
Nature Repair Market Bill 2023
No. , 2023
Former registered biodiversity projects
1
(5) The rules may provide for the Register to set out prescribed
2
information for biodiversity projects that have been, but have
3
ceased to be, registered biodiversity projects (including such
4
projects that are no longer being carried on).
5
163 Requests for information about project area not to be set out in
6
the Register
7
(1) The Register must not set out a description of the project area, or a
8
part of the project area, for a registered biodiversity project if:
9
(a) either:
10
(i) the project proponent for the project; or
11
(ii) another person;
12
has requested the Regulator not to set out the description of
13
the project area, or the part of the project area, as the case
14
may be, in the Register; and
15
(b) the Regulator is satisfied that:
16
(i) setting out a description of the project area, or the part
17
of the project area, as the case may be, could reasonably
18
be expected to substantially prejudice a matter referred
19
to in subsection (2); and
20
(ii) the prejudice outweighs the public interest in the setting
21
out of the description of the project area, or the part of
22
the project area, as the case may be.
23
Note:
For review of decisions, see Part 20.
24
(2) For the purposes of subparagraph (1)(b)(i), the matters are the
25
following:
26
(a) the biodiversity of the project area, or the part of the project
27
area, as the case may be;
28
(b) the safety of any person.
29
(3) The Register must not set out a description of the project area, or a
30
part of the project area, for a registered biodiversity project if:
31
(a) either:
32
(i) the project proponent for the project; or
33
Registers
Part 15
Biodiversity Market Register
Division 2
Section 163
No. , 2023
Nature Repair Market Bill 2023
183
(ii) another person;
1
has requested the Regulator not to set out a description of the
2
project area, or the part of the project area, as the case may
3
be, in the Register; and
4
(b) the Regulator is satisfied that:
5
(i) there is a local community of Aboriginal persons, or
6
Torres Strait Islanders, who have a connection to the
7
project area, or the part of the project area, as the case
8
may be; and
9
(ii) setting out the description of the project area, or the part
10
of the project area, as the case may be, could reasonably
11
be expected to have a material adverse impact on that
12
community; and
13
(iii) the adverse impact outweighs the public interest in the
14
setting out of the description of the project area, or the
15
part of the project area, as the case may be.
16
Note:
For review of decisions, see Part 20.
17
(4) A request under subsection (1) or (3) must:
18
(a) be in writing; and
19
(b) be in a form approved, in writing, by the Regulator.
20
(5) In considering whether to comply with a request under
21
subsection (1) or (3), the Regulator may consult such persons,
22
bodies and communities as the Regulator considers appropriate.
23
(6) The Regulator must take all reasonable steps to ensure that a
24
decision is made on the request within 30 days after the request
25
was made.
26
(7) If:
27
(a) the Regulator decides to comply with the request; and
28
(b) the person who made the request is a person other than the
29
project proponent;
30
the Regulator must give written notice of the decision to the project
31
proponent.
32
(8) If the Regulator decides to refuse the request, the Regulator must
33
give written notice of the decision to:
34
Part 15
Registers
Division 2
Biodiversity Market Register
Section 163A
184
Nature Repair Market Bill 2023
No. , 2023
(a) the project proponent; and
1
(b) if the person who made the request is a person other than the
2
project proponent--the person who made the request.
3
163A Requests for information about a project not to be set out in
4
the Register
5
(1) The Register must not set out information about a registered
6
biodiversity project if:
7
(a) either:
8
(i) the project proponent for the project; or
9
(ii) another person;
10
has requested the Regulator not to set out the information in
11
the Register; and
12
(b) the Regulator is satisfied that:
13
(i) setting out the information could reasonably be
14
expected to substantially prejudice a matter referred to
15
in subsection (2); and
16
(ii) the prejudice outweighs the public interest in the setting
17
out of the information; and
18
(c) the information:
19
(i) is not a description of the project area, or a part of the
20
project area, for the project; and
21
(ii) is of a kind specified in the rules.
22
Note:
For review of decisions, see Part 20.
23
(2) For the purposes of subparagraph (1)(b)(i), the matters are the
24
following:
25
(a) the biodiversity of the project area, or a part of the project
26
area, for the project;
27
(b) the safety of any person.
28
(3) The Register must not set out information about a registered
29
biodiversity project if:
30
(a) either:
31
(i) the project proponent for the project; or
32
(ii) another person;
33
Registers
Part 15
Biodiversity Market Register
Division 2
Section 163A
No. , 2023
Nature Repair Market Bill 2023
185
has requested the Regulator not to set out the information in
1
the Register; and
2
(b) the Regulator is satisfied that:
3
(i) there is a local community of Aboriginal persons, or
4
Torres Strait Islanders, who have a connection to the
5
project area, or the part of the project area, as the case
6
may be; and
7
(ii) setting out the information could reasonably be
8
expected to have a material adverse impact on that
9
community; and
10
(iii) the adverse impact outweighs the public interest in the
11
setting out of the information; and
12
(c) the information does not consist of a description of the
13
project area, or a part of the project area, for the project.
14
Note:
For review of decisions, see Part 20.
15
(4) A request under subsection (1) or (3) must:
16
(a) be in writing; and
17
(b) be in a form approved, in writing, by the Regulator.
18
(5) In considering whether to comply with a request under
19
subsection (1) or (3), the Regulator may consult such persons,
20
bodies and communities as the Regulator considers appropriate.
21
(6) The Regulator must take all reasonable steps to ensure that a
22
decision is made on the request within 30 days after the request
23
was made.
24
(7) If:
25
(a) the Regulator decides to comply with the request; and
26
(b) the person who made the request is a person other than the
27
project proponent;
28
the Regulator must give written notice of the decision to the project
29
proponent.
30
(8) If the Regulator decides to refuse the request, the Regulator must
31
give written notice of the decision to:
32
(a) the project proponent; and
33
Part 15
Registers
Division 2
Biodiversity Market Register
Section 164
186
Nature Repair Market Bill 2023
No. , 2023
(b) if the person who made the request is a person other than the
1
project proponent--the person who made the request.
2
164 Entries in the Register--biodiversity certificates
3
(1) The Register must set out, for each biodiversity certificate that is in
4
effect:
5
(a) the biodiversity project to which the certificate relates; and
6
(b) the date of issue of the certificate; and
7
(c) the holder of the certificate; and
8
(d) such other information (if any) as is provided for under
9
paragraph 45(1)(g) by the methodology determination that
10
covers the project; and
11
(e) such other information (if any) as is prescribed by the rules.
12
(2) The Register must set out, for each biodiversity certificate that has
13
been in effect, but has ceased to be in effect:
14
(a) the biodiversity project to which the certificate related; and
15
(b) the date of issue of the certificate; and
16
(c) the date on which the certificate ceased to be in effect; and
17
(d) such other information (if any) as is provided for under
18
paragraph 45(1)(g) by the methodology determination that
19
covers the project; and
20
(e) such other information (if any) as is prescribed by the rules.
21
165 Entries in the Register--accounts for holding biodiversity
22
certificates
23
The rules may make provision for and in relation to empowering
24
the Regulator to open accounts in the Register to hold biodiversity
25
certificates.
26
166 Suspension of operation of the Register
27
(1) The Regulator may temporarily suspend the operation of the
28
Register if the Regulator is satisfied that:
29
(a) the suspension is required so that maintenance can be carried
30
out; or
31
Registers
Part 15
Biodiversity Market Register
Division 2
Section 167
No. , 2023
Nature Repair Market Bill 2023
187
(b) it is prudent to suspend the operation of the Register in order
1
to:
2
(i) ensure the integrity of the Register; or
3
(ii) prevent, mitigate or minimise abuse of the Register; or
4
(iii) prevent, mitigate or minimise criminal activity
5
involving the Register.
6
(2) If the Regulator suspends the operation of the Register, the
7
Regulator must publish a notice on the Regulator's website
8
informing the public of the suspension.
9
(3) If the Regulator suspends the operation of the Register, the
10
Regulator may defer taking action in relation to the Register until
11
the suspension ends.
12
167 Rules may make provision in relation to the Register
13
(1) The rules may make provision for and in relation to the Register.
14
(2) Without limiting subsection (1), the rules may make provision for
15
or in relation to any of the following:
16
(a) matters that are to be recorded in the Register;
17
(b) the manner in which information may be communicated to or
18
by the Regulator in relation to the Register;
19
(c) requests to open, close, transfer or otherwise deal with
20
accounts in the Register (including forms for making
21
requests, information that must accompany a request and the
22
consideration of a request by the Regulator);
23
(d) identification procedures that the Regulator may or must
24
carry out in relation to a record in the Register;
25
(e) joint accounts;
26
(f) accounts to be kept for the Commonwealth;
27
(g) unilateral closure of accounts by the Regulator;
28
(h) the holding of biodiversity certificates in accounts in the
29
Register, and the transfer of certificates between accounts;
30
(i) requiring the holders of accounts to notify the Regulator of
31
specified events;
32
(j) correction or rectification of the Register;
33
Part 15
Registers
Division 2
Biodiversity Market Register
Section 168
188
Nature Repair Market Bill 2023
No. , 2023
(k) verification by statutory declaration of information provided
1
to the Regulator in relation to the Register;
2
(l) fees for things done by the Regulator in relation to the
3
Register.
4
(3) A fee provided for by rules made for the purposes of this section
5
must not be such as to amount to taxation.
6
(4) A person must not contravene rules made for the purposes of
7
paragraph (2)(i).
8
Civil penalty:
200 penalty units.
9
168 Use and disclosure of information obtained from the Register
10
Use
11
(1) The rules may provide that a person must not use information to
12
contact or send material to another person if that information:
13
(a) is about the other person; and
14
(b) was obtained from the Register.
15
Disclosure
16
(2) The rules may provide that a person (the
first person
) must not
17
disclose information that:
18
(a) is about another person; and
19
(b) was obtained from the Register; and
20
(c) the first person knows is likely to be used to contact or send
21
material to the other person.
22
(3) A person must not contravene rules made for the purposes of
23
subsection (1) or (2).
24
Civil penalty:
200 penalty units.
25
Exception
26
(4) Subsection (3) does not apply in circumstances specified by the
27
rules.
