Commonwealth Coat of Arms of Australia

Nature Repair (Consequential Amendments) Act 2023

No. 122, 2023

An Act to deal with consequential matters arising from the enactment of the Nature Repair Act 2023, and for other purposes

[Assented to 14 December 2023]

The Parliament of Australia enacts:

1 Short title

This Act is the Nature Repair (Consequential Amendments) 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. Sections 1 to 3 and anything in this Act not elsewhere covered by this table	The day this Act receives the Royal Assent.	14 December 2023
2. Schedule 1	The later of: (a) the start of the day after this Act receives the Royal Assent; and (b) the commencement of t he Nature Repair Act 2023. However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.	15 December 2023
3. Schedule 2	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Note: This table relates only to the provisions of this Act as originally enacted.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 Schedules

Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendments

Clean Energy Regulator Act 2011

1 Section 3

Omit:

• The Regulator has such functions as are conferred on it by or under:

(a) the Carbon Credits (Carbon Farming Initiative) Act 2011; and

(b) the National Greenhouse and Energy Reporting Act 2007; and

(d) the Australian National Registry of Emissions Units Act 2011.

substitute:

• The Regulator has such functions as are conferred on it by or under:

(a) the Carbon Credits (Carbon Farming Initiative) Act 2011; and

(b) the Nature Repair Act 2023; and

(d) the Renewable Energy (Electricity) Act 2000; and

(e) the Australian National Registry of Emissions Units Act 2011.

2 Section 4

Insert:

biodiversity has the same meaning as in the Nature Repair Act 2023.

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 Department means the Department administered by the Biodiversity Minister.

biodiversity law means:

(a) the Nature Repair Act 2023 or a legislative instrument under that Act; or

(b) the Regulatory Powers (Standard Provisions) Act 2014 as applied by the Nature Repair Act 2023.

Biodiversity Minister means the Minister who administers the Nature Repair Act 2023.

biodiversity project has the same meaning as in the Nature Repair Act 2023.

international biodiversity agreement means:

(a) the Biodiversity Convention; or

(b) any other international agreement, signed on behalf of Australia, that:

(i) relates to biodiversity; and

(ii) imposes obligations on Australia to take action to enhance or protect biodiversity; or

(i) relates to biodiversity; and

(ii) is specified in a legislative instrument made by the Biodiversity Minister for the purposes of this definition.

international biodiversity body means:

(a) a body established under an international biodiversity agreement; or

(b) a body established by a body mentioned in paragraph (a).

3 Section 4 (definition of methodology determination)

Repeal the definition.

4 Section 4 (definition of objectives of the Regulator)

Repeal the definition.

5 Paragraph 12(a)

After “climate change law”, insert “or a biodiversity law”.

6 At the end of subsection 18(2)

Add:

; (m) agriculture;

(n) biological or ecological science.

7 After paragraph 35(1)(e)

Insert:

; or (f) a person who is:

(i) a person assisting the Regulator under section 37; and

(ii) an SES employee or acting SES employee in the Biodiversity Department; or

(g) a person who is:

(i) a person assisting the Regulator under section 37; and

(ii) an APS employee who holds or performs the duties of an Executive Level 2 position, or an equivalent position, in the Biodiversity Department.

8 At the end of subsection 41(3)

Add:

; or (e) the Nature Repair Act 2023.

9 At the end of section 41

Add:

(5) If the Minister is not the Biodiversity Minister, then, before giving a direction to the Regulator under subsection (1) in relation to the performance of its functions, or the exercise of its powers, under a biodiversity law, the Minister must consult the Biodiversity Minister.

10 Subsection 43(3)

After “climate change law”, insert “or a biodiversity law”.

11 Section 44 (heading)

After “climate change law”, insert “or a biodiversity law”.

12 Paragraphs 44(a) and (b)

After “climate change law”, insert “or a biodiversity law”.

13 After subsection 45(2)

Insert:

(2A) If protected information:

(a) was obtained under a biodiversity law; or

(b) is covered by section 222 of the Nature Repair Act 2023;

an official of the Regulator may disclose that information to the Biodiversity Minister.

14 Subsection 45(3)

Omit “or (2)”, substitute “, (2) or (2A)”.

