Commonwealth: Nature Repair Act 2023 (Cth)

Nature Repair Act 2023 No. 121, 2023 Compilation No. 1 Compilation date: 14 October 2024 Includes amendments: Act No. 39, 2024 About this compilation This compilation This is a compilation of the Nature Repair Act 2023 that shows the text of the law as amended and in force on 14 October 2024 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part 1—Preliminary 1 Short title 2 Commencement 3 Objects of this Act 4 Simplified outline of this Act 5 Crown to be bound 6 Extension to external Territories 7 Definitions 8 Vacancy in the office of a Nature Repair Committee member 9 Electronic notice transmitted to the Regulator Part 2—Registered biodiversity projects Division 1—Introduction 10 Simplified outline of this Part Division 2—Registration of biodiversity project 11 Application for approval of registration of biodiversity project 12 Form of application 13 Further information 14 Withdrawal of application 15 Approval of registration of biodiversity project 16 Suspension of processing of applications for registrations of biodiversity projects 17 Registration may be subject to condition about obtaining regulatory approvals 18 Registration may be subject to condition about obtaining consents from eligible interest holders 18A Registration may be subject to condition about obtaining consent from registered native title body corporate Division 3—Variation of registration 19 Voluntary variation of registration of biodiversity project—change in identity of project proponent 20 Voluntary variation of registration of biodiversity project—changes in project area etc. 21 Voluntary variation of conditional registration of biodiversity project—condition of registration has been met 22 Procedures for voluntary variation of registration of biodiversity project Division 4—Cancellation of registration of biodiversity project Subdivision A—Voluntary cancellation of registration of biodiversity project 23 Voluntary cancellation of registration of biodiversity project—certificate in effect 24 Voluntary cancellation of registration of biodiversity project—no certificate in effect 25 Procedures for voluntary cancellation of registration of biodiversity project Subdivision B—Unilateral cancellation of registration of biodiversity project 26 Unilateral cancellation of registration of biodiversity project—condition of registration has not been met 27 Unilateral cancellation of registration of biodiversity project—project not commenced, or unlikely to result in issuing of biodiversity certificate 28 Unilateral cancellation of registration of biodiversity project—eligibility requirements not met etc. 29 Unilateral cancellation of registration of biodiversity project—project proponent ceases to be a fit and proper person 30 Unilateral cancellation of registration of biodiversity project—project proponent ceases to exist etc. 31 Unilateral cancellation of registration of biodiversity project—false or misleading information 32 Notice of unilateral cancellation of registration of biodiversity project Subdivision C—Cancellation of registration of biodiversity project at the end of the permanence period for the project 32A Cancellation of registration of biodiversity project at the end of the permanence period for the project Division 5—Excluded biodiversity projects 33 Excluded biodiversity projects Division 6—Permanence period 34 Permanence period Part 3—Multiple project proponents Division 1—Introduction 35 Simplified outline of this Part Division 2—References to project proponents 36 References to project proponents Division 3—Nominee of multiple project proponents 37 Nomination of nominee by multiple project proponents—nomination accompanying application 38 Nomination of nominee by multiple project proponents—other nominations 39 Revocation and cessation of nomination 40 Service of documents on nominee 41 Eligible voluntary action taken by nominee 42 Unilateral cancellation of registration of biodiversity project—failure of multiple project proponents to nominate a nominee Division 4—Obligations of multiple project proponents 43 Obligations of multiple project proponents Part 4—Methodology determinations Division 1—Introduction 44 Simplified outline of this Part Division 2—Methodology determinations Subdivision A—Making of methodology determinations 45 Methodology determinations 46 Civil penalties—requirements in methodology determination 47 Procedure for making a methodology determination Subdivision B—Variation of methodology determinations 48 Variation of methodology determinations 49 When variation takes effect Subdivision C—Duration, expiry and revocation of methodology determinations 50 Duration of methodology determinations 51 Revocation of methodology determinations 52 Consequences of methodology determination ceasing to have effect 53 Effect of methodology determination ceasing to have effect—applications for registration Subdivision D—Advice about making, varying or revoking methodology determinations 54 Advice by the Nature Repair Committee 55 Additional matters for the Nature Repair Committee to take into account Subdivision E—Consultation by the Nature Repair Committee 56 Consultation by the Nature Repair Committee Division 3—Biodiversity integrity standards 57 Biodiversity integrity standards Division 4—Biodiversity assessment instruments Subdivision A—Making of biodiversity assessment instruments 58 Biodiversity assessment instruments 59 Procedure for making a biodiversity assessment instrument Subdivision B—Variation of biodiversity assessment instruments 60 Variation of biodiversity assessment instruments 61 Procedure for varying a biodiversity assessment instrument Subdivision C—Revocation of biodiversity assessment instruments 62 Revocation of biodiversity assessment instruments 63 Procedure for revoking a biodiversity assessment instrument Subdivision D—Advice about making, varying or revoking biodiversity assessment instruments 64 Advice by the Nature Repair Committee 65 Consultation by the Nature Repair Committee 65A Additional matters for the Nature Repair Committee to take into account Part 5—Biodiversity certificates Division 1—Introduction 66 Simplified outline of this Part Division 2—Issue of biodiversity certificates 67 Application for biodiversity certificate 68 Form of application 69 Further information 70 Issue of biodiversity certificate 70A Correction of biodiversity certificate 71 Basis on which biodiversity certificates are issued Division 3—Property in biodiversity certificates 72 A biodiversity certificate is personal property 73 Ownership of biodiversity certificate 74 Transmission of biodiversity certificates 75 Registration of equitable interests in relation to biodiversity certificates 76 Equitable interests in relation to biodiversity certificates 76A Biodiversity certificates not to be used for environmental offsetting purpose Division 4—Cancellation of biodiversity certificate at the end of the permanence period for a registered biodiversity project 77 Cancellation of biodiversity certificate at the end of the permanence period for a registered biodiversity project Division 5—Cancellation of biodiversity certificate if registration of registered biodiversity project is cancelled 77A Cancellation of biodiversity certificate if registration of registered biodiversity project is cancelled Part 6—Purchase of biodiversity certificates by the Commonwealth Division 1—Introduction 78 Simplified outline of this Part Division 2—Biodiversity conservation contracts 79 Biodiversity conservation contracts 80 When biodiversity conservation contracts may be entered into 81 Secretary has powers etc. of the Commonwealth 