28
Registers
Part 15
Biodiversity Market Register
Division 2
Section 168
No. , 2023
Nature Repair Market Bill 2023
189
Note:
A person who wishes to rely on subsection (4) in proceedings for a
1
civil penalty order bears an evidential burden in relation to the matter
2
in that subsection: see section 96 of the Regulatory Powers Act.
3
Part 15
Registers
Division 3
Online platform
Section 169
190
Nature Repair Market Bill 2023
No. , 2023
Division 3--Online platform
1
169 Online Platform
2
(1) The rules may make provision for and in relation to empowering
3
the Regulator to maintain an online platform for any of the
4
following purposes:
5
(a) facilitating the trading of any of the following:
6
(i) biodiversity certificates;
7
(ii) other certificates, units or credits (however described,
8
and whether issued under a law of the Commonwealth,
9
a State or a Territory, or in some other way) that relate
10
to biodiversity projects;
11
(b) facilitating arrangements between project proponents, or
12
prospective project proponents, of registered biodiversity
13
projects and prospective purchasers of biodiversity
14
certificates;
15
(c) facilitating arrangements relating to biodiversity projects that
16
are not, and are not intended to be, registered under this Act;
17
(d) any other purpose incidental or related to any of the above.
18
(2) The rules must not require a person to use the online platform in
19
order to:
20
(a) be the project proponent of a registered biodiversity project;
21
or
22
(b) be issued with, hold or deal with a biodiversity certificate; or
23
(c) otherwise receive the benefit of any other provision of this
24
Act.
25
Publication of information
Part 16
Introduction
Division 1
Section 170
No. , 2023
Nature Repair Market Bill 2023
191
Part 16--Publication of information
1
Division 1--Introduction
2
170 Simplified outline of this Part
3
This Part allows or requires the Regulator and the Secretary to
4
publish certain information about biodiversity certificates,
5
registered biodiversity projects and the operation of this Act.
6
Part 16
Publication of information
Division 2
Information about biodiversity certificates
Section 171
192
Nature Repair Market Bill 2023
No. , 2023
Division 2--Information about biodiversity certificates
1
171 Information about biodiversity certificates
2
(1) As soon as practicable after a biodiversity certificate is issued to a
3
person, the Regulator must publish on the Regulator's website:
4
(a) the name of the person; and
5
(b) such other information relating to the certificate as is
6
prescribed by the rules.
7
(2) As soon as practicable after a variation of a biodiversity certificate
8
is made, the Regulator must publish on the Regulator's website:
9
(a) the name of the holder of the certificate; and
10
(b) such other information relating to the certificate or the
11
variation as is prescribed by the rules.
12
(3) As soon as practicable after a biodiversity certificate is transferred
13
from one Register account to another Register account, the
14
Regulator must publish on the Regulator's website:
15
(a) the name of the holder of each of those accounts; and
16
(b) such other information relating to the certificate or the
17
transfer as is prescribed by the rules.
18
172 Reports about activities of Regulator
19
(1) As soon as practicable after the end of a financial year, the
20
Regulator must publish on the Regulator's website a report about
21
the activities of the Regulator under this Act during the financial
22
year.
23
(2) The report must deal with any matters prescribed by the rules.
24
173 Publication of concise description of the characteristics of
25
biodiversity certificates
26
The Regulator must:
27
Publication of information
Part 16
Information about biodiversity certificates
Division 2
Section 173
No. , 2023
Nature Repair Market Bill 2023
193
(a) publish on the Regulator's website a statement setting out a
1
concise description of the characteristics of biodiversity
2
certificates; and
3
(b) keep that statement up to date.
4
Part 16
Publication of information
Division 3
Information about biodiversity certificates purchased by the Commonwealth
Section 174
194
Nature Repair Market Bill 2023
No. , 2023
Division 3--Information about biodiversity certificates
1
purchased by the Commonwealth
2
174 Information about biodiversity conservation purchasing
3
processes
4
After the Secretary conducts a biodiversity conservation
5
purchasing process, the Secretary may publish on the Department's
6
website the following information:
7
(a) when the process was conducted;
8
(b) the total amount that the Commonwealth agreed to pay by
9
way of purchasing biodiversity certificates through the
10
process (whether or not those payments have been made);
11
(c) such other summary information (if any) relating to the
12
process as the Secretary considers appropriate;
13
(d) such other statistics (if any) relating to the process as the
14
Secretary considers appropriate.
15
175 Annual reports about purchases of biodiversity certificates
16
The Secretary may publish on the Department's website a report,
17
in relation to a financial year, on the following matters:
18
(a) the total number of biodiversity certificates that the
19
Commonwealth has purchased, or has agreed to purchase,
20
under biodiversity conservation contracts entered into during
21
the financial year;
22
(b) the total amount that the Commonwealth will be liable to
23
pay, or has paid, under biodiversity conservation contracts
24
entered into during the financial year;
25
(c) the total number of biodiversity certificates that were
26
transferred to the Commonwealth during the financial year as
27
a result of biodiversity conservation contracts (including such
28
contracts entered into before the financial year);
29
(d) the total amount that the Commonwealth paid during the
30
financial year under biodiversity conservation contracts
31
(including such contracts entered into before the financial
32
year);
33
Publication of information
Part 16
Information about biodiversity certificates purchased by the Commonwealth
Division 3
Section 175
No. , 2023
Nature Repair Market Bill 2023
195
(e) for each biodiversity certificate transferred to the
1
Commonwealth during the financial year as a result of a
2
biodiversity conservation contract (including such a contract
3
entered into before the financial year)--sufficient
4
information to identify the registered biodiversity project in
5
relation to which the certificate was issued;
6
(f) such other summary information (if any) relating to the
7
purchase of biodiversity certificates by the Commonwealth
8
under biodiversity conservation contracts as the Secretary
9
considers appropriate;
10
(g) such other statistics (if any) relating to the purchase of
11
biodiversity certificates by the Commonwealth under
12
biodiversity conservation contracts as the Secretary considers
13
appropriate.
14
Part 16
Publication of information
Division 4
Information about relinquishment requirements
Section 176
196
Nature Repair Market Bill 2023
No. , 2023
Division 4--Information about relinquishment
1
requirements
2
176 Information about relinquishment requirements
3
Scope
4
(1) This section applies if the Regulator gives a person a
5
relinquishment notice under Part 13.
6
Relinquishment requirement
7
(2) As soon as practicable after giving the relinquishment notice, the
8
Regulator must publish on the Regulator's website:
9
(a) the name of the person; and
10
(b) details of the relinquishment requirement.
11
(3) If any of the following paragraphs applies:
12
(a) the decision to require the person to relinquish one or more
13
biodiversity certificates is being reconsidered by the
14
Regulator under section 215;
15
(b) the decision to require the person to relinquish one or more
16
biodiversity certificates has been affirmed or varied by the
17
Regulator under section 215, and the decision as so affirmed
18
or varied is the subject of an application for review by the
19
Administrative Appeals Tribunal;
20
(c) the decision to require the person to relinquish one or more
21
biodiversity certificates is the subject of an application for
22
review by the Administrative Appeals Tribunal;
23
the Regulator must:
24
(d) publish an appropriate annotation on the Regulator's website;
25
and
26
(e) if paragraph (a) applies--when the Regulator notifies the
27
applicant for reconsideration of the Regulator's decision on
28
the reconsideration, the Regulator must publish an
29
appropriate annotation on the Regulator's website; and
30
Publication of information
Part 16
Information about relinquishment requirements
Division 4
Section 177
No. , 2023
Nature Repair Market Bill 2023
197
(f) if paragraph (b) or (c) applies--when the review by the
1
Administrative Appeals Tribunal (including any court
2
proceedings arising out of the review) has been finalised, the
3
Regulator must publish an appropriate annotation on the
4
Regulator's website.
5
177 Information about relinquished certificates
6
Scope
7
(1) This section applies if:
8
(a) the Regulator gives a person a relinquishment notice; and
9
(b) one or more biodiversity certificates are relinquished under
10
section 152 in order to comply with the relinquishment
11
notice.
12
Biodiversity certificates relinquished
13
(2) As soon as practicable after receiving the notice under section 152
14
relinquishing the biodiversity certificate or certificates, the
15
Regulator must publish on the Regulator's website:
16
(a) the name of the person; and
17
(b) such information in relation to the biodiversity certificate or
18
certificates as the Regulator thinks appropriate.
19
Part 17
Record-keeping and project monitoring requirements
Division 1
Introduction
Section 178
198
Nature Repair Market Bill 2023
No. , 2023
Part 17--Record-keeping and project monitoring
1
requirements
2
Division 1--Introduction
3
178 Simplified outline of this Part
4
The rules may require a person to:
5
(a)
make a record of information; and
6
(b)
retain the record.
7
A person is subject to record-keeping requirements in relation to
8
the preparation of a biodiversity project report.
9
A project proponent must comply with record-keeping and project
10
monitoring requirements imposed by a methodology
11
determination.
12
Record-keeping and project monitoring requirements
Part 17
Record-keeping requirements
Division 2
Section 179
No. , 2023
Nature Repair Market Bill 2023
199
Division 2--Record-keeping requirements
1
179 Record-keeping requirements--general
2
(1) The rules may require a person to:
3
(a) make a record of specified information, where the
4
information is relevant to this Act; and
5
(b) retain:
6
(i) the record; or
7
(ii) a copy of the record;
8
for 7 years after the making of the record.
9
(2) If a person is subject to a requirement under rules made for the
10
purposes of subsection (1), the person must comply with that
11
requirement.
12
Civil penalty:
200 penalty units.
13
Other provisions do not limit this section
14
(3) This section is not limited by any other provision of this Act that
15
relates to the keeping or retention of records.
16
180 Record-keeping requirements--preparation of biodiversity
17
project report
18
Scope
19
(1) This section applies if a person:
20
(a) made a record of particular information; and
21
(b) used the information to prepare a biodiversity project report.
22
Record-keeping requirements
23
(2) The rules may require the person to retain:
24
(a) the record; or
25
(b) a copy of the record;
26
Part 17
Record-keeping and project monitoring requirements
Division 2
Record-keeping requirements
Section 181
200
Nature Repair Market Bill 2023
No. , 2023
for 7 years after the biodiversity project report was given to the
1
Regulator.