15 At the end of section 46

Add:

(3) An official of the Regulator may disclose protected information to:

(a) the Secretary of the Biodiversity Department; or

(b) an officer of the Biodiversity Department who is authorised by the Secretary of the Biodiversity Department, in writing, for the purposes of this subsection;

if the disclosure is for the purposes of:

(d) monitoring the operation of a biodiversity law; or

(e) evaluating the effectiveness of a biodiversity law; or

(f) facilitating the monitoring of Australia’s compliance with its international obligations under an international biodiversity agreement; or

(g) facilitating the development of an international agreement that relates to biodiversity.

16 Section 47 (at the end of the heading)

Add “under the Carbon Credits (Carbon Farming Initiative) Act 2011”.

17 Paragraph 47(1)(d)

After “methodology determinations”, insert “under that Act”.

18 After section 47

Insert:

47A Disclosure or use for purposes of development of methodology determinations under the Nature Repair Act 2023

(1) The Regulator may disclose or use protected information that relates to a particular biodiversity project if:

(a) under section 15 of the Nature Repair Act 2023, the Regulator has approved the registration of the biodiversity project; and

(b) more than 7 years have passed since the application under section 11 of that Act was made for the approval; and

(i) contained in the application; or

(ii) given in connection with the application; or

(iii) contained in a biodiversity project report; and

(d) the disclosure or use is for the purposes of facilitating the development of one or more methodology determinations under that Act.

(2) Subsection (1) does not apply to personal information (within the meaning of the Privacy Act 1988).

19 After paragraph 49(1)(n)

Insert:

(na) the Director of National Parks;

(nb) the Regional Investment Corporation;

20 After paragraph 49(1)(x)

Insert:

(xa) a prescribed international biodiversity body;

21 Section 56A

Omit “or (2)(e)”, substitute “, (2)(e) or (3)(b)”.

National Greenhouse and Energy Reporting Act 2007

22 Section 7

Insert:

biodiversity audit has the same meaning as in the Nature Repair Act 2023.

biodiversity audit report has the same meaning as in the Nature Repair Act 2023.

23 At the end of subsection 75(1)

Add:

; and (g) preparing for and carrying out biodiversity audits; and

(h) preparing biodiversity audit reports.

24 Subsection 75A(1)

After “this Act”, insert “, the Nature Repair Act 2023”.

25 After paragraph 75A(5)(h)

Insert:

(ha) inspection of the performance of registered greenhouse and energy auditors in carrying out biodiversity audits;

Schedule 2—Protecting water resources from additional kinds of unconventional gas developments

Part 1—Amendments

Environment Protection and Biodiversity Conservation Act 1999

1 Subdivision FB of Division 1 of Part 3 (heading)

Omit “coal seam gas development”, substitute “unconventional gas development”.

2 Subparagraphs 24D(1)(a)(i), (2)(a)(i) and (3)(a)(i)

Repeal the subparagraphs, substitute:

(i) unconventional gas development; or

3 Subparagraphs 24E(1)(a)(i), (2)(a)(i) and (3)(a)(i)

Repeal the subparagraphs, substitute:

(i) unconventional gas development; or

4 Subsection 130(4A)

Omit “Coal Seam Gas”, substitute “Unconventional Gas Development”.

5 Section 131AB (heading)

Omit “Coal Seam Gas”, substitute “Unconventional Gas Development”.

6 Subparagraph 131AB(1)(a)(i)

Repeal the subparagraph, substitute:

(i) unconventional gas development; or

7 Subsection 131AB(2)

Omit “Coal Seam Gas”, substitute “Unconventional Gas Development”.

8 Paragraph 136(2)(fa)

Omit “Coal Seam Gas”, substitute “Unconventional Gas Development”.

9 Subparagraph 304(1)(a)(viia)

Omit “coal seam gas development”, substitute “unconventional gas development”.

10 Paragraph 305(1)(ga)

Omit “coal seam gas development”, substitute “unconventional gas development”.

11 Subparagraphs 305(1A)(b)(via) and (c)(viia)

Omit “coal seam gas development”, substitute “unconventional gas development”.

12 Paragraph 305(2)(ea)

Omit “coal seam gas development”, substitute “unconventional gas development”.

13 Subparagraphs 306(1)(a)(viia) and (b)(viia) and (2)(a)(viia) and (b)(viia)

Omit “coal seam gas development”, substitute “unconventional gas development”.

14 Division 2B of Part 19 (heading)

Omit “Coal Seam Gas”, substitute “Unconventional Gas Development”.