82 Conferral of powers on the Secretary Division 3—Biodiversity conservation purchasing processes 83 Biodiversity conservation purchasing process 84 Conduct of biodiversity conservation purchasing processes Division 4—Miscellaneous 85 Rules may provide for certain matters relating to purchased biodiversity certificates 86 Certain instruments relating to Commonwealth procurement are not applicable 87 Biodiversity conservation contracts are not instruments made under this Act Part 7—Interests in land Division 1—Introduction 88 Simplified outline of this Part Division 2—Eligible interest in an area of land 89 Eligible interest in an area of land—Torrens system land 90 Eligible interest in an area of land—Crown land that is not Torrens system land 92 Eligible interest in an area of land—Aboriginal land council Division 3—Freehold land rights land 93 Regulator to notify Crown lands Minister of approval of registration of biodiversity project Division 4—Entries in title registers 94 Entries in title registers—general 95 Entries in title registers—biodiversity maintenance areas Part 8—Fit and proper person 96 Simplified outline of this Part 97 Fit and proper person—individuals 98 Fit and proper person—corporations 99 Fit and proper person—trusts 99A Fit and proper person—non‑corporate government bodies Part 9—Reporting and notification requirements Division 1—Introduction 100 Simplified outline of this Part Division 2—Reporting requirements Subdivision A—Category A biodiversity project reports 101 Category A biodiversity project reports—first report 102 Category A biodiversity project reports—subsequent reports 103 Requirements for category A biodiversity project reports Subdivision B—Category B biodiversity project reports 104 Category B biodiversity project reports Subdivision C—Alternative assurance agreements 104A Alternative assurance agreements Division 3—Notification requirements 105 Notification requirement—project proponent ceases to have right to carry out project 106 Notification requirement—withdrawal or cessation of regulatory approval 107 Notification requirement—death of project proponent 108 Notification requirement—methodology determinations 109 Notification requirement—reversal of biodiversity outcome 110 Notification requirement—event or conduct that causes, or is likely to cause, reversal of biodiversity outcome 111 Significant reversals in biodiversity outcomes—notification requirements 112 Notification requirement—event relevant to whether a project proponent is a fit and proper person 113 Notification requirement—variation of project plan 114 The rules may impose notification requirements Part 10—Information‑gathering powers 115 Simplified outline of this Part 116 Regulator may obtain information or documents 117 Copying documents—compensation 118 Copies of documents 119 Regulator may retain documents Part 11—Audits Division 1—Introduction 120 Simplified outline of this Part Division 2—Audits 121 Compliance audits 122 Other audits 123 Information‑gathering of audit team leaders and persons assisting audit team leaders Division 3—Audit information Subdivision A—Information 124 Meaning of audit information 125 Meaning of protected audit information Subdivision B—Secrecy 126 Secrecy—protected audit information Subdivision C—Disclosure or use of audit information 127 Disclosure or use for purposes of carrying out biodiversity audit or preparing biodiversity audit report etc. 128 Disclosure to the Regulator 129 Disclosure to Minister etc. 130 Disclosure to the Secretary etc. 131 Disclosure to reduce serious risk to life or health of individual 132 Disclosure to reduce serious risk to the environment 133 Disclosure to a court, tribunal etc 134 Disclosure of publicly available information 135 Disclosure with consent 136 Disclosure to person to whom audit information relates 137 Disclosure to person who provided audit information 138 Disclosure of statistics Part 12—Deposit of biodiversity certificates with the Regulator 139 Simplified outline of this Part 140 Application to approve the deposit of a biodiversity certificate with the Regulator 141 Approval of deposit of a biodiversity certificate with the Regulator 142 Deposit of a biodiversity certificate with the Regulator Part 13—Relinquishment requirements Division 1—Introduction 143 Simplified outline of this Part Division 2—Relinquishment notices 144 Relinquishment notice—false or misleading information 146 Relinquishment notice—reversal of biodiversity outcome other than due to natural disturbance or conduct etc. 147 Relinquishment notice—reversal of biodiversity outcome due to natural disturbance or conduct and no mitigation happens 147A Relinquishment notice—circumstances prescribed by the rules 148 Significant reversals in biodiversity outcomes—relinquishment requirements 149 Form and content of relinquishment notice Division 3—Complying with a relinquishment notice 150 Requirement for compliance with relinquishment notice 151 Compliance with relinquishment requirement—relinquishing equivalent biodiversity certificate or certificates 152 How biodiversity certificates are relinquished Part 14—Biodiversity maintenance declarations Division 1—Introduction 153 Simplified outline of this Part Division 2—Biodiversity maintenance declarations 154 Biodiversity maintenance declaration 155 Civil penalty for carrying out declared prohibited activity 156 When a biodiversity maintenance declaration ceases to be in force 157 Variation or revocation of biodiversity maintenance declaration 158 Revocation of biodiversity maintenance declaration—voluntary relinquishment of biodiversity certificate Part 15—Registers Division 1—Introduction 160 Simplified outline of this Part Division 2—Biodiversity Market Register 161 Biodiversity Market Register 162 Entries in the Register—registered biodiversity projects and former registered biodiversity projects 163 Requests for information about project area not to be set out in the Register 163A Requests for information about a project not to be set out in the Register 164 Entries in the Register—biodiversity certificates 165 Entries in the Register—accounts for holding biodiversity certificates 166 Suspension of operation of the Register 167 Rules may make provision in relation to the Register 168 Use and disclosure of information obtained from the Register Division 3—Online platform 169 Online Platform Part 16—Publication of information Division 1—Introduction 170 Simplified outline of this Part Division 2—Information about biodiversity certificates 171 Information about biodiversity certificates 172 Reports about activities of Regulator 173 Publication of concise description of the characteristics of biodiversity certificates 173A Information about market for biodiversity certificates Division 3—Information about biodiversity certificates purchased by the Commonwealth 174 Information about biodiversity conservation purchasing processes 175 Annual reports about purchases of biodiversity certificates Division 4—Information about relinquishment requirements 176 Information about relinquishment requirements 177 Information about relinquished certificates Part 17—Record‑keeping and project monitoring requirements Division 1—Introduction 178 Simplified outline of this Part Division 2—Record‑keeping requirements 179 Record‑keeping requirements—general 180 Record‑keeping requirements—preparation of biodiversity project report 181 Record‑keeping requirements—methodology determinations Division 3—Project monitoring requirements 182 Project monitoring requirements—methodology determinations Part 18—Enforcement Division 1—Introduction 183 Simplified outline of this Part 184 Appointment