2
(3) If a person is subject to a requirement under rules made for the
3
purposes of subsection (2), the person must comply with that
4
requirement.
5
Civil penalty:
200 penalty units.
6
181 Record-keeping requirements--methodology determinations
7
Scope
8
(1) This section applies to a person if:
9
(a) the person is the project proponent for a registered
10
biodiversity project; and
11
(b) under the methodology determination that covers the project,
12
the person is subject to a record-keeping requirement relating
13
to the project.
14
Record-keeping requirement
15
(2) The person must comply with the requirement.
16
Civil penalty:
200 penalty units.
17
Record-keeping and project monitoring requirements
Part 17
Project monitoring requirements
Division 3
Section 182
No. , 2023
Nature Repair Market Bill 2023
201
Division 3--Project monitoring requirements
1
182 Project monitoring requirements--methodology determinations
2
Scope
3
(1) This section applies to a person if:
4
(a) the person is the project proponent for a registered
5
biodiversity project; and
6
(b) under the methodology determination that covers the project,
7
the person is subject to a requirement to monitor the project.
8
Project monitoring requirement
9
(2) The person must comply with the requirement.
10
Civil penalty:
200 penalty units.
11
Part 18
Enforcement
Division 1
Introduction
Section 183
202
Nature Repair Market Bill 2023
No. , 2023
Part 18--Enforcement
1
Division 1--Introduction
2
183 Simplified outline of this Part
3
Certain provisions are subject to monitoring under Part 2 of the
4
Regulatory Powers Act.
5
Certain provisions are subject to investigation under Part 3 of the
6
Regulatory Powers Act.
7
Civil penalty orders may be sought under Part 4 of the Regulatory
8
Powers Act from a relevant court in relation to contraventions of
9
civil penalty provisions.
10
Infringement notices may be given under Part 5 of the Regulatory
11
Powers Act for alleged contraventions of civil penalty provisions.
12
Undertakings to comply with certain provisions may be accepted
13
and enforced under Part 6 of the Regulatory Powers Act.
14
Injunctions under Part 7 of the Regulatory Powers Act may be used
15
to restrain a person from contravening section 155 of this Act (civil
16
penalty for carrying out declared prohibited activity) or to compel
17
compliance with that section.
18
184 Appointment of inspectors
19
(1) The Chair of the Regulator may, in writing, appoint a person who
20
is one of the following as an inspector
for the purposes of this Act:
21
(a) a person who is:
22
(i) a member of the staff of the Regulator; and
23
(ii) an SES employee or acting SES employee;
24
(b) a person who is:
25
(i) a member of the staff of the Regulator; and
26
Enforcement
Part 18
Introduction
Division 1
Section 184
No. , 2023
Nature Repair Market Bill 2023
203
(ii) an APS employee who holds or performs the duties of
1
an Executive Level 1 or 2 position or an equivalent
2
position;
3
(c) a member or special member of the Australian Federal
4
Police.
5
Note:
The expressions
APS employee
,
SES employee
and
acting SES
6
employee
are defined in section 2B of the
Acts Interpretation Act
7
1901
.
8
(2) The Chair must not appoint a person as an inspector unless the
9
Chair is satisfied that the person has the knowledge or experience
10
necessary to properly exercise the powers of an
inspector.
11
(3) An inspector must, in exercising powers as such, comply with any
12
directions of the Chair.
13
(4) If a direction is given under subsection (3) in writing, the direction
14
is not a legislative instrument.
15
Part 18
Enforcement
Division 2
Monitoring powers
Section 185
204
Nature Repair Market Bill 2023
No. , 2023
Division 2--Monitoring powers
1
185 Monitoring powers
2
Provisions subject to monitoring
3
(1) The following provisions are subject to monitoring under Part 2 of
4
the Regulatory Powers Act:
5
(a) each provision of this Act;
6
(b) an offence provision of the
Crimes Act 1914
or the
Criminal
7
Code
, to the extent
that it relates to one or more of the
8
provisions mentioned in paragraph (a).
9
Note:
Part 2 of the Regulatory Powers Act creates a framework for
10
monitoring whether the provisions mentioned in this subsection have
11
been complied with. It includes powers of entry and inspection.
12
Information subject to monitoring
13
(2) Information given in compliance or purported compliance with a
14
provision of this Act is subject to monitoring under Part 2 of the
15
Regulatory Powers Act.
16
Note:
Part 2 of the Regulatory Powers Act creates a framework for
17
monitoring whether the information is correct. It includes powers of
18
entry and inspection.
19
Related provisions, authorised applicant, authorised person,
20
issuing officer, relevant chief executive and relevant court
21
(3) For the purposes of Part 2 of the Regulatory Powers Act, as that
22
Part applies in relation to the provisions mentioned in
23
subsection (1) and the information mentioned in subsection (2):
24
(a) there are no related provisions; and
25
(b) an inspector is an authorised applicant; and
26
(c) an inspector is an authorised person; and
27
(d) a magistrate is an issuing officer; and
28
(e) the Chair of the Regulator is the relevant chief executive; and
29
(f) each of the following is a relevant court:
30
(i) the Federal Court;
31
Enforcement
Part 18
Monitoring powers
Division 2
Section 186
No. , 2023
Nature Repair Market Bill 2023
205
(ii) a court of a State or Territory that has jurisdiction in
1
relation to matters arising under this Act.
2
(4) The relevant chief executive may, in writing, delegate the powers
3
and functions mentioned in subsection (5) to a person who is:
4
(a) a member of the staff of the Regulator; and
5
(b) an SES employee or acting SES employee.
6
Note:
The expressions
SES employee
and
acting SES employee
are defined
7
in section 2B of the
Acts Interpretation Act 1901
.
8
(5) The powers and functions that may be delegated are:
9
(a)
powers and functions under Part 2 of the Regulatory Powers
10
Act in relation to the provisions mentioned in subsection (1)
11
and the information mentioned in subsection (2); and
12
(b) powers and functions under the Regulatory Powers Act that
13
are incidental to a power or function mentioned in
14
paragraph (a).
15
(6) A person exercising powers or performing functions under a
16
delegation under subsection (4) must comply with any directions of
17
the relevant chief executive.
18
Person assisting
19
(7) An authorised person may be assisted by other persons in
20
exercising powers or performing functions or duties under Part 2 of
21
the Regulatory Powers Act in relation to the provisions mentioned
22
in subsection (1) and the information mentioned in subsection (2).
23
Extension to external Territories
24
(8) Part 2 of the Regulatory Powers Act, as that Part applies in relation
25
to
the provisions mentioned in subsection (1) and the information
26
mentioned in subsection (2), extends to every external Territory
.
27
186 Modifications of Part 2 of the Regulatory Powers Act
28
Additional monitoring power
29
(1) For the purposes of determining:
30
Part 18
Enforcement
Division 2
Monitoring powers
Section 186
206
Nature Repair Market Bill 2023
No. , 2023
(a) whether a provision mentioned in subsection 185(1) has
1
been, or is being, complied with; or
2
(b) the correctness of information mentioned in
3
subsection 185(2);
4
the additional powers mentioned in subsection (2) of this section
5
are taken to be included in the monitoring powers under Part 2 of
6
the Regulatory Powers Act.
7
(2) The additional monitoring powers are:
8
(a) the power to take samples of any thing on premises entered
9
under Part 2 of the Regulatory Powers Act; and
10
(b) the power to remove, test and analyse such samples; and
11
(c) the power to secure premises entered under Part 2 of the
12
Regulatory Powers Act; and
13
(d) the power to secure things on premises entered under Part 2
14
of the Regulatory Powers Act for the purpose of sampling,
15
testing or analysing those things; and
16
(e) the power to secure a container on premises entered under
17
Part 2 of the Regulatory Powers Act that contains a thing if
18
the inspector reasonably believes that it is not reasonably
19
practicable to secure the thing without also securing the
20
container (whether or not the container contains any other
21
thing).
22
Use of force in executing a monitoring warrant
23
(3) In executing a monitoring warrant under Part 2 of the Regulatory
24
Powers Act, as that Part applies in relation to the provisions
25
mentioned in subsection 185(1) and the information mentioned in
26
subsection 185(2) of this Act:
27
(a) an authorised person may use such force against things as is
28
necessary and reasonable in the circumstances; and
29
(b) a person assisting the authorised person may use such force
30
against things as is necessary and reasonable in the
31
circumstances.
32
Enforcement
Part 18
Monitoring powers
Division 2
Section 186
No. , 2023
Nature Repair Market Bill 2023
207
Identity cards
1
(4) A reference to an identity card in sections 25 and 26 and
2
subsection 35(6) of the Regulatory Powers Act, as those provisions
3
apply in relation to the provisions mentioned in subsection 185(1)
4
of this Act and information mentioned in subsection 185(2) of this
5
Act, is taken to include a reference to written evidence identifying
6
the authorised person as a member or special member of the
7
Australian Federal Police.
8
(5) Subsection 35(1) of the Regulatory Powers Act, as that subsection
9
applies in relation to the provisions mentioned in subsection 185(1)
10
of this Act and information mentioned in subsection 185(2) of this
11
Act, does not require the relevant chief executive to issue an
12
identity card to an authorised person who is a member or special
13
member of the Australian Federal Police.
14
Part 18
Enforcement
Division 3
Investigation powers
Section 187
208
Nature Repair Market Bill 2023
No. , 2023
Division 3--Investigation powers
1
187 Investigation powers
2
Provisions subject to investigation
3
(1) A provision is subject to investigation under Part 3 of the
4
Regulatory Powers Act if it is:
5
(a) a civil penalty provision of this Act; or
6
(b) an offence provision of the
Crimes Act 1914
or the
Criminal
7
Code
, to the extent
that it relates to this Act.
8
Note:
Part 3 of the Regulatory Powers Act creates a framework for
9
investigating whether a provision has been contravened. It includes
10
powers of entry, search and seizure.