15 Subsection 505C(1)

Repeal the subsection, substitute:

(1) The committee established by this section as previously in force is continued in existence with the new name of the Independent Expert Scientific Committee on Unconventional Gas Development and Large Coal Mining Development.

Note: See also section 25B of the Acts Interpretation Act 1901.

16 Paragraphs 505D(1)(a) and (b)

Omit “coal seam gas developments”, substitute “unconventional gas developments”.

17 Subparagraphs 505D(1)(c)(i) and (d)(i) and (ii)

Omit “coal seam gas”, substitute “unconventional gas”.

18 Paragraphs 505D(1)(e), (f) and (g)

Omit “coal seam gas”, substitute “unconventional gas”.

19 Paragraph 506(d)

Omit “Coal Seam Gas”, substitute “Unconventional Gas Development”.

20 Section 528 (definition of bioregional assessment)

Omit “coal seam gas development”, substitute “unconventional gas development”.

21 Section 528 (definition of coal seam gas development)

Repeal the definition.

22 Section 528 (definition of Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development)

Repeal the definition.

23 Section 528

Insert:

Independent Expert Scientific Committee on Unconventional Gas Development and Large Coal Mining Development means the Committee established by section 505C.

unconventional gas development means any activity involving unconventional gas production that has, or is likely to have, a significant impact on water resources (including any impacts of associated salt production and/or salinity):

(a) in its own right; or

(b) when considered with other developments, whether past, present or reasonably foreseeable developments.

unconventional gas production means extraction, recovery, or intentional release, (whether by drilling, hydraulic fracturing or other means) of gas from:

(a) coal seams or beds; or

(b) layers of shale rock; or

(d) any other sources prescribed by the regulations.

Part 2—Application and transitional provisions

24 Definitions

In this Part:

commencement day means the day this Schedule commences.

main Act means the Environment Protection and Biodiversity Conservation Act 1999.

transitional period means the period of 90 business days (measured in Canberra), beginning on the first such business day that is on or after the commencement day.

25 Amendments apply to actions taken after commencement

(1) The amendments made by Part 1 of this Schedule apply in relation to an action involving unconventional gas development that is taken on or after the commencement day, even if the action began before that time, unless item 26, 27 or 28 of this Schedule applies in relation to the action.

(2) If:

(a) a proposal by a person to take the action was referred to the Minister under Division 1 of Part 7 of the main Act before the commencement day; and

(b) immediately before the commencement day, the Minister has not decided whether the action is a controlled action; and

the validity of the notice is not affected by the amendments and the Minister is not required to give another notice under that section.

(3) However, if, after the commencement day, the Minister receives comments in response to the invitation in the notice (and within the period specified in the notice) that relate to whether the action is a controlled action for the purposes of a provision of section 24D or 24E of the main Act as amended by Part 1 of this Schedule, the Minister’s duty under subsection 75(1A) of the main Act to consider comments includes a duty to consider any such comments.

26 Amendments do not apply—certain referred proposals

(1) The amendments made by Part 1 of this Schedule do not apply in relation to an action taken on or after the commencement day if, immediately before the commencement day:

(a) an approval of the taking of the action is in operation under Part 9 of the main Act; or

(b) both:

(i) a decision that the action is not a controlled action is in operation under section 75 of the main Act; and

(ii) the decision was not made because the Minister believed the action would be taken in a particular manner.

(2) The amendments made by Part 1 of this Schedule do not apply in relation to an action taken on or after the commencement day if:

(a) immediately before that day, a decision that the action is not a controlled action is in operation under section 75 of the main Act; and

(b) the decision was made because the Minister believed the action would be taken in a particular manner; and

(3) The amendments made by Part 1 of this Schedule do not apply in relation to an action taken on or after the commencement day if:

(a) a proposal by a person to take the action was referred to the Minister under Division 1 of Part 7 of the main Act before the commencement day; and

(b) immediately before the commencement day, all of the following circumstances exist:

(i) the Minister has not decided whether or not to approve the taking of the action for the purposes of any controlling provisions;

(ii) the person has been informed under section 131AA of the main Act of the decision the Minister proposes to make in relation to the action;

(iii) if section 131AB of the main Act applies—the Minister has obtained advice from the Independent Scientific Committee on Coal Seam Gas and Large Coal Mining Development in accordance with subsection 131AB(2) of the main Act.