of inspectors Division 2—Monitoring powers 185 Monitoring powers 186 Modifications of Part 2 of the Regulatory Powers Act Division 3—Investigation powers 187 Investigation powers 188 Modifications of Part 3 of the Regulatory Powers Act Division 4—Civil penalty provisions 189 Civil penalty provisions Division 5—Infringement notices 190 Infringement notices Division 6—Enforceable undertakings 191 Enforceable undertakings Division 7—Injunctions 192 Injunctions Part 19—Nature Repair Committee Division 1—Introduction 193 Simplified outline of this Part Division 2—Establishment and functions of the Nature Repair Committee 194 Nature Repair Committee 195 Functions of the Nature Repair Committee 195A Request for review of methodology determinations 196 Nature Repair Committee may obtain advice 196A Nature Repair Committee must publish outcomes of reviews Division 3—Membership of the Nature Repair Committee 197 Membership of the Nature Repair Committee 198 Appointment of Nature Repair Committee members 199 Period for appointment for Nature Repair Committee members 200 Acting Nature Repair Committee members 201 Procedures 202 Disclosure of interests to the Minister 203 Disclosure of interests to the Nature Repair Committee 204 Other paid work 205 Remuneration 206 Leave of absence 207 Resignation 208 Termination of appointment 209 Other terms and conditions 210 Assistance to Nature Repair Committee 210A Application of the finance law Part 20—Review of decisions Division 1—Introduction 211 Simplified outline of this Part Division 2—Decisions of the Regulator 212 Reviewable decisions 213 Notice of decision and reconsideration rights to be given—decisions made by delegates of the Regulator 214 Applications for reconsideration of decisions made by delegates of the Regulator 215 Reconsideration by the Regulator 216 Deadline for reconsideration 217 Review by the Administrative Review Tribunal Part 21—Miscellaneous 218 Simplified outline of this Part 219 Miscellaneous functions of the Regulator 220 Treatment of trusts 221 Rules may provide for voluntary accreditation of advisers etc. 222 Information previously given to the Regulator 223 Delegation by the Minister 224 Delegation by the Secretary 225 Concurrent operation of State and Territory laws 226 Law relating to legal professional privilege not affected 227 Arrangements with States and Territories 228 Liability for damages 229 Executive power of the Commonwealth 230 Notional payments by the Commonwealth 231 Compensation for acquisition of property 232 Native title rights not affected 233 Racial Discrimination Act not affected 234 Administrative decisions under the rules 235 Revocation or variation of instruments 236 Review of operation of this Act etc. 237 Rules Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act to establish a national voluntary framework for projects to enhance or protect biodiversity, and for other purposes Part 1—Preliminary 1 Short title This Act is the Nature Repair Act 2023. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. 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. 15 December 2023 Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Objects of this Act The objects of this Act are: (a) to promote the enhancement and protection of biodiversity in native species in Australia; and (b) to contribute to meeting Australia's international obligations in relation to biodiversity, including the Biodiversity Convention; and (ba) to contribute to meeting Australia's domestic goal of no new extinctions; and (c) to promote engagement and co‑operation of market participants (including Aboriginal persons and Torres Strait Islanders, governments, the community, landholders and private enterprise) in the enhancement or protection of biodiversity in native species in Australia; and (d) to: (i) support and promote the unique role of Aboriginal persons and Torres Strait Islanders in enhancing and protecting biodiversity in native species in Australia; and (ii) enable the use of the knowledge of Aboriginal persons and Torres Strait Islanders related to biodiversity in native species in Australia, guided by the owners of that knowledge; and (e) to contribute to building a knowledge base, and capacity, related to the enhancement or protection of biodiversity in native species in Australia. 4 Simplified outline of this Act A biodiversity project is a project to enhance or protect biodiversity in native species. An eligible person may apply for a biodiversity project to be registered on the Biodiversity Market Register. To be registered, a biodiversity project must meet various requirements, including requirements: (a) to be carried out by one or more project proponents (including the applicant) who are fit and proper persons; and (b) to be covered by a methodology determination. Methodology determinations are legislative instruments that cover particular kinds of biodiversity projects, and set out how a project is to be carried out and the circumstances in which a biodiversity certificate will be issued for a project. The Minister may make a biodiversity assessment instrument that prescribes requirements to be complied with by methodology determinations. A biodiversity certificate represents the biodiversity outcome that a registered biodiversity project is designed to achieve. Biodiversity certificates are the property of their registered holders, and may be transferred. This Act imposes certain obligations on project proponents. These obligations include: (a) obligations to comply with requirements in the methodology determination that covers a project; and (b) reporting and notification obligations; and (c) record‑keeping and monitoring obligations. The Biodiversity Market Register holds entries for each registered biodiversity project and each biodiversity certificate. This Act is administered by the Minister and the Clean Energy Regulator. The Regulator has a range of powers available to enforce the obligations of a project proponent, including the following: (a) civil penalties (some of which apply only after a biodiversity certificate has been issued for a project); (b) other powers under the Regulatory Powers Act; (c) powers to require projects to be audited; (d) powers to require project proponents to relinquish biodiversity certificates; (e) the power to make a biodiversity maintenance declaration that prohibits certain activities in a project area. This Act also contains provisions for: (a) the establishment of the Nature Repair Committee to advise the Minister in relation to the Minister's functions under this Act; and (b) biodiversity integrity standards which a methodology determination must meet; and (c) internal review of decisions under the Act, and review by the Administrative Review Tribunal. 5 Crown to be bound (1) This Act binds the Crown in each of its capacities. (2) This Act does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence. (3) The protection in subsection (2) does not apply to an authority of the Crown. (4) The protection in subsection (2) does not apply in relation to: (a) subsection 150(5); or (b) section 155. 6 Extension to external Territories This Act extends to every external Territory. 