11
Related provisions, authorised applicant, authorised person,
12
issuing officer, relevant chief executive and relevant court
13
(2) For the purposes of Part 3 of the Regulatory Powers Act, as that
14
Part applies in relation to evidential material that relates to a
15
provision mentioned in subsection (1):
16
(a) there are no related provisions; and
17
(b) an inspector is an authorised
applicant; and
18
(c) an inspector is an authorised person; and
19
(d) a magistrate is an issuing officer; and
20
(e) the Chair of the Regulator is the relevant chief executive; and
21
(f) each of the following is a relevant court:
22
(i) the Federal Court;
23
(ii) a court of a State or Territory that has jurisdiction in
24
relation to matters arising under this Act.
25
(3) The relevant chief executive may, in writing, delegate the powers
26
and functions mentioned in subsection (4) to a person who is:
27
(a) a member of the staff of the Regulator; and
28
(b) an SES employee or acting SES employee.
29
Note:
The expressions
SES employee
and
acting SES employee
are defined
30
in section 2B of the
Acts Interpretation Act 1901
.
31
Enforcement
Part 18
Investigation powers
Division 3
Section 188
No. , 2023
Nature Repair Market Bill 2023
209
(4) The powers and functions that may be delegated are:
1
(a) powers and functions under Part 3 of the Regulatory Powers
2
Act in relation to evidential material that relates to a
3
provision mentioned in subsection (1); and
4
(b) powers and functions under the Regulatory Powers Act that
5
are incidental to a power or function mentioned in
6
paragraph (a).
7
(5) A person exercising powers or performing functions under a
8
delegation under subsection (3) must comply with any directions of
9
the relevant chief executive.
10
Person assisting
11
(6) An authorised person may be assisted by other persons in
12
exercising powers or performing functions or duties under Part 3 of
13
the Regulatory Powers Act in relation to evidential material that
14
relates to a provision mentioned in subsection (1).
15
Extension to external Territories
16
(7) Part 3 of the Regulatory Powers Act, as that Part applies in relation
17
to a provision
mentioned in subsection (1), extends to every
18
external Territory.
19
188 Modifications of Part 3 of the Regulatory Powers Act
20
Additional investigative powers
21
(1) The additional powers mentioned in subsection (2) are taken to be
22
included in the investigation powers under Part 3 of the Regulatory
23
Powers Act, as that Part applies in relation to evidential material
24
that relates to a provision mentioned in subsection 187(1) of this
25
Act.
26
(2) The additional investigation powers are:
27
(a) the power to take samples of any thing on premises entered
28
under Part 3 of the Regulatory Powers Act; and
29
(b) the power to remove, test and analyse such samples; and
30
Part 18
Enforcement
Division 3
Investigation powers
Section 188
210
Nature Repair Market Bill 2023
No. , 2023
(c) the power to secure premises entered under Part 3 of the
1
Regulatory Powers Act; and
2
(d) the power to secure things on premises entered under Part 3
3
of the Regulatory Powers Act for the purpose of sampling,
4
testing or analysing those things; and
5
(e) the power to secure a container on premises entered under
6
Part 3 of the Regulatory Powers Act that contains a thing if
7
the inspector reasonably believes that it is not reasonably
8
practicable to secure the thing without also securing the
9
container (whether or not the container contains any other
10
thing).
11
Operating electronic equipment etc. that may contain evidential
12
material
13
(3) Subsection 50(1) of the Regulatory Powers Act is taken to include
14
the power (subject to subsections 50(3) and (4) of that Act) to:
15
(a) operate electronic equipment on premises entered under
16
Part 3 of that Act, as that Part applies to evidential material
17
that relates to a provision mentioned in subsection 187(1) of
18
this Act; and
19
(b) use a disk, tape or other storage device that:
20
(i) is on those premises; and
21
(ii) can be used with the equipment or is associated with it;
22
to find out whether the equipment, disk, tape or other storage
23
device contains such evidential material.
24
Use of force in executing an investigation warrant
25
(4) In executing an investigation warrant under Part 3 of the
26
Regulatory Powers Act, as that Part applies in relation to evidential
27
material that relates to a provision mentioned in subsection 187(1)
28
of this Act:
29
(a) an authorised person may use such force against things as is
30
necessary and reasonable in the circumstances; and
31
(b) a person assisting the authorised person may use such force
32
against things as is necessary and reasonable in the
33
circumstances.
34
Enforcement
Part 18
Investigation powers
Division 3
Section 188
No. , 2023
Nature Repair Market Bill 2023
211
Identity cards
1
(5) A reference to an identity card in sections 55 and 56 and
2
subsection 76(6) of the Regulatory Powers Act, as those provisions
3
apply in relation to evidential material that relates to a provision
4
mentioned in subsection 187(1) of this Act, is taken to include a
5
reference to written evidence identifying the authorised person as a
6
member or special member of the Australian Federal Police.
7
(6) Subsection 76(1) of the Regulatory Powers Act, as that subsection
8
applies in relation to evidential material that relates to a provision
9
mentioned in subsection 187(1) of this Act, does not require the
10
relevant chief executive to issue an identity card to an authorised
11
person who is a member or special member of the Australian
12
Federal Police.
13
Part 18
Enforcement
Division 4
Civil penalty provisions
Section 189
212
Nature Repair Market Bill 2023
No. , 2023
Division 4--Civil penalty provisions
1
189 Civil penalty provisions
2
Enforceable
civil penalty provisions
3
(1) Each civil penalty provision of this Act is enforceable under Part 4
4
of the Regulatory Powers Act.
5
Note:
Part 4 of the Regulatory Powers Act allows a civil penalty provision to
6
be enforced by obtaining an order for a person to pay a pecuniary
7
penalty for the contravention of the provision.
8
Authorised applicant
9
(2) For the purposes of Part 4 of the Regulatory Powers Act, the Chair
10
of the Regulator is an authorised applicant in relation to the civil
11
penalty provisions of this Act.
12
(3) An authorised applicant may, in writing, delegate the authorised
13
applicant's powers and functions under Part 4 of the Regulatory
14
Powers Act in relation to the civil penalty provisions of this Act to
15
a person who is:
16
(a) a member of the staff of the Regulator; and
17
(b) an SES employee or acting SES employee.
18
Note:
The expressions
SES employee
and
acting SES employee
are defined
19
in section 2B of the
Acts Interpretation Act 1901
.
20
(4) In performing functions, or exercising powers, under a delegation
21
made by an authorised applicant under subsection (3), the delegate
22
must comply with any directions of the authorised applicant.
23
Relevant court
24
(5) For the purposes of Part 4 of the Regulatory Powers Act, each of
25
the following courts is a relevant court in relation to the civil
26
penalty provisions of this Act:
27
(a) the Federal Court;
28
(b) a court of a State or Territory that has jurisdiction in relation
29
to matters arising under this Act.
30
Enforcement
Part 18
Civil penalty provisions
Division 4
Section 189
No. , 2023
Nature Repair Market Bill 2023
213
Extension to external Territories
1
(6) Part 4 of the Regulatory Powers Act, as that Part applies in relation
2
to the civil penalty provisions
of this Act, extends to every external
3
Territory.
4
Liability of Crown
5
(7) Part 4 of the Regulatory Powers Act, as that Part applies in relation
6
to the civil penalty provisions of this Act, does not make the
7
Crown liable to a pecuniary penalty.
8
Part 18
Enforcement
Division 5
Infringement notices
Section 190
214
Nature Repair Market Bill 2023
No. , 2023
Division 5--Infringement notices
1
190 Infringement notices
2
Provisions subject to an infringement notice
3
(1) A civil penalty provision of this Act (other than a provision
4
specified in subsection (2)) is subject to an infringement notice
5
under Part 5 of the Regulatory Powers Act.
6
Note:
Part 5 of the Regulatory Powers Act creates a framework for using
7
infringement notices in relation to provisions.
8
(2) The following provisions are specified:
9
(a) subsection 46(1);
10
(b) subsection 46(2);
11
(c) subsection 113(1);
12
(d) subsection 113(3);
13
(e) subsection 116(4);
14
(f) subsection 121(4);
15
(g) subsection 121(7);
16
(h) subsection 122(3);
17
(i) subsection 150(5);
18
(j) section 155;
19
(k) subsection 168(3).
20
Infringement officer
21
(3) For the purposes of Part 5 of the Regulatory Powers Act, each of
22
the following persons is an infringement officer in relation to the
23
provisions covered by subsection (1):
24
(a) an inspector;
25
(b) a person who is:
26
(i) a member of the staff of the Regulator; and
27
(ii) an SES employee or acting SES employee.
28
Note:
The expressions
SES employee
and
acting SES employee
are defined
29
in section 2B of the
Acts Interpretation Act 1901
.
30
Enforcement
Part 18
Infringement notices
Division 5
Section 190
No. , 2023
Nature Repair Market Bill 2023
215
Relevant chief executive
1
(4) For the purposes of Part 5 of the Regulatory Powers Act, the Chair
2
of the Regulator is the relevant chief executive in relation to the
3
provisions covered by subsection (1).
4
(5) The relevant chief executive may, in writing, delegate the relevant
5
chief executive's powers and functions under Part 5 of the
6
Regulatory Powers Act in relation to the provisions covered by
7
subsection (1) to a person who is:
8
(a) a member of the staff of the Regulator; and
9
(b) an SES employee or acting SES employee.
10
Note:
The expressions
SES employee
and
acting SES employee
are defined
11
in section 2B of the
Acts Interpretation Act 1901
.
12
(6) A person exercising powers or performing functions under a
13
delegation under subsection (5) must comply with any directions of
14
the relevant chief executive.
15
Extension to external Territories
16
(7) Part 5 of the Regulatory Powers Act, as that Part applies in relation
17
to
the provisions covered by subsection (1), extends to every
18
external Territory.
19
Part 18
Enforcement
Division 6
Enforceable undertakings
Section 191
216
Nature Repair Market Bill 2023
No. , 2023
Division 6--Enforceable undertakings
1
191 Enforceable undertakings
2
Enforceable provisions
3
(1) The following provisions are enforceable
under Part 6 of the
4
Regulatory Powers Act:
5
(a) each provision of this Act;
6
(b) an offence provision of the
Crimes Act 1914
or the
Criminal
7
Code
, to the extent
that it relates to one or more of the
8
provisions mentioned in paragraph (a).