27 Amendments do not apply—development currently in production

(1) The amendments made by Part 1 of this Schedule do not apply in relation to an action involving unconventional gas development taken on or after the commencement day if:

(a) the unconventional gas development does not involve the extraction of coal seam gas; and

(b) the unconventional gas development was in production (within the meaning of subitem (2)) before the commencement day; and

(i) the action was authorised by a petroleum production authorisation (within the meaning of subitem (3)); and

(ii) the action was not contravening a provision of Part 3 of the main Act; and

(d) the action continues to be authorised by the petroleum production authorisation.

(2) For the purposes of this item, a development is in production if the development is extracting or producing gas:

(a) commercially; and

(b) in accordance with the laws of the Commonwealth and of any State or Territory that apply in relation to the development.

(3) For the purposes of this item, a petroleum production authorisation is a licence, permit, or other authority granted under a law of the Commonwealth or a State or Territory, that authorises the extraction of petroleum for commercial production. However, it does not include a lease or licence that is primarily for the purpose of reservation, retention or exploration.

28 Amendments do not apply—development that has ceased operation

The amendments made by Part 1 of this Schedule do not apply in relation to an action involving unconventional gas development taken on or after the commencement day if:

(a) the unconventional gas development does not involve the extraction of coal seam gas; and

(b) immediately before the commencement day, the action was not contravening a provision of Part 3 of the main Act; and

(i) extraction and production of gas by the development had permanently ceased;

(ii) post‑production had permanently ceased.

29 Minister to decide whether amended provisions are controlling provisions for certain controlled actions

(1) This item applies in relation to an action if:

(a) a proposal by a person to take the action was referred to the Minister under Division 1 of Part 7 of the main Act before the commencement day; and

(b) the action involves unconventional gas development; and

(d) before the commencement day, the Minister decided under section 75 of the main Act that the action is a controlled action; and

(e) immediately before the commencement day, the Minister has not decided whether or not to approve the taking of action under Part 9 of the main Act.

(2) The Minister must, before the end of the transitional period, decide in accordance with this item whether any provisions of section 24D or 24E of the main Act as amended by Part 1 of this Schedule are controlling provisions for the action.

(3) Before making the decision, the Minister must give the person proposing to take the action a written notice:

(a) setting out the decision the Minister proposes to make; and

(b) inviting the person to give the Minister written comments on the proposed decision within 10 business days (measured in Canberra) of the day the notice is given to the person.

(4) Before making the decision, the Minister (the Environment Minister) may:

(a) notify any other Minister whom the Environment Minister considers has administrative responsibilities relating to the proposed decision; and

(b) invite the relevant Minister to give the Environment Minister written comments on the proposed decision, within 10 business days (measured in Canberra).

(5) If the Minister believes on reasonable grounds that the Minister does not have enough information to make a decision under subitem (2), the Minister may request the person proposing to take the action to provide specified information relevant to making the decision.

(6) If the Minister requests further information under subitem (5), the period within which the Minister is required to make a decision under subitem (2) is extended by the number of business days in the period:

(a) starting on the day the Minister requests the information; and

(b) ending on the day the Minister receives the last of the information requested.

(7) In making a decision under subitem (2), the Minister must consider:

(a) any comments received within the period specified in an invitation given under paragraph (3)(b) or (4)(b); and

(b) any further information provided in response to a request made under subitem (5); and

(c) any information included in the referral of the proposal to take the action relating to whether the action is a controlled action; and

(d) any other information, or any comments, relating to whether the action is a controlled action received (whether before or after the commencement day) in response to an invitation made before the commencement day under section 74 of the main Act.

(8) Subsections 75(2), (2A) and (2B) of the main Act apply in relation to the Minister’s decision under this item:

(a) as if it were a decision under that section; and

(b) as if references to matters protected by provisions of Part 3 were references to matters protected by provisions of sections 24D and 24E of the main Act as amended by Part 1 of this Schedule.

(9) Within 10 business days after making a decision under subitem (2), the Minister must:

(a) give written notice of the decision to the person proposing to take the action; and

(b) publish notice of the decision in accordance with any regulations made for the purposes of paragraph 77(1)(b) of the main Act.

(10) The Minister must give reasons for the decision to the person proposing to take the action if the person makes a written request, within 28 days of being given the notice, that the Minister do so. The Minister must do so as soon as practicable, and in any case, within 28 days of receiving the request.

(11) The main Act has effect, after the Minister makes a decision under subitem (2) (the new controlling provisions decision), as if the decision mentioned in paragraph (1)(d) (the original controlling provisions decision) were varied to give effect to the new controlling provisions decision.