7 Definitions In this Act: Aboriginal land council, for an area of land, means a body corporate that: (a) is established under an Act of the Commonwealth, a State or a Territory for the purpose of holding, for the benefit of Aboriginal persons or Torres Strait Islanders: (i) title to land vested in it by or under that Act; or (ii) an estate or interest in land granted under that Act; and (b) has functions relating to land that under a law of the Commonwealth, a State or a Territory is land rights land; and (c) consists of Aboriginal persons or Torres Strait Islanders who: (i) live in an area to which one or more of the body's functions relate; or (ii) are registered as traditional owners of land in an area to which one or more of the body's functions relate; or (iii) have an association with an area to which one or more of the body's functions relate if the Aboriginal persons or Torres Strait Islanders are accepted as members of the land council on the basis of that association. Aboriginal person has the same meaning as in the Aboriginal and Torres Strait Islander Act 2005. activity period of a registered biodiversity project means the activity period identified in the notice of approval of registration under paragraph 15(7)(d), subject to any variation under rules made for the purposes of paragraph 20(1)(c). alternative assurance agreement: see subsection 104A(2). area means: (a) an area of land; or (b) an area of Australian waters; or (c) an area that is a combination of land and Australian waters. audit information has the meaning given by section 124. audit team leader means a registered greenhouse and energy auditor appointed under any of the following provisions: (a) paragraph 12(3)(a); (b) paragraph 68(1)(e); (c) paragraph 103(1)(d); (d) paragraph 103(1)(e); (e) paragraph 104(3)(d); (f) paragraph 104(3)(e); (g) paragraph 121(2)(a); (h) subsection 122(1). Australia, when used in a geographical sense, includes the external Territories. Australian waters means: (a) the territorial sea of Australia; or (b) the waters of the sea on the landward side of the territorial sea of Australia; or (c) the territorial sea of each external Territory; or (d) the waters of the sea on the landward side of the territorial sea of each external Territory; or (e) inland waters. biodiversity means the variability among living organisms from all sources (including terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part) and includes: (a) diversity within species and between species; and (b) diversity of ecosystems. biodiversity assessment instrument means an instrument under section 58. biodiversity audit means: (a) an audit under section 121 or 122; or (b) an audit carried out for the purposes of preparing an audit report prescribed by the rules or a methodology determination for the purposes of any of the following provisions: (i) paragraph 12(3)(a); (ii) paragraph 68(1)(e); (iii) paragraph 103(1)(d); (iv) paragraph 103(1)(e); (v) paragraph 104(3)(d); (vi) paragraph 104(3)(e). biodiversity audit report means: (a) an audit report under section 121 or 122; or (b) an audit report prescribed by the rules or a methodology determination for the purposes of any of the following provisions: (i) paragraph 12(3)(a); (ii) paragraph 68(1)(e); (iii) paragraph 103(1)(d); (iv) paragraph 103(1)(e); (v) paragraph 104(3)(d); (vi) paragraph 104(3)(e). biodiversity certificate means a certificate issued under section 70. biodiversity conservation contract: see section 79. biodiversity conservation contractor: see section 79. biodiversity conservation purchasing process: see section 83. Biodiversity Convention means the Convention on Biological Diversity, done at Rio de Janeiro on 5 June 1992, as in force for Australia from time to time. Note: The Convention is in Australian Treaty Series 1993 No. 32 ([1993] ATS 32) and could in 2023 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au). biodiversity integrity standards: see section 57. biodiversity maintenance area, in relation to a biodiversity maintenance declaration: see subsection 154(1). biodiversity maintenance declaration means a declaration made by the Regulator under subsection 154(1). biodiversity outcome, in relation to a biodiversity project, means the enhancement or protection of biodiversity that the project is designed to achieve. biodiversity project means a project, carried out in a particular area, that is designed to enhance or protect biodiversity in native species (whether the effect on biodiversity occurs within or outside the area). biodiversity project report means: (a) a category A biodiversity project report; or (b) a category B biodiversity project report. body corporate under external administration means: (a) a Chapter 5 body corporate; or (b) a body corporate that has a corresponding status under a law of a foreign country. category A biodiversity project report: see sections 101 and 102. category B biodiversity project report: see section 104. Chapter 5 body corporate has the same meaning as in the Corporations Act 2001. civil penalty order has the same meaning as in the Regulatory Powers Act. civil penalty provision has the same meaning as in the Regulatory Powers Act. Commonwealth Register account means a Register account kept in the name of the Commonwealth. corporation means: (a) a body corporate; or (b) a corporation sole. covers: a methodology determination covers a registered biodiversity project if the entry for the project in the Register states that the methodology determination covers the project. Crown land means land that is the property of: (a) the Commonwealth, a State or a Territory; or (b) a statutory authority of: (i) the Commonwealth; or (ii) a State; or (iii) a Territory. For this purpose, it is immaterial whether the land is: (c) subject to a lease or licence; or (d) covered by a reservation, proclamation, dedication, condition, permission or authority, made or conferred by the Commonwealth, the State or the Territory; or (e) covered by the making, amendment or repeal of legislation of the Commonwealth, the State or the Territory under which the whole or a part of the land is to be used for a public purpose or public purposes; or (f) held on trust for the benefit of another person; or (g) subject to native title. Crown lands Minister: (a) in relation to a State—means the Minister of the State who, under the rules, is taken to be the Crown lands Minister of the State; or (b) in relation to the Northern Territory—means the Minister of the Northern Territory who, under the rules, is taken to be the Crown lands Minister of the Northern Territory; or (c) in relation to the Australian Capital Territory—means the Minister of the Australian Capital Territory who, under the rules, is taken to be the Crown lands Minister of the Australian Capital Territory; or (d) in relation to a Territory other than the Northern Territory or the Australian Capital Territory—means the person who, under the rules, is taken to be the Crown lands Minister of the Territory. declared prohibited activity, in relation to a biodiversity maintenance area, means an activity specified under subsection 154(4) in relation to the biodiversity maintenance area. deposited with the Regulator, when used in relation to a biodiversity certificate, has the meaning given by section 142. director includes a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, a State or a Territory. electronic notice transmitted to the Regulator has the meaning given by section 9. eligible interest, in relation to an area of land, has the meaning given by section 89, 90 or 92. eligible person means any of the following: (a) an individual; (b) a body corporate; (c) a trust; (d) a corporation sole; (e) a body politic; (f) a local governing body. eligible voluntary action means: (a) making an application; or (b) giving information in connection with an application; or (c) withdrawing an application; or (d) giving a notice (including an electronic notice); or (e) making a submission; or (f) making a request; or (g) giving information in connection with a request; to the Regulator, where the application, information, notice, submission