9
Note:
Part 6 of the Regulatory Powers Act creates a framework for
10
accepting and enforcing undertakings relating to compliance with
11
provisions.
12
Authorised person
13
(2) For the purposes of Part 6 of the Regulatory Powers Act, the Chair
14
of the Regulator is an authorised person in relation to the
15
provisions mentioned in subsection (1).
16
(3) An authorised person may, in writing, delegate the authorised
17
person's powers and functions under Part 6 of the Regulatory
18
Powers Act in relation to the provisions mentioned in
19
subsection (1) to a person who is:
20
(a) a member of the staff of the Regulator; and
21
(b) an SES employee or acting SES employee.
22
Note:
The expressions
SES employee
and
acting SES employee
are defined
23
in section 2B of the
Acts Interpretation Act 1901
.
24
(4) In performing functions, or exercising powers, under a delegation
25
made by an authorised person under subsection (3), the delegate
26
must comply with any directions of the authorised person.
27
Enforcement
Part 18
Enforceable undertakings
Division 6
Section 191
No. , 2023
Nature Repair Market Bill 2023
217
Relevant court
1
(5) For the purposes of Part 6 of the Regulatory Powers Act, each of
2
the following courts is a relevant court in relation to the provisions
3
mentioned in subsection (1):
4
(a) the Federal Court;
5
(b) a court of a State or Territory that has jurisdiction in relation
6
to matters arising under this Act.
7
Enforceable undertaking may be published on the Regulator's
8
website
9
(6) The Regulator may cause an undertaking given under Part 6 of the
10
Regulatory Powers Act in relation to a provision mentioned in
11
subsection (1) to be published on the Regulator's website.
12
Extension to external Territories
13
(7) Part 6 of the Regulatory Powers Act, as that Part applies in relation
14
to
the provisions mentioned in subsection (1), extends to every
15
external Territory.
16
Part 18
Enforcement
Division 7
Injunctions
Section 192
218
Nature Repair Market Bill 2023
No. , 2023
Division 7--Injunctions
1
192 Injunctions
2
Enforceable provisions
3
(1) Each provision of this Act is enforceable
under Part 7 of the
4
Regulatory Powers Act.
5
Note:
Part 7 of the Regulatory Powers Act creates a framework for using
6
injunctions to enforce provisions.
7
Authorised person
8
(2) For the purposes of Part 7 of the Regulatory Powers Act, the Chair
9
of the Regulator is an authorised person in relation to the
10
provisions mentioned in subsection (1).
11
(3) An authorised person may, in writing, delegate the authorised
12
person's powers and functions under Part 7 of the Regulatory
13
Powers Act in relation to the provisions mentioned in
14
subsection (1) to a person who is:
15
(a) a member of the staff of the Regulator; and
16
(b) an SES employee or acting SES employee.
17
Note:
The expressions
SES employee
and
acting SES employee
are defined
18
in section 2B of the
Acts Interpretation Act 1901
.
19
(4) In performing functions, or exercising powers, under a delegation
20
made by an authorised person under subsection (3), the delegate
21
must comply with any directions of the authorised person.
22
Relevant court
23
(5) For the purposes of Part 7 of the Regulatory Powers Act, each of
24
the following courts is a relevant court in relation to the provisions
25
mentioned in subsection (1):
26
(a) the Federal Court;
27
(b) a court of a State or Territory that has jurisdiction in relation
28
to matters arising under this Act.
29
Enforcement
Part 18
Injunctions
Division 7
Section 192
No. , 2023
Nature Repair Market Bill 2023
219
Extension to external Territories
1
(6) Part 7 of the Regulatory Powers Act, as that Part applies in relation
2
to the provision mentioned in subsection (1), extends to every
3
external Territory.
4
Part 19
Nature Repair Market Committee
Division 1
Introduction
Section 193
220
Nature Repair Market Bill 2023
No. , 2023
Part 19--Nature Repair Market Committee
1
Division 1--Introduction
2
193 Simplified outline of this Part
3
This Part establishes the Nature Repair Market Committee.
4
This Part also sets out the following:
5
(a)
the functions of the Committee;
6
(b)
the membership of the Committee;
7
(c)
the appointment of Committee members;
8
(d)
other terms and conditions on which Committee
9
members hold office.
10
The Regulator and the Department may assist the Nature Repair
11
Market Committee in the performance of its functions.
12
Nature Repair Market Committee
Part 19
Establishment and functions of the Nature Repair Market Committee
Division 2
Section 194
No. , 2023
Nature Repair Market Bill 2023
221
Division 2--Establishment and functions of the Nature
1
Repair Market Committee
2
194 Nature Repair Market Committee
3
The Nature Repair Market Committee is established by this
4
section.
5
195 Functions of the Nature Repair Market Committee
6
The Nature Repair Market Committee has the following functions:
7
(a) the functions that are conferred on it by this Act;
8
(b) to advise the Minister about matters that:
9
(i) relate to biodiversity projects; and
10
(ii) are referred to the Committee by the Minister;
11
(c) to advise the Minister about the suspension of the
12
consideration by the Regulator of applications for the
13
registration of biodiversity projects (see section 16);
14
(d) to monitor the compliance of methodology determinations
15
with the biodiversity integrity standards;
16
(e) to advise the Minister about the development or prioritisation
17
of methodology determinations;
18
(f) to advise the Secretary about the development or
19
prioritisation of methodology determinations;
20
(g) to undertake public consultation in relation to advice to be
21
given to the Minister or the Secretary about the development
22
or prioritisation of methodology determinations;
23
(h) to undertake periodic reviews of methodology
24
determinations;
25
(i) to undertake public consultation in relation to reviews of
26
methodology determinations;
27
(j) to advise the Minister in relation to the outcomes of reviews
28
of methodology determinations and any related public
29
consultation;
30
Part 19
Nature Repair Market Committee
Division 2
Establishment and functions of the Nature Repair Market Committee
Section 195A
222
Nature Repair Market Bill 2023
No. , 2023
(k) to advise the Secretary in relation to the outcomes of reviews
1
of methodology determinations and any related public
2
consultation;
3
(l) to advise the Minister about the development or prioritisation
4
of biodiversity assessment instruments;
5
(m) to advise the Secretary about the development or
6
prioritisation of biodiversity assessment instruments;
7
(n) to undertake public consultation in relation to advice to be
8
given to the Minister or the Secretary about the development
9
or prioritisation of biodiversity assessment instruments;
10
(o) to undertake periodic reviews of biodiversity assessment
11
instruments;
12
(p) to undertake public consultation in relation to reviews of
13
biodiversity assessment instruments;
14
(q) to advise the Minister in relation to the outcomes of reviews
15
of biodiversity assessment instruments and any related public
16
consultation;
17
(r) to advise the Secretary in relation to the outcomes of reviews
18
of biodiversity assessment instruments and any related public
19
consultation;
20
(s) to do anything incidental to or conducive to the performance
21
of the above functions.
22
195A Request for review of methodology determinations
23
(1) A person may, by written notice given to the Nature Repair Market
24
Committee, request the Committee to review one or more
25
methodology determinations under paragraph 195(h).
26
(2) A request under subsection (1) must be accompanied by a
27
statement that sets out:
28
(a) the reasons why the methodology determinations should be
29
reviewed; and
30
(b) if there are any inconsistencies between the methodology
31
determinations and the biodiversity integrity standards--an
32
explanation of those inconsistencies.
33
Nature Repair Market Committee
Part 19
Establishment and functions of the Nature Repair Market Committee
Division 2
Section 196
No. , 2023
Nature Repair Market Bill 2023
223
(3) If the Nature Repair Market Committee receives a request under
1
subsection (1), the Committee must consider whether to undertake
2
a review in response to the request.
3
196 Nature Repair Market Committee may obtain advice
4
(1) The Nature Repair Market Committee may obtain advice from
5
persons or bodies with relevant experience or knowledge if the
6
advice is relevant to the performance of the functions of the Nature
7
Repair Market Committee.
8
(2) Subsection (1) does not limit paragraph 195(s).
9
196A Nature Repair Market Committee must publish outcomes of
10
reviews
11
If the Nature Repair Market Committee conducts a review under
12
paragraph 195(h) or (o), the Nature Repair Market Committee must
13
publish the outcome of the review on the Department's website.
14
Part 19
Nature Repair Market Committee
Division 3
Membership of the Nature Repair Market Committee
Section 197
224
Nature Repair Market Bill 2023
No. , 2023
Division 3--Membership of the Nature Repair Market
1
Committee
2
197 Membership of the Nature Repair Market Committee
3
The Nature Repair Market Committee consists of the following
4
members:
5
(a) a Chair;
6
(b) at least 4, and not more than 5, other members.
7
198 Appointment of Nature Repair Market Committee members
8
(1) Each Nature Repair Market Committee member is to be appointed
9
by the Minister by written instrument.
10
Note:
A Nature Repair Market Committee member may be reappointed: see
11
section 33AA of the
Acts Interpretation Act 1901
.
12
(2) A person is not eligible for appointment as a Nature Repair Market
13
Committee member unless the Minister is satisfied that the person
14
has:
15
(a) substantial experience or knowledge; and
16
(b) significant standing;
17
in at least one of the following fields of expertise:
18
(c) agriculture relevant to the functions of the Committee;
19
(d) biological or ecological science relevant to the functions of
20
the Committee;
21
(e) economics relevant to the functions of the Committee;
22
(f) environmental markets relevant to the functions of the
23
Committee;
24
(g) Indigenous knowledge relevant to the functions of the
25
Committee;
26
(h) land management relevant to the functions of the Committee.
27
(3) The Minister must ensure that at all times at least one Nature
28
Repair Market Committee member has:
29
(a) substantial experience or knowledge; and
30
(b) significant standing;
31
Nature Repair Market Committee
Part 19
Membership of the Nature Repair Market Committee
Division 3
Section 199
No. , 2023
Nature Repair Market Bill 2023
225
in biological or ecological science relevant to the functions of the
1
Committee.
2
(4) The Minister must ensure that at all times at least one Nature
3
Repair Market Committee member has:
4
(a) substantial experience or knowledge; and
5
(b) significant standing;
6
in Indigenous knowledge relevant to the functions of the
7
Committee.
