2019‑2020‑2021‑2022

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

Agriculture Biodiversity Stewardship Market Bill 2022

 

No.      , 2022

 

(Agriculture, Water and the Environment)

 

 

 

A Bill for an Act to establish a national voluntary framework for projects to enhance or protect biodiversity, and for other purposes

  

  

  

Contents

Part 1—Preliminary                                                                                                             1

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 2

3............ Objects of this Act.............................................................................. 2

4............ Simplified outline of this Act.............................................................. 2

5............ Crown to be bound............................................................................. 4

6............ Extension to external Territories.......................................................... 4

7............ Definitions.......................................................................................... 4

8............ Meaning of eligible land................................................................... 14

9............ Vacancy in the office of an Agriculture Biodiversity Stewardship Market Advisory Committee member               14

10.......... Electronic notice transmitted to the Regulator.................................... 14

Part 2—Registered biodiversity projects                                                               16

Division 1—Introduction                                                                                          16

11.......... Simplified outline of this Part............................................................ 16

Division 2—Registration of biodiversity project                                         17

12.......... Application for approval of registration of biodiversity project......... 17

13.......... Form of application........................................................................... 17

14.......... Further information........................................................................... 18

15.......... Withdrawal of application................................................................. 18

16.......... Approval of registration of biodiversity project................................ 19

17.......... Suspension of processing of applications for registrations of biodiversity projects 21

18.......... Registration may be subject to condition about obtaining regulatory approvals        23

19.......... Registration may be subject to condition about obtaining consents from eligible interest holders            23

Division 3—Variation of registration                                                                25

20.......... Voluntary variation of registration of biodiversity project—change in identity of project proponent       25

21.......... Voluntary variation of registration of biodiversity project—changes in project area etc.          26

22.......... Voluntary variation of conditional registration of biodiversity project—condition of registration has been met       27

23.......... Procedures for voluntary variation of registration of biodiversity project 27

Division 4—Cancellation of registration of biodiversity project        30

Subdivision A—Voluntary cancellation of registration of biodiversity project            30

24.......... Voluntary cancellation of registration of biodiversity project—certificate in effect   30

25.......... Voluntary cancellation of registration of biodiversity project—no certificate in effect              31

26.......... Procedures for voluntary cancellation of registration of biodiversity project            31

Subdivision B—Unilateral cancellation of registration of biodiversity project            33

27.......... Unilateral cancellation of registration of biodiversity project—condition of registration has not been met               33

28.......... Unilateral cancellation of registration of biodiversity project—project not commenced, or unlikely to result in issuing of biodiversity certificate....................................................................... 34

29.......... Unilateral cancellation of registration of biodiversity project—eligibility requirements not met etc.         34

30.......... Unilateral cancellation of registration of biodiversity project—project proponent ceases to pass the fit and proper person test..................................................................................................... 35

31.......... Unilateral cancellation of registration of biodiversity project—project proponent ceases to exist etc.       35

32.......... Unilateral cancellation of registration of biodiversity project—false or misleading information               36

33.......... Notice of unilateral cancellation of registration of biodiversity project 37

Division 5—Excluded biodiversity projects                                                    38

34.......... Excluded biodiversity projects.......................................................... 38

Part 3—Multiple project proponents                                                                       39

Division 1—Introduction                                                                                          39

35.......... Simplified outline of this Part............................................................ 39

Division 2—References to project proponents                                             40

36.......... References to project proponents...................................................... 40

Division 3—Nominee of multiple project proponents                                41

37.......... Nomination of nominee by multiple project proponents—nomination accompanying application            41

38.......... Nomination of nominee by multiple project proponents—other nominations           42

39.......... Revocation and cessation of nomination........................................... 42

40.......... Service of documents on nominee..................................................... 43

41.......... Eligible voluntary action taken by nominee....................................... 43

42.......... Unilateral cancellation of registration of biodiversity project—failure of multiple project proponents to nominate a nominee............................................................................................. 44

Division 4—Obligations of multiple project proponents                          46

43.......... Obligations of multiple project proponents....................................... 46

Part 4—Protocol determinations                                                                                47

Division 1—Introduction                                                                                          47

44.......... Simplified outline of this Part............................................................ 47

Division 2—Protocol determinations                                                                 48

Subdivision A—Making of protocol determinations                                      48

45.......... Protocol determinations..................................................................... 48

46.......... Civil penalties—requirements in protocol determination................... 50

47.......... Procedure for making a protocol determination................................. 50

Subdivision B—Variation of protocol determinations                                   52

48.......... Variation of protocol determinations................................................. 52

49.......... When variation takes effect............................................................... 53

Subdivision C—Duration, expiry and revocation of protocol determinations               55

50.......... Duration of protocol determinations.................................................. 55

51.......... Revocation of protocol determinations.............................................. 56

52.......... Effect of protocol determination ceasing to have effect—existing registered biodiversity projects           56

53.......... Effect of protocol determination ceasing to have effect—applications for registration              57

Subdivision D—Advice about making, varying or revoking protocol determinations                58

54.......... Advice by the Agriculture Biodiversity Stewardship Market Advisory Committee 58

55.......... Additional matters for the Agriculture Biodiversity Stewardship Market Advisory Committee to take into account.......................................................................................................... 59

Subdivision E—Consultation by the Agriculture Biodiversity Stewardship Market Advisory Committee            60

56.......... Consultation by the Agriculture Biodiversity Stewardship Market Advisory Committee        60