or request is permitted, but not required, to be made, given or withdrawn, as the case may be, under this Act. engage in conduct means: (a) do an act; or (b) omit to perform an act. environmental offsetting measure includes, but is not limited to, a measure to offset or compensate for the impacts of an action or project (however described) on the environment that is: (a) required as a condition of an approval, licence or permit (however described) under a law of the Commonwealth, a State or a Territory; or (b) directly financed from a fund into which money is paid as a condition of an environmental approval, licence or permit (however described) under a law of the Commonwealth, a State or a Territory; or (c) undertaken as required or agreed to under a penalty or enforceable undertaking imposed or accepted under a law of the Commonwealth, a State or a Territory. environmental offsetting purpose means the purpose of meeting an environmental offsetting requirement (however described) under a law of the Commonwealth, a State or a Territory including through an environmental offsetting measure. excluded biodiversity project: see section 33. exclusive possession native title area means a native title area, where the native title confers a right of exclusive possession over the area. executive officer of a corporation means: (a) a director of the corporation; or (b) the chief executive officer (however described) of the corporation; or (c) the chief financial officer (however described) of the corporation; or (d) the secretary of the corporation. Federal Court means the Federal Court of Australia. fit and proper person has a meaning affected by sections 97, 98, 99 and 99A. freehold land rights land means land, where: (a) a freehold estate exists over the land, and the grant of the freehold estate took place under a law of a State or a Territory that makes provision for the grant of such things only to, or for the benefit of, Aboriginal persons or Torres Strait Islanders; or (b) a freehold estate exists over the land, and the grant of the freehold estate took place under a law of the Commonwealth that makes provision for the grant of such things only to, or for the benefit of, Aboriginal persons or Torres Strait Islanders; or (c) the land is vested in a person, and the vesting took place under a law of the Commonwealth that makes provision for the vesting of land only in, or for the benefit of, Aboriginal persons or Torres Strait Islanders. holder of a biodiversity certificate means the person recorded in the Register as the holder of the certificate. indigenous land use agreement has the same meaning as in the Native Title Act 1993. inland waters means waters within Australia other than waters of the sea. inspector means a person appointed as an inspector under section 184. land rights land means land where: (a) a freehold estate exists, or a lease is in force, over the land, where the grant of the freehold estate or lease took place under legislation that makes provision for the grant of such things only to, or for the benefit of, Aboriginal persons or Torres Strait Islanders; or (b) the land is vested in a person, where the vesting took place under legislation that makes provision for the vesting of land only in, or for the benefit of, Aboriginal persons or Torres Strait Islanders; or (c) neither paragraph (a) nor (b) applies, and the land is held expressly for the benefit of, or is held in trust expressly for the benefit of, Aboriginal persons or Torres Strait Islanders; or (d) the land is reserved expressly for the benefit of Aboriginal persons or Torres Strait Islanders; or (e) the land is specified in the rules. This definition does not apply to the definition of Aboriginal land council or to section 92. Note: For specification by class, see subsection 13(3) of the Legislation Act 2003. lease, in relation to land rights land, includes: (a) a lease enforceable in equity; and (b) a contract that contains a statement to the effect that it is a lease; and (c) anything that, at or before the time of its creation, is, for any purpose, by a law of the Commonwealth, a State or a Territory, declared to be or described as a lease. maintained project, in relation to a biodiversity maintenance declaration: see paragraph 154(1)(a). methodology determination means a determination under subsection 45(1). National Native Title Register has the same meaning as in the Native Title Act 1993. native title has the same meaning as in the Native Title Act 1993. native title area: an area is a native title area if there is an entry on the National Native Title Register specifying that native title exists in relation to the area. natural disturbance, in relation to a registered biodiversity project, means any of the following events, where the event could not reasonably be prevented by the project proponent for the project: (a) flood; (b) bushfire; (c) drought; (d) pest attack; (e) disease; (f) an event specified in the rules. Nature Repair Committee means the committee established by section 194. Nature Repair Committee member means a member of the Nature Repair Committee, and includes the Chair of the Nature Repair Committee. non‑corporate government body means: (a) a body politic; or (b) a local governing body that is not a corporation. paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise). permanence period of a registered biodiversity project means the permanence period that: (a) is identified in the notice of approval of registration under paragraph 15(7)(d), subject to any variation under rules made for the purposes of paragraph 20(1)(d); and (b) complies with section 34. prescribed law, when used in a provision of this Act, means a law prescribed by the rules for the purposes of that provision. project includes a set of activities. project area, in relation to: (a) a biodiversity project; or (b) a registered project under a related scheme; means the area, or areas, on or in which the project has been, is being, or is to be carried out. project plan, in relation to a biodiversity project, means a plan that: (a) sets out how the project is intended to be carried out; and (b) sets out how the project is intended to achieve the biodiversity outcome for the project; and (c) is consistent with the methodology determination that covers, or is proposed to cover, the project; and (d) includes such information (if any) as is specified in the rules or the methodology determination that covers, or is proposed to cover, the project; and (e) complies with such requirements (if any) as are specified in the rules or the methodology determination that covers, or is proposed to cover, the project. project proponent, in relation to a registered biodiversity project, means: (a) the eligible person who is recorded in the Register as the project proponent for the project; or (b) each of the eligible persons who are recorded in the Register as a project proponent for the project. Note: For projects with multiple project proponents, see Part 3. protected audit information has the meaning given by section 125. Register means the Biodiversity Market Register kept by the Regulator under subsection 161(1). registered biodiversity project means a biodiversity project that is registered on the Register (other than a former registered biodiversity project in relation to which information is set out in the Register under rules made for the purposes of subsection 162(5)). registered greenhouse and energy auditor has the same meaning as in the National Greenhouse and Energy Reporting Act 2007. registered indigenous land use agreement means an indigenous land use agreement the details of which are entered on the Register of Indigenous Land Use Agreements. registered native title body corporate has the same meaning as in the Native Title Act 1993. registered project under a related scheme means a project that is: (a) declared as an eligible offsets project under the Carbon Credits (Carbon Farming Initiative) Act 2011; or (b) registered (however described) under a prescribed law of the Commonwealth, a State or a Territory. Register of Indigenous Land Use Agreements has the same meaning as in the Native Title Act 1993. Regulator means the Clean Energy Regulator. Note: The Clean Energy Regulator is established by the Clean Energy Regulator Act 2011. regulatory approval, in relation to a biodiversity project, means an approval, licence or permit (however described) that: (a) relates to the project or to an element of the project; and (b) is required under a law of the Commonwealth (other than this Act), a State or a Territory that relates to: (i) land use or development; or (ii) the environment; or (iii) water. Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014. relevant land registration official: (a) in relation to a biodiversity project that: (i) is or was a registered biodiversity project; and (ii) is wholly or partly situated in a State or Territory; means the Registrar of Titles or other proper officer of the State or Territory in which the project area is wholly or partly situated; or (b) in relation to an area that is or was a biodiversity maintenance area—means the Registrar of Titles or other proper officer of the State or Territory in which the area is wholly or partly situated. relinquishment equivalence requirements: see subsection 151(2). relinquishment notice means a notice given by the Regulator under any of the following provisions: (a) subsection 144(2) (false or misleading information); (b) subsection 146(2) (reversal of biodiversity outcome other than due to natural disturbance or conduct etc.); (c) subsection 147(2) (reversal of biodiversity outcome due to natural disturbance or conduct and no mitigation happens); (d) subsection 147A(2) (circumstances prescribed by the rules). reviewable decision has the meaning given by section 212. rules means rules made under section 237. Secretary means the Secretary of the Department. statutory authority of the Commonwealth, a State or a Territory, means an authority or body (including a corporation sole) established by or under a law of the Commonwealth, the State or the Territory (other than a general law allowing incorporation as a company or body corporate), but does not include: (a) an Aboriginal Land Trust established under the Aboriginal Land Rights (Northern Territory) Act 1976; or (b) the Wreck Bay Aboriginal Community Council established by the Aboriginal Land Grant (Jervis Bay Territory) Act 1986; or (c) a corporation registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006; or (d) an authority or body that is: (i) established by or under a law of the Commonwealth, a State or a Territory; and (ii) specified in the rules. this Act (except in sections 1, 2, 45 and 237) includes the following provisions: (a) the provisions of a legislative instrument made under this Act; (b) sections 134.1, 134.2, 135.1, 135.2, 135.4, 136.1, 137.1 and 137.2 of the Criminal Code, in so far as those sections relate to: (i) this Act; or (ii) a legislative instrument made under this Act. Torrens system land: land is Torrens system land if the title to the land is registered under a Torrens system of registration. Torres Strait Islander has the same meaning as in the Aboriginal and Torres Strait Islander Act 2005. type A permanence period: see section 34. type B permanence period: see section 34. type C permanence period: see section 34. vacancy, in relation to the office of a Nature Repair Committee member, has a meaning affected by section 8. 8 Vacancy in the office of a Nature Repair Committee member For the purposes of a reference in: (a) this Act to a vacancy in the office of a Nature Repair Committee member; or (b) the Acts Interpretation Act 1901 to a vacancy in the membership of a body; there are taken to be 4 offices of Nature Repair Committee member in addition to the Chair of the Committee. 9 Electronic notice transmitted to the Regulator (1) For the purposes of this Act, a notice is an electronic notice transmitted to the Regulator if, and only if: (a) the notice is transmitted to the Regulator by means of an electronic communication; and (b) if the Regulator requires that the notice be transmitted, in accordance with particular information technology requirements, by means of a particular kind of electronic communication—the Regulator's requirement has been met; and (c) the notice complies with rules made for the purposes of subsection (2). (2) The rules may make provision for or in relation to the security and authenticity of notices transmitted to the Regulator by means of an electronic communication. (3) Rules made for the purposes of subsection (2) may deal with: (a) encryption; and (b) authentication of identity. (4) Subsection (3) does not limit subsection (2). (5) This section does not, by implication, limit the regulations that may be made under the Electronic Transactions Act 1999. Part 2—Registered biodiversity projects Division 1—Introduction 10 Simplified outline of this Part The Regulator may, if certain criteria are satisfied, register a biodiversity project on application by an eligible person who is to be the project proponent, or one of the project proponents, of the project. Division 3 provides for the registration of a registered biodiversity project to be varied. Division 4 provides for the registration of a registered biodiversity project to be cancelled, either: (a) voluntarily, with different procedures applying depending on whether a biodiversity certificate has been issued; or (b) unilaterally by the Regulator, if the project or the project proponent does not satisfy certain conditions and requirements. Division 5 provides for the rules to prescribe certain kinds of biodiversity projects as excluded biodiversity projects, which may not be registered. Division 6 provides for the duration of a permanence period for a registered biodiversity project. Division 2—Registration of biodiversity project 11 Application for approval of registration of biodiversity project (1) An eligible person may apply to the Regulator for the Regulator to approve the registration of a biodiversity project on the Register. Note 1: The applicant will be registered as the project proponent, or one of the project proponents, for the project. Note 2: The Regulator has a function of providing advice and assistance in relation to the making of applications: see section 219. (2) However, applications under subsection (1) may be made only on or after a day determined by the Minister by legislative instrument. 