8
(5) The Minister must ensure that the Chair of the Nature Repair
9
Market Committee is not:
10
(a) an employee of the Commonwealth; or
11
(b) an employee of an authority of the Commonwealth; or
12
(c) a person who holds a full-time office under a law of the
13
Commonwealth.
14
(6) A Nature Repair Market Committee member holds office on a
15
part-time basis.
16
199 Period for appointment for Nature Repair Market Committee
17
members
18
(1) The Chair of the Nature Repair Market Committee holds office for
19
the period specified in the instrument of appointment. The period
20
must not exceed 5 years.
21
Note:
The Chair of the Nature Repair Market Committee may be
22
reappointed: see section 33AA of the
Acts Interpretation Act 1901
.
23
(2) A Nature Repair Market Committee member (other than the Chair)
24
holds office for the period specified in the instrument of
25
appointment. The period must not exceed 3 years.
26
Note:
A Nature Repair Market Committee member may be reappointed: see
27
section 33AA of the
Acts Interpretation Act 1901
.
28
Part 19
Nature Repair Market Committee
Division 3
Membership of the Nature Repair Market Committee
Section 200
226
Nature Repair Market Bill 2023
No. , 2023
200 Acting Nature Repair Market Committee members
1
Acting Chair of the Nature Repair Market Committee
2
(1) The Minister may, by written instrument, appoint a Nature Repair
3
Market Committee member to act as the Chair of the Nature Repair
4
Market Committee:
5
(a) during a vacancy in the office of the Chair of the Nature
6
Repair Market Committee (whether or not an appointment
7
has previously been made to the office); or
8
(b) during any period, or during all periods, when the Chair of
9
the Nature Repair Market Committee:
10
(i) is absent from duty or from Australia; or
11
(ii) is, for any reason, unable to perform the duties of the
12
office.
13
Note:
For rules that apply to acting appointments, see sections 33AB and
14
33A of the
Acts Interpretation Act 1901
.
15
Acting Nature Repair Market Committee member (other than the
16
Chair)
17
(2) The Minister may, by written instrument, appoint a person to act as
18
a Nature Repair Market Committee member (other than the Chair
19
of the Nature Repair Market Committee):
20
(a) during a vacancy in the office of a Nature Repair Market
21
Committee member (other than the Chair of the Committee),
22
whether or not an appointment has previously been made to
23
the office; or
24
(b) during any period, or during all periods, when a Nature
25
Repair Market Committee member (other than the Chair of
26
the Committee):
27
(i) is absent from duty or from Australia; or
28
(ii) is, for any reason, unable to perform the duties of the
29
office.
30
Note:
For rules that apply to acting appointments, see sections 33AB and
31
33A of the
Acts Interpretation Act 1901
.
32
Nature Repair Market Committee
Part 19
Membership of the Nature Repair Market Committee
Division 3
Section 201
No. , 2023
Nature Repair Market Bill 2023
227
Eligibility
1
(3) A person is not eligible for appointment to act as:
2
(a) the Chair of the Nature Repair Market Committee; or
3
(b) a Nature Repair Market Committee member (other than the
4
Chair of the Committee);
5
unless the person is eligible for appointment as a Nature Repair
6
Market Committee member.
7
Note 1:
For eligibility for appointment as a Nature Repair Market Committee
8
member, see subsection 198(2).
9
Note 2:
For rules that apply to acting appointments, see sections 33AB and
10
33A of the
Acts Interpretation Act 1901
.
11
201 Procedures
12
(1) The rules may prescribe the procedures to be followed at or in
13
relation to meetings of the Nature Repair Market Committee,
14
including matters relating to the following:
15
(a) the convening of meetings of the Committee;
16
(b) the number of Nature Repair Market Committee members
17
who are to constitute a quorum;
18
(c) the selection of a Nature Repair Market Committee member
19
to preside at meetings of the Committee in the absence of the
20
Chair of the Committee;
21
(d) the manner in which questions arising at a meeting of the
22
Committee are to be decided.
23
(2) A resolution is taken to have been passed at a meeting of the
24
Nature Repair Market Committee if:
25
(a) without meeting, a majority of Nature Repair Market
26
Committee members indicate agreement with the resolution
27
in accordance with the method determined by the Committee
28
under subsection (3); and
29
(b) all Nature Repair Market Committee members were
30
informed of the proposed resolution, or reasonable efforts
31
had been made to inform all Nature Repair Market
32
Committee members of the proposed resolution.
33
Part 19
Nature Repair Market Committee
Division 3
Membership of the Nature Repair Market Committee
Section 202
228
Nature Repair Market Bill 2023
No. , 2023
(3) Subsection (2) applies only if the Nature Repair Market
1
Committee:
2
(a) determines that it applies; and
3
(b) determines the method by which Nature Repair Market
4
Committee members are to indicate agreement with
5
resolutions.
6
202 Disclosure of interests to the Minister
7
A Nature Repair Market Committee member must give written
8
notice to the Minister of all interests, pecuniary or otherwise, that
9
the member has or acquires and that conflict or could conflict with
10
the proper performance of the member's duties.
11
203 Disclosure of interests to the Nature Repair Market Committee
12
(1) A Nature Repair Market Committee member
who has an interest,
13
pecuniary or otherwise, in a matter being considered or about to be
14
considered by the Committee must disclose the nature of the
15
interest to a meeting of the Committee.
16
(2) The disclosure must be made as soon as possible after the relevant
17
facts have come to the Nature Repair Market Committee member's
18
knowledge.
19
(3) The disclosure must be recorded in the minutes of the meeting.
20
(4) Unless the Nature Repair Market Committee otherwise determines,
21
the Nature Repair Market Committee member:
22
(a) must not be present during any deliberation of the Committee
23
on the matter; and
24
(b) must not take part in any decision of the Committee
with
25
respect to the matter.
26
(5) For the purposes of making a determination under subsection (4),
27
the Nature Repair Market Committee member:
28
(a) must not be present during any deliberation of the Committee
29
for the purpose of making the determination; and
30
(b) must not take part in making the determination.
31
Nature Repair Market Committee
Part 19
Membership of the Nature Repair Market Committee
Division 3
Section 204
No. , 2023
Nature Repair Market Bill 2023
229
(6) A determination under subsection (4) must be recorded in the
1
minutes of the meeting of the Nature Repair Market Committee.
2
204 Other paid work
3
A Nature Repair Market Committee member must not engage in
4
any paid work that conflicts or could conflict with the proper
5
performance of the Nature Repair Market Committee member's
6
duties.
7
205 Remuneration
8
(1) A Nature Repair Market Committee member is to be paid the
9
remuneration that is determined by the Remuneration Tribunal. If
10
no determination of that remuneration by the Tribunal is in
11
operation, the Nature Repair Market Committee member is to be
12
paid the remuneration that is prescribed by the rules.
13
(2) A Nature Repair Market Committee member is to be paid the
14
allowances that are prescribed by the rules.
15
(3) This section has effect subject to the
Remuneration Tribunal Act
16
1973
.
17
206 Leave of absence
18
(1) The Minister may grant leave of absence to the Chair of the Nature
19
Repair Market Committee on the terms and conditions that the
20
Minister determines.
21
(2) The Chair of the Nature Repair Market Committee may grant leave
22
of absence to any Nature Repair Market Committee member on the
23
terms and conditions that the Chair determines.
24
207 Resignation
25
(1) A Nature Repair Market Committee member may resign the
26
member's appointment by giving the Minister a written
27
resignation.
28
Part 19
Nature Repair Market Committee
Division 3
Membership of the Nature Repair Market Committee
Section 208
230
Nature Repair Market Bill 2023
No. , 2023
(2) The resignation takes effect on the day it is received by the
1
Minister or, if a later day is specified in the resignation, on that
2
later day.
3
208 Termination of appointment
4
(1) The Minister may terminate the appointment of a Nature Repair
5
Market Committee member:
6
(a) for misbehaviour; or
7
(b) if the member is unable to perform the duties of the
8
member's office because of physical or mental incapacity.
9
(2) The Minister may terminate the appointment of a Nature Repair
10
Market Committee member if:
11
(a) the member:
12
(i) becomes bankrupt; or
13
(ii) applies to take the benefit of any law for the relief of
14
bankrupt or insolvent debtors; or
15
(iii) compounds with the member's creditors; or
16
(iv) makes an assignment of the member's remuneration for
17
the benefit of the member's creditors; or
18
(b) the member is absent, except on leave of absence, from 3
19
consecutive meetings of the Committee; or
20
(c) the member engages in paid work that conflicts or could
21
conflict with the proper performance of the member's duties
22
(see section 204); or
23
(d) the member fails, without reasonable excuse, to comply with
24
section 202 or 203 (which deal with the duty to disclose
25
interests).
26
(3) The Minister may terminate the appointment of the Chair of the
27
Nature Repair Market Committee if the Chair is any of the
28
following:
29
(a) an employee of the Commonwealth;
30
(b) an employee of an authority of the Commonwealth;
31
(c) a person who holds a full-time office under a law of the
32
Commonwealth.
33
Nature Repair Market Committee
Part 19
Membership of the Nature Repair Market Committee
Division 3
Section 209
No. , 2023
Nature Repair Market Bill 2023
231
209 Other terms and conditions
1
A Nature Repair Market Committee member holds office on the
2
terms and conditions (if any) in relation to matters not covered by
3
this Act that are determined by the Minister.
4
210 Assistance to Nature Repair Market Committee
5
(1) Any or all of the following bodies:
6
(a) the Regulator;
7
(b) the Department;
8
(c) any other Department, agency or authority of the
9
Commonwealth;
10
may assist the Nature Repair Market Committee in the
11
performance of its functions.
12
(2) The assistance provided by the Regulator may include the
13
following:
14
(a) the provision of information;
15
(b) the provision of advice.
16
(3) The assistance provided by a body mentioned in paragraph (1)(b)
17
or (c) may include the following:
18
(a) the provision of information;
19
(b) the provision of advice;
20
(c) the making available of resources and facilities (including
21
secretariat services and clerical assistance).
22
(4) If an officer or employee of a body mentioned in subsection (1)
23
assists the Nature Repair Market Committee, the officer or
24
employee is taken, for the purposes of this Act, to be a person
25
assisting the Nature Repair Market Committee under this section.