(12) The validity of the original controlling provisions decision, and any other decision made under Part 7, 8 or 9 of the main Act before the Minister made the new controlling provisions decision:

(a) is not affected by the making of the new controlling provisions decision; and

(b) cannot be revoked, varied, suspended, challenged, reviewed, set aside or called in question because of, or for reasons relating to:

(i) the making of the new controlling provisions decision; or

(ii) the variation of the original controlling provisions decision as described in subitem (11).

(13) Anything done by the Minister under this item is not invalid merely because it was not done within the period required by this item. However, this does not reduce or remove an obligation under this item to do a thing within a particular period.

30 Minister to consider whether assessment approach should be changed

(1) This item applies in relation to an action if:

(a) the Minister has decided under subitem 29(2) that provisions of sections 24D and 24E of the main Act as amended by Part 1 of this Schedule are controlling provisions for the action (the new controlling provisions decision); and

(b) before the commencement day, the Minister had made a decision under section 87 of the main Act as to the approach to be used for assessment of the relevant impacts of the action.

(2) The Minister may, before the end of the period within which the Minister is required to make the new controlling provisions decision, decide whether, as a result of the new controlling provisions decision, a different approach should be used for assessment of the relevant impacts of the action.

(3) If the Minister believes on reasonable grounds that the Minister does not have enough information to make a decision under subitem (2), the Minister may request the person proposing to take the action to provide specified information relevant to making the decision.

(4) If the Minister requests further information under subitem (3), the period within which the Minister is required to make a decision under subitem (2) is extended by the number of business days in the period:

(a) starting on the day the Minister requests the information; and

(b) ending on the day the Minister receives the last of the information requested.

(5) In making a decision under subitem (2), the Minister must consider:

(a) any further information provided in response to a request made under subitem (3); and

(b) any comments or information received or provided as mentioned in paragraph 29(7)(a) and (b) relating to the approach to be used for assessment of the relevant impacts of the action; and

(c) any information included in the referral of the proposal to take the action relating to the approach to be used for assessment of the relevant impacts of the action; and

(d) any other information, or any comments, relating to the approach to be used for assessment of the relevant impacts of the action received (whether before or after the commencement day) in response to an invitation made before the commencement day under section 74 of the main Act.

(6) Subsections 82(1) and (4) of the main Act apply in relation to the Minister’s decision under subitem (2), as if references in those provisions to controlling provisions were references to provisions of sections 24D and 24E of the main Act as amended by Part 1 of this Schedule.

(7) Within 10 business days after making a decision under subitem (2), the Minister must:

(a) give written notice of the decision to the person proposing to take the action; and

(b) publish notice of the decision in accordance with any regulations made for the purposes of paragraph 91(1)(b) of the main Act.

(8) The Minister must give reasons for the decision to the person proposing to take the action if the person makes a written request, within 28 days of being given the notice, that the Minister do so. The Minister must do so as soon as practicable, and in any case, within 28 days of receiving the request.

(9) The main Act has effect, after the Minister makes a decision under subitem (2) (the new assessment approach decision), as if the decision mentioned in paragraph (1)(b) (the original assessment approach decision) were varied to give effect to the new assessment approach decision.

(10) The validity of the original assessment approach decision, and any other decision made under Part 7, 8 or 9 of the main Act before the Minister made the new assessment approach decision:

(a) is not affected by the making of the new assessment approach decision; and

(b) cannot be revoked, varied, suspended, challenged, reviewed, set aside or called in question because of, or for reasons relating to:

(i) the making of the new assessment approach decision; or

(ii) the variation of the original assessment approach decision as described in subitem (9).

(11) Anything done by the Minister under this item is not invalid merely because it was not done within the period required by this item. However, this does not reduce or remove an obligation under this item to do a thing within a particular period.

31 Transitional rules

(1) The Minister may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by Part 1 of this Schedule.

(2) Rules made before the end of the period of 6 months starting on the commencement day may provide that provisions of this Part have effect with any modifications prescribed by the rules. The provisions then have effect as if they were so modified.

(3) To avoid doubt, the rules may not do the following:

(a) create an offence or civil penalty;

(b) provide powers of:

(i) arrest or detention; or

(ii) entry, search or seizure;

(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Schedule or the main Act;

(e) directly amend the text of this Schedule or the main Act.

(4) This Schedule (other than subitem (3)) does not limit the rules that may be made under this item.