12 Form of application (1) An application must: (a) be in writing; and (b) be in a form approved, in writing, by the Regulator. (2) An application must: (a) specify the proposed project area; and (b) if the project is to have more than one project proponent—specify the eligible persons who are proposed to be the project proponents along with the applicant; and (c) specify the methodology determination (the applicable methodology determination) that is proposed to cover the project; and (d) specify the proposed activity period (if any), which must be worked out in accordance with the applicable methodology determination; and (e) specify the proposed permanence period, which, subject to subsection 34(2), must be: (i) a type A permanence period; or (ii) a type B permanence period; or (iii) a type C permanence period; and (f) include such other information as is specified in the rules; and (g) include such other information as is specified in the applicable methodology determination. (3) An application must be accompanied by: (a) if the rules or the applicable methodology determination provides that this paragraph applies to the proposed project—an audit report that is: (i) prescribed by the rules or the applicable methodology determination (as the case requires); and (ii) prepared by a registered greenhouse and energy auditor who has been appointed as an audit team leader for the purpose; and (b) if there are to be project proponents other than the applicant—evidence that each other project proponent consents to being a project proponent for the project; and (c) if a registered indigenous land use agreement is relevant to the Regulator's decision on the application—a copy of relevant parts of the agreement; and (d) if the applicable methodology determination provides that there must be a project plan for a project covered by the methodology determination—a project plan for the project; and (e) such other documents (if any) as are specified in the rules; and (f) such other documents (if any) as are specified in the applicable methodology determination; and (g) the fee (if any) specified in the rules. (4) The approved form of application may provide for verification by statutory declaration of statements in applications. (5) A fee specified under paragraph (3)(g) must not be such as to amount to taxation. Registered native title body corporate (6) If: (a) the applicant is a native title holder for an exclusive possession native title area; and (b) the proposed project area consists of, or includes, the exclusive possession native title area; and (c) there is a registered native title body corporate for the exclusive possession native title area; and (d) the applicant is not the registered native title body corporate; the application must specify the registered native title body corporate as an eligible person who is proposed to be a project proponent along with the applicant. (7) However, subsection (6) does not apply if the registered native title body corporate declares, by written notice given to the applicant, that the registered native title body corporate does not consent to being specified as a project proponent along with the applicant. (8) Subsection (6) does not prevent a person (other than the registered native title body corporate) from being specified as an eligible person who is proposed to be a project proponent along with the applicant. 13 Further information (1) The Regulator may, by written notice given to an applicant, require the applicant to give the Regulator, within the period specified in the notice, further information in connection with the application. (2) If the applicant breaches the requirement, the Regulator may, by written notice given to the applicant: (a) refuse to consider the application; or (b) refuse to take any action, or any further action, in relation to the application. 14 Withdrawal of application (1) An applicant may withdraw the application at any time before the Regulator makes a decision on the application. (2) If the applicant does so, this Act does not prevent the applicant from making a fresh application. (3) If: (a) the applicant withdraws the application; and (b) the applicant has paid a fee in relation to the application; the Regulator must, on behalf of the Commonwealth, refund the application fee. 15 Approval of registration of biodiversity project Scope (1) This section applies if an application under section 11 has been made for the Regulator to approve the registration of a biodiversity project. Approval (2) After considering the application, the Regulator may decide to: (a) approve the registration of the biodiversity project, and register the project on the Register; or (b) refuse to approve the registration of the biodiversity project. Note: For review of decisions, see Part 20. (3) The Regulator must give written notice of a decision under subsection (2) to: (a) the applicant; and (b) if: (i) the decision is a decision to approve the registration of the biodiversity project; and (ii) there is a relevant land registration official in relation to the biodiversity project; the relevant land registration official. Criteria for approval (4) The Regulator must not approve the registration of the biodiversity project unless the Regulator is satisfied that: (a) the project is being, or is to be, carried on in Australia; and (b) the project is of a kind specified, for the purposes of paragraph 45(1)(a), in the methodology determination (the applicable methodology determination) that is specified in the application under paragraph 12(2)(c); and (c) the activity period (if any) for the project has been worked out in accordance with the applicable methodology determination; and (d) the permanence period for the project complies with section 34; and (e) the project meets any conditions set out in the applicable methodology determination under paragraph 45(1)(b); and (f) if the applicable methodology determination requires that there must be a project plan for the project: (i) there is a project plan for the project; and (ii) implementation of the project plan is likely to result in a biodiversity certificate being issued in respect of the project; and (g) if the applicable methodology determination does not require that there must be a project plan for the project—carrying out the project is likely to result in a biodiversity certificate being issued in respect of the project; and (h) the applicant is to be registered as the project proponent, or one of the project proponents, for the project; and (i) the proposed project proponent, or each of the proposed project proponents, is an eligible person; and (j) the proposed project proponent, or each of the proposed project proponents, is a fit and proper person; and (k) the project area meets the requirements set out in subsection (5); and (l) the project area does not consist of, or include, a biodiversity maintenance area or part of a biodiversity maintenance area; and (m) the requirements set out in subsection (6) have been met in relation to the project; and (n) the project meets the eligibility requirements (if any) specified in the rules; and (o) the project is not an excluded biodiversity project. Note 1: Methodology determinations are made under section 45. Note 2: For excluded biodiversity project, see section 33. Note 3: For fit and proper person, see sections 97, 98, 99 and 99A. (5) The requirements mentioned in paragraph (4)(k) are: (a) the project area is, or is a combination of: (i) Torrens system land; or (ii) Crown land; or (iii) Australian waters; and (b) the project area is not specified in the rules. (6) The requirements mentioned in paragraph (4)(m) are: (a) if the project area consists of, or includes, Torrens system land: (i) the proposed project proponent, or a proposed project proponent, holds an estate in fee simple in the Torrens system land that is covered by subsection 89(2); or (ii) the proposed project proponent, or a proposed project proponent, holds a legal estate or interest (other than an estate in fee simple) in the Torrens system land that is covered by subsection 89(2) and that is prescribed by the rules; or (iii) the proposed project proponent, or a proposed project proponent, holds a lease of the Torrens system land and the terms of the lease are consistent with the project being carried out on the land; or (iv) a person who holds an estate in fee simple in the Torrens system land that is covered by subsection 89(2) has