26
210A Application of the finance law
27
A member of the Nature Repair Market Committee is not an
28
official of the Department for the purposes of the finance law
29
(within the meaning of the
Public Governance, Performance and
30
Accountability Act 2013
).
31
Part 20
Review of decisions
Division 1
Introduction
Section 211
232
Nature Repair Market Bill 2023
No. , 2023
Part 20--Review of decisions
1
Division 1--Introduction
2
211 Simplified outline of this Part
3
Certain decisions of delegates of the Regulator may be reviewed by
4
the Administrative Appeals Tribunal following a process of
5
internal reconsideration by the Regulator.
6
Certain decisions of the Regulator may be reviewed by the
7
Administrative Appeals Tribunal.
8
Review of decisions
Part 20
Decisions of the Regulator
Division 2
Section 212
No. , 2023
Nature Repair Market Bill 2023
233
Division 2--Decisions of the Regulator
1
212 Reviewable decisions
2
For the purposes of this Act, each of the following decisions is a
3
reviewable decision
:
4
(a) a decision under section 15 to approve, or refuse to approve,
5
the registration of a biodiversity project;
6
(b) a decision under rules made for the purposes of section 19,
7
20 or 21 to vary, or refuse to vary, the registration of a
8
registered biodiversity project;
9
(c) a decision under rules made for the purposes of section 23 or
10
24 to cancel, or refuse to cancel, the registration of a
11
registered biodiversity project;
12
(d) a decision under rules made for the purposes of section 26,
13
27, 28, 29, 30, 31 or 42 to cancel the registration of a
14
registered biodiversity project;
15
(e) a decision under section 34 to extend, or not to extend, the
16
permanence period for a registered biodiversity project;
17
(f) a decision under section 70 to issue, or refuse to issue, a
18
biodiversity certificate;
19
(g) a decision under subsection 102(3) to exempt, or refuse to
20
exempt, a registered biodiversity project from
21
subsection 102(2);
22
(h) a decision under subsection 121(9) to reimburse, or refuse to
23
reimburse, a person for reasonable costs incurred by the
24
person in complying with a notice under subsection 121(2);
25
(i) a decision under section 141 to approve, or refuse to approve,
26
the deposit of a biodiversity certificate with the Regulator;
27
(j) a decision under section 144, 146, 147 or 147A to give a
28
relinquishment notice;
29
(k) a decision under subsection 150(2) to refuse to extend the
30
period mentioned in subsection 150(1);
31
(l) a decision under section 154 to make a biodiversity
32
maintenance declaration;
33
Part 20
Review of decisions
Division 2
Decisions of the Regulator
Section 213
234
Nature Repair Market Bill 2023
No. , 2023
(m) a decision under section 157 to vary or revoke, or to refuse to
1
vary or revoke, a biodiversity maintenance declaration;
2
(n) a decision under section 158 to revoke, or to refuse to revoke,
3
a biodiversity maintenance declaration;
4
(o) a decision under paragraph 162(1)(i) to comply with, or
5
refuse, a request under that paragraph;
6
(p) a decision under subsection 162(4) to remove, or not to
7
remove, information from the Register;
8
(q) a decision under section 163 to comply with, or refuse, a
9
request not to set out a project area in the Register;
10
(r) a decision under section 163A to comply with, or refuse, a
11
request not to set out information in the Register;
12
(s) a decision under a provision of the rules, or under a provision
13
of another legislative instrument made under this Act, if the
14
provision is prescribed by:
15
(i) the rules; or
16
(ii) that legislative instrument;
17
for the purposes of this paragraph.
18
213 Notice of decision and reconsideration rights to be given--
19
decisions made by delegates of the Regulator
20
Scope
21
(1) This section applies to a reviewable decision if the decision is
22
made by a delegate of the Regulator.
23
Notice of decision and reconsideration rights
24
(2) The delegate must take such steps as are reasonable in the
25
circumstances to give notice, in writing or otherwise, to each
26
person whose interests are affected by the decision, of:
27
(a) the making of the decision; and
28
(b) the person's right to have the decision reconsidered under
29
this Part.
30
Note:
For notification of reviewable decisions made by the Regulator (rather
31
than a delegate), see section 27A of the
Administrative Appeals
32
Tribunal Act 1975
.
33
Review of decisions
Part 20
Decisions of the Regulator
Division 2
Section 214
No. , 2023
Nature Repair Market Bill 2023
235
(3) A failure to comply with this section does not affect the validity of
1
the decision.
2
214 Applications for reconsideration of decisions made by delegates
3
of the Regulator
4
Scope
5
(1) This section applies to a reviewable decision if the decision is
6
made by a delegate of the Regulator.
7
Note:
For review of decisions not made by a delegate of the Regulator, see
8
subsection 217(2).
9
Application
10
(2) A person affected by a reviewable decision who is dissatisfied with
11
the decision may apply to the Regulator for the Regulator to
12
reconsider the decision.
13
(3) The application must:
14
(a) be in a form approved in writing by the Regulator; and
15
(b) set out the reasons for the application; and
16
(c) be accompanied by the fee (if any) specified in the rules.
17
(4) The application must be made within:
18
(a) 28 days after the applicant is informed of the decision; or
19
(b) if, either before or after the end of that period of 28 days, the
20
Regulator extends the period within which the application
21
may be made--the extended period.
22
(5) An approved form of an application may provide for verification
23
by statutory declaration of statements in applications.
24
(6) A fee specified under paragraph (3)(c) must not be such as to
25
amount to taxation.
26
215 Reconsideration by the Regulator
27
(1) Upon receiving such an application, the Regulator must:
28
(a) reconsider the decision; and
29
Part 20
Review of decisions
Division 2
Decisions of the Regulator
Section 216
236
Nature Repair Market Bill 2023
No. , 2023
(b) affirm, vary or revoke the decision.
1
(2) The Regulator's decision on reconsideration of a decision has
2
effect as if it had been made under the provision under which the
3
original decision was made.
4
(3) The Regulator must give to the applicant a written notice stating
5
the Regulator's decision on the reconsideration.
6
(4) Within 28 days after making the decision on the reconsideration,
7
the Regulator must give the applicant a written statement of the
8
Regulator's reasons for the decision.
9
216 Deadline for reconsideration
10
(1) The Regulator must make its decision on reconsideration of a
11
decision within 90 days after receiving an application for
12
reconsideration.
13
(2) The Regulator is taken, for the purposes of this Part, to have made
14
a decision affirming the original decision if the Regulator has not
15
informed the applicant of its decision on the reconsideration before
16
the end of the period of 90 days.
17
217 Review by the Administrative Appeals Tribunal
18
(1) Applications may be made to the Administrative Appeals Tribunal
19
to review a reviewable decision if the Regulator has affirmed or
20
varied the decision under section 215.
21
(2) Applications may be made to the Administrative Appeals Tribunal
22
to review a reviewable decision if the decision was not made by a
23
delegate of the Regulator.
24
Note:
Section 27A of the
Administrative Appeals Tribunal Act 1975
requires
25
notification of a decision that is reviewable.
26
Miscellaneous
Part 21
Section 218
No. , 2023
Nature Repair Market Bill 2023
237
Part 21--Miscellaneous
1
2
218 Simplified outline of this Part
3
This Part deals with miscellaneous matters.
4
219 Miscellaneous functions of the Regulator
5
The Regulator has the following functions:
6
(a) to monitor compliance with this Act;
7
(b) to promote compliance with this Act;
8
(c) to conduct or coordinate education programs about this Act;
9
(d) to advise the Minister on matters relating to this Act;
10
(e) to advise the Nature Repair Market Committee on matters
11
relating to the making, variation or revocation of
12
methodology determinations or biodiversity assessment
13
instruments;
14
(f) to advise and assist persons in relation to their obligations
15
under this Act;
16
(g) to advise and assist prospective applicants in connection with
17
ensuring that applications are in accordance with this Act;
18
(h) to advise and assist the representatives of persons in relation
19
to compliance by persons with this Act;
20
(i) to liaise with regulatory and other relevant bodies, whether in
21
Australia or elsewhere, about cooperative arrangements for
22
matters relating to this Act;
23
(j) to advise and assist in relation to the development of the
24
market for:
25
(i) biodiversity certificates; or
26
(ii) other certificates, units or credits (however described,
27
and whether issued under a law of the Commonwealth,
28
a State or a Territory, or in some other way) that relate
29
to biodiversity projects;
30
Part 21
Miscellaneous
Section 220
238
Nature Repair Market Bill 2023
No. , 2023
(k) to collect, analyse, interpret and disseminate statistical
1
information relating to the operation of this Act.
2
220 Treatment of trusts
3
(1) This Act applies to a trust as if it were a person, but with the
4
changes set out in this section.
5
Trusts with a single trustee
6
(2) If the trust has a single trustee:
7
(a) an obligation that would otherwise be imposed on the trust by
8
or under this Act is imposed on the trustee instead; and
9
(b) a contravention of a civil penalty provision of this Act that
10
would otherwise have been committed by the trust is taken to
11
have been committed by the trustee.
12
Trusts with multiple trustees
13
(3) If the trust has 2 or more trustees:
14
(a) an obligation that would otherwise be imposed on the trust by
15
or under this Act is imposed on each trustee instead, but may
16
be discharged by any of the trustees; and
17
(b) a contravention of a civil penalty provision of this Act that
18
would otherwise have been committed by the trust is taken to
19
have been committed by each trustee of the trust, at the time
20
the contravention was committed, who:
21
(i) did the relevant act or made the relevant omission; or
22
(ii) aided, abetted, counselled or procured the relevant act or
23
omission; or
24
(iii) was in any way knowingly concerned in, or party to, the
25
relevant act or omission (whether directly or indirectly
26
and whether by any act or omission of the trustee).
27
221 Rules may provide for voluntary accreditation of advisers etc.
28
(1) The rules may make provision for and in relation to the voluntary
29
accreditation of persons who give advice, or otherwise provide
30
assistance, in relation to any of the following:
31
Miscellaneous
Part 21
Section 222
No. , 2023
Nature Repair Market Bill 2023
239
(a) the operation of this Act;
1
(b) the carrying out of biodiversity projects;
2
(c) the trading of biodiversity certificates.