consented to the carrying out of the project on the land as a registered biodiversity project by the proposed project proponent or proposed project proponents; or (v) a person who holds a legal estate or interest (other than an estate in fee simple) in the Torrens system land that is covered by subsection 89(2) and that is prescribed by the rules has consented to the carrying out of the project on the land as a registered biodiversity project by the proposed project proponent or proposed project proponents; and (b) if: (i) the project area is, or includes, a native title area; and (ii) there is a registered native title body corporate for the native title area; then: (iii) the proposed project proponent, or a proposed project proponent, is the registered native title body corporate; or (iv) the registered native title body corporate has consented to the carrying out of the project on or in the native title area as a registered biodiversity project by the proposed project proponent or proposed project proponents; or (v) the registered native title body corporate has consented to the registration of the project. Matters to be included in notice (7) If the Regulator approves the registration of the biodiversity project, the notice must: (a) set out, in accordance with the rules, the project area; and (b) set out the project proponent or project proponents for the project; and (c) set out the applicable methodology determination; and (d) set out the activity period (if any) and the permanence period for the project; and (e) if the registration is subject to a condition under section 17, 18 or 18A—set out the condition; and (f) set out such attributes of the project as are specified in the rules; and (g) set out such other matters (if any) as are specified in the rules. Timing (8) The Regulator must take all reasonable steps to ensure that a decision is made on the application: (a) if the Regulator requires the applicant to give further information under subsection 13(1) in relation to the application—within 90 days after the applicant gave the Regulator the information; or (b) otherwise—within 90 days after the application was made. When approval takes effect (9) If the Regulator approves the registration of the biodiversity project, the approval takes effect on the day after the notice of approval is given to the applicant. 16 Suspension of processing of applications for registrations of biodiversity projects Order (1) The Minister may, by legislative instrument, order that, if: (a) an application is made under section 11 during a specified period; and (b) the application relates to a biodiversity project that is proposed to be covered by a methodology determination specified in the order; the Regulator must not: (c) consider the application during that period; or (d) make a decision on the application during that period. (2) A period specified in an order under subsection (1): (a) must start at the commencement of the order; and (b) must not be longer than 12 months. (3) The Minister may make an order under subsection (1) that relates to a particular methodology determination only if the Nature Repair Committee has advised the Minister that the Committee is satisfied that there is reasonable evidence that the methodology determination does not comply with one or more of the biodiversity integrity standards. (4) The Nature Repair Committee may give the Minister advice for the purposes of subsection (3): (a) on the Committee's own initiative; or (b) on request by the Minister. (5) If the Nature Repair Committee gives the Minister advice for the purposes of subsection (3), the Department must publish the advice on the Department's website (whether or not the Minister follows the advice). (6) To avoid doubt, Subdivisions D (advice about making, varying or revoking methodology determinations) and E (consultation by the Nature Repair Committee) of Division 2 of Part 4 do not apply to advice given by the Committee under subsection (4) of this section. Compliance with order (7) The Regulator must comply with an order under subsection (1). Timing of decision on application (8) If an application made under section 11 is or was covered by an order under subsection (1) of this section, subsection 15(8) (timing of decision on application) does not apply to the application. 17 Registration may be subject to condition about obtaining regulatory approvals Scope (1) This section applies if: (a) an application under section 11 has been made for the Regulator to approve the registration of a biodiversity project; and (b) the Regulator decides to approve the registration of the biodiversity project under section 15; and (c) the Regulator is not satisfied that all regulatory approvals have been obtained for the project. Condition (2) The Regulator must set out in the notice under subsection 15(3) that the registration is subject to the condition that a biodiversity certificate is not to be issued in respect of the project until all regulatory approvals are obtained for the project. 18 Registration may be subject to condition about obtaining consents from eligible interest holders Scope (1) This section applies if: (a) an application under section 11 has been made for the Regulator to approve the registration of a biodiversity project; and (b) the Regulator decides under section 15 to approve the registration of the biodiversity project; and (c) the Regulator is satisfied that there are one or more persons (the relevant interest‑holders) who: (i) hold an eligible interest in the project area, or any part of the project area, for the project; and (ii) have not consented, in writing, to the making of the application. Condition (2) The Regulator must set out in the notice under subsection 15(3) that the registration is subject to the condition that a biodiversity certificate is not to be issued in respect of the project until the written consent of each relevant interest‑holder to the registration is obtained. Consents (3) A consent mentioned in subparagraph (1)(c)(ii) or subsection (2) must be in a form approved, in writing, by the Regulator. (4) A consent mentioned in subparagraph (1)(c)(ii) or subsection (2) may be set out in a registered indigenous land use agreement. (5) Subsection (3) does not apply to a consent mentioned in subparagraph (1)(c)(ii) or subsection (2) if the consent is set out in a registered indigenous land use agreement. 18A Registration may be subject to condition about obtaining consent from registered native title body corporate Scope (1) This section applies if: (a) an application under section 11 has been made for the Regulator to approve the registration of a biodiversity project; and (b) the Regulator decides under section 15 to approve the registration of the biodiversity project; and (c) the Regulator is satisfied that: (i) the project area for the biodiversity project is or includes a native title area; and (ii) there is a registered native title body corporate for the native title area; and (iii) the registered native title body corporate has consented to the registration of the biodiversity project; and (iv) the registered native title body corporate has not consented, in writing, to the carrying out of the project on or in the native title area as a registered biodiversity project by the project proponent. Condition (2) The Regulator must set out in the notice under subsection 15(3) that the registration is subject to the condition that a biodiversity certificate is not to be issued in respect of the project until the written consent of the registered native title body corporate is obtained to the carrying out of the project on or in the native title a