3
(2) Without limiting subsection (1), rules made for the purposes of that
4
subsection may do any of the following:
5
(a) make it a condition of accreditation that a person pass a test
6
relating to the person's knowledge of the scheme for
7
biodiversity stewardship established by this Act;
8
(b) make it a condition of accreditation that a person be a fit and
9
proper person to hold the accreditation;
10
(c) set fees for applications under the rules.
11
(3) A fee set under paragraph (2)(c) must not be such as to amount to
12
taxation.
13
(4) Rules made for the purposes of subsection (1) must not require a
14
person to be accredited in order to engage in an activity referred to
15
in a paragraph of subsection (1).
16
222 Information previously given to the Regulator
17
If:
18
(a) on a particular occasion, a person gave information to the
19
Regulator under:
20
(i) this Act; or
21
(ii) the
Carbon Credits (Carbon Farming Initiative) Act
22
2011
, or a legislative instrument made under that Act;
23
and
24
(b) the person is subsequently required or permitted, under this
25
Act, to give the same information to the Regulator;
26
the person is taken to have given the information to the Regulator
27
on that later occasion.
28
223 Delegation by the Minister
29
(1) The Minister may, in writing, delegate all or any of the Minister's
30
functions or powers under this Act to:
31
(a) the Secretary; or
32
Part 21
Miscellaneous
Section 224
240
Nature Repair Market Bill 2023
No. , 2023
(b) an SES employee, or acting SES employee, in the
1
Department.
2
Note 1:
The expressions
SES employee
and
acting SES employee
are defined
3
in section 2B of the
Acts Interpretation Act 1901
.
4
Note 2:
Sections 34AA to 34A of the
Acts Interpretation Act 1901
contain
5
provisions relating to delegations.
6
(2) In performing a delegated function or exercising a delegated
7
power, the delegate must comply with any written directions of the
8
Minister.
9
(3) Subsection (1) does not apply to a power to make, vary or revoke a
10
legislative instrument.
11
224 Delegation by the Secretary
12
(1) The Secretary may, in writing, delegate all or any of the
13
Secretary's functions or powers under this Act to:
14
(a) a person who is an SES employee, or acting SES employee,
15
in the Department; or
16
(b) a person who is:
17
(i) an official of the Regulator; and
18
(ii) an SES employee, or acting SES employee.
19
Note 1:
The expressions
SES employee
and
acting SES employee
are defined
20
in section 2B of the
Acts Interpretation Act 1901
.
21
Note 2:
Sections 34AA to 34A of the
Acts Interpretation Act 1901
contain
22
provisions relating to delegations.
23
(2) In performing a delegated function or exercising a delegated
24
power, the delegate must comply with any written directions of the
25
Secretary.
26
225 Concurrent operation of State and Territory laws
27
This Act is not intended to exclude or limit the operation of a law
28
of a State or Territory that is capable of operating concurrently
29
with this Act.
30
Miscellaneous
Part 21
Section 226
No. , 2023
Nature Repair Market Bill 2023
241
226 Law relating to legal professional privilege not affected
1
This Act does not affect the law relating to legal professional
2
privilege.
3
227 Arrangements with States and Territories
4
The Minister may enter into an arrangement with a relevant
5
Minister of a State or Territory in relation to the administration of
6
this Act, including:
7
(a) arrangements for the performance of the functions of a
8
magistrate under this Act by a magistrate of that State or
9
Territory; and
10
(b) arrangements for the exercise of the powers conferred by
11
section 94 on relevant land registration officials of that State
12
or Territory; and
13
(c) arrangements for the exercise of the powers conferred by
14
section 95 on relevant land registration officials of that State
15
or Territory.
16
228 Liability for damages
17
None of the following:
18
(a) the Minister;
19
(b) a delegate of the Minister;
20
(c) the Secretary;
21
(d) a delegate of the Secretary;
22
(e) the Regulator;
23
(f) a delegate of the Regulator;
24
(g) an inspector;
25
(h) a person assisting an inspector;
26
(i) an audit team leader;
27
(j) a person assisting an audit team leader;
28
(k) a Nature Repair Market Committee member;
29
(l) a person assisting the Nature Repair Market Committee;
30
Part 21
Miscellaneous
Section 229
242
Nature Repair Market Bill 2023
No. , 2023
is liable to an action or other proceeding for damages for, or in
1
relation to, an act or matter in good faith done or omitted to be
2
done:
3
(m) in the performance or purported performance of any function;
4
or
5
(n) in the exercise or purported exercise of any power;
6
conferred by this Act.
7
229 Executive power of the Commonwealth
8
This Act does not, by implication, limit the executive power of the
9
Commonwealth.
10
230 Notional payments by the Commonwealth
11
(1) The purpose of this section is to ensure that amounts payable under
12
this Act are notionally payable by the Commonwealth (or parts of
13
the Commonwealth).
14
(2) The Minister responsible for administering the
Public Governance,
15
Performance and Accountability Act 2013
may give written
16
directions for the purposes of this section, including directions
17
relating to the transfer of amounts within, or between, accounts
18
operated by the Commonwealth.
19
(3) A direction under subsection (2) has effect, and must be complied
20
with, despite any other law of the Commonwealth.
21
(4) A direction under subsection (2) is not a legislative instrument.
22
231 Compensation for acquisition of property
23
(1) If the operation of this Act would result in an acquisition of
24
property (within the meaning of paragraph 51(xxxi) of the
25
Constitution) from a person otherwise than on just terms (within
26
the meaning of that paragraph), the Commonwealth is liable to pay
27
a reasonable amount of compensation to the person.
28
(2) If the Commonwealth and the person do not agree on the amount
29
of the compensation, the person may institute proceedings in:
30
Miscellaneous
Part 21
Section 232
No. , 2023
Nature Repair Market Bill 2023
243
(a) the Federal Court; or
1
(b) the Supreme Court of a State or Territory;
2
for the recovery from the Commonwealth of such reasonable
3
amount of compensation as the court determines.
4
232 Native title rights not affected
5
This Act does not affect the operation of the
Native Title Act 1993
.
6
233 Racial Discrimination Act not affected
7
This Act does not affect the operation of the
Racial Discrimination
8
Act 1975
.
9
234 Administrative decisions under the rules
10
The rules may make provision in relation to a matter by conferring
11
a power to make a decision of an administrative character on the
12
Regulator.
13
235 Revocation or variation of instruments
14
A provision of this Act that expressly authorises the revocation or
15
variation of an instrument does not, by implication, limit the
16
application of subsection 33(3) of the
Acts Interpretation Act 1901
17
in relation to other instruments under this Act.
18
236 Review of operation of this Act etc.
19
(1) The Minister must cause independent reviews of the operation of
20
this Act to be undertaken.
21
(2) A review under subsection (1) must include a review of:
22
(a) the extent to which this Act has achieved the objects of this
23
Act; and
24
(b) the operation of the Nature Repair Market Committee; and
25
(c) the process for making:
26
(i) methodology determinations; and
27
(ii) biodiversity assessment instruments; and
28
Part 21
Miscellaneous
Section 236
244
Nature Repair Market Bill 2023
No. , 2023
(d) the kinds of advice obtained by the Nature Repair Market
1
Committee under section 196; and
2
(e) any other matters that the Minister directs, in writing, the
3
review to consider.
4
Public consultation
5
(3) A review under subsection (1) must make provision for public
6
consultation.
7
Report
8
(4) The persons undertaking a review under subsection (1) must give
9
the Minister a written report of the review.
10
(5) A report of the review:
11
(a) must set out any directions given by the Minister under
12
paragraph (2)(e); and
13
(b) may set out recommendations to the Commonwealth
14
Government.
15
(6) The Minister must cause a copy of a report of the review to be:
16
(a) tabled in each House of the Parliament within 15 sitting days
17
of that House after the report is given to the Minister; and
18
(b) published on the Department's website as soon as practicable
19
after the report is given to the Minister.
20
(7) If a report of the review sets out one or more recommendations to
21
the Commonwealth Government:
22
(a) as soon as practicable after receiving the report, the Minister
23
must cause to be prepared a statement setting out the
24
Commonwealth Government's response to each of the
25
recommendations; and
26
(b) within 6 months after receiving the report, the Minister must
27
cause copies of the statement to be tabled in each House of
28
the Parliament.
29
Miscellaneous
Part 21
Section 237
No. , 2023
Nature Repair Market Bill 2023
245
First review
1
(8) The first review under subsection (1) must be completed within 5
2
years after the day determined by the Minister under
3
subsection 11(2).
4
Note:
The day determined by the Minister under subsection 11(2) is the first
5
day on which applications may be made for the Regulator to approve
6
the registration of a biodiversity project.
7
Subsequent reviews
8
(9) Each subsequent review under subsection (1) must be completed
9
within 5 years after the completion of the previous review.
10
When review is completed
11
(10) For the purposes of subsections (8) and (9) a review is completed
12
when the report of the review is given to the Minister under
13
subsection (4).
14
Direction not a legislative instrument
15
(11) A direction given under paragraph (2)(e) is not a legislative
16
instrument.
17
237 Rules
18
(1) The Minister may, by legislative instrument, make rules
19
prescribing matters:
20
(a) required or permitted by this Act to be prescribed by the
21
rules; or
22
(b) necessary or convenient to be prescribed for carrying out or
23
giving effect to this Act.
24
(2) To avoid doubt, the rules may not do the following:
25
(a) create an offence or civil penalty;
26
(b) provide powers of:
27
(i) arrest or detention; or
28
(ii) entry, search or seizure;
29
(c) impose a tax;
30
Part 21
Miscellaneous
Section 237
246
Nature Repair Market Bill 2023
No. , 2023
(d) set an amount to be appropriated from the Consolidated
1
Revenue Fund under an appropriation in this Act;
2
(e) directly amend the text of this Act.
3
(3) Despite subsection 14(2) of the
Legislation Act 2003
, the rules may
4
make provision in relation to a matter by applying, adopting or
5
incorporating, with or without modification, any matter contained
6
in any other instrument or other writing as in force or existing from
7
time to time.
8