Division 3—Biodiversity integrity standards                                                 62

57.......... Biodiversity integrity standards......................................................... 62

Part 5—Biodiversity certificates                                                                                  63

Division 1—Introduction                                                                                          63

58.......... Simplified outline of this Part............................................................ 63

Division 2—Issue of biodiversity certificates                                                 64

59.......... Application for biodiversity certificate.............................................. 64

60.......... Form of application........................................................................... 64

61.......... Further information........................................................................... 65

62.......... Issue of biodiversity certificate.......................................................... 65

63.......... Basis on which biodiversity certificates are issued............................ 67

Division 3—Property in biodiversity certificates                                        68

64.......... A biodiversity certificate is personal property................................... 68

65.......... Ownership of biodiversity certificate................................................ 68

66.......... Transmission of biodiversity certificates........................................... 68

67.......... Registration of equitable interests in relation to biodiversity certificates 69

68.......... Equitable interests in relation to biodiversity certificates................... 69

Part 6—Purchase of biodiversity certificates by the Commonwealth 70

Division 1—Introduction                                                                                          70

69.......... Simplified outline of this Part............................................................ 70

Division 2—Biodiversity conservation contracts                                        71

70.......... Biodiversity conservation contracts................................................... 71

71.......... When biodiversity conservation contracts may be entered into......... 71

72.......... Secretary has powers etc. of the Commonwealth.............................. 71

73.......... Conferral of powers on the Secretary................................................ 72

Division 3—Biodiversity conservation purchasing processes               73

74.......... Biodiversity conservation purchasing process.................................. 73

75.......... Conduct of biodiversity conservation purchasing processes............. 73

Division 4—Miscellaneous                                                                                       75

76.......... Rules may provide for certain matters relating to purchased biodiversity certificates               75

77.......... Certain instruments relating to Commonwealth procurement are not applicable       75

78.......... Biodiversity conservation contracts are not instruments made under this Act          75

Part 7—Interests in land                                                                                                  76

Division 1—Introduction                                                                                          76

79.......... Simplified outline of this Part............................................................ 76

Division 2—Eligible interest in an area of land                                            77

80.......... Eligible interest in an area of land—Torrens system land.................. 77

81.......... Eligible interest in an area of land—Crown land that is not Torrens system land     79

82.......... Eligible interest in an area of land—native title land.......................... 81

Division 3—Freehold land rights land                                                               82

83.......... Regulator to notify Crown lands Minister of approval of registration of biodiversity project  82

Division 4—Entries in title registers                                                                   83

84.......... Entries in title registers—general....................................................... 83

85.......... Entries in title registers—biodiversity maintenance areas.................. 83

Part 8—Fit and proper person test                                                                           84

86.......... Simplified outline of this Part............................................................ 84

87.......... Fit and proper person test.................................................................. 84

Part 9—Reporting and notification requirements                                           86

Division 1—Introduction                                                                                          86

88.......... Simplified outline of this Part............................................................ 86

Division 2—Reporting requirements                                                                  87

89.......... Biodiversity project reports—first report.......................................... 87

90.......... Biodiversity project reports—subsequent reports............................. 87

91.......... Requirements for biodiversity project reports................................... 88

Division 3—Notification requirements                                                              90

92.......... Notification requirement—project proponent ceases to have right to carry out project             90

93.......... Notification requirement—withdrawal or cessation of regulatory approval              91

94.......... Notification requirement—death of project proponent...................... 91

95.......... Notification requirement—protocol determinations........................... 92

96.......... Notification requirement—reversal of biodiversity outcome............. 92

97.......... Notification requirement—event or conduct that causes, or is likely to cause, reversal of biodiversity outcome      93

98.......... Significant reversals in biodiversity outcomes—notification requirements               94

99.......... Notification requirement—event relevant to whether a project proponent passes the fit and proper person test       94

100........ The rules may impose notification requirements............................... 96

Part 10—Information‑gathering powers                                                               97

101........ Simplified outline of this Part............................................................ 97

102........ Regulator may obtain information or documents............................... 97

103........ Copying documents—compensation................................................. 98

104........ Copies of documents......................................................................... 98

105........ Regulator may retain documents....................................................... 98

Part 11—Audits                                                                                                                   100

106........ Simplified outline of this Part.......................................................... 100

107........ Compliance audits........................................................................... 100

108........ Other audits..................................................................................... 102

Part 12—Relinquishment requirements                                                               104

Division 1—Introduction                                                                                        104

109........ Simplified outline of this Part.......................................................... 104

Division 2—Relinquishment notices                                                                  105

110........ Relinquishment notice—false or misleading information................ 105

111........ Relinquishment notice—cancellation of registration of biodiversity project             106

112........ Relinquishment notice—reversal of biodiversity outcome other than due to natural disturbance or conduct etc.      106

113........ Relinquishment notice—reversal of biodiversity outcome due to natural disturbance or conduct and no mitigation happens........................................................................................... 107

114........ Significant reversals in biodiversity outcomes—relinquishment requirements         108

115........ Form and content of relinquishment notice..................................... 108

Division 3—Complying with a relinquishment notice                              109

116........ Requirement for compliance with relinquishment notice................. 109

117........ Compliance with relinquishment requirement—relinquishing equivalent biodiversity certificate or certificates       111

118........ How biodiversity certificates are relinquished................................. 112

Part 13—Biodiversity maintenance declarations                                            114

Division 1—Introduction                                                                                        114

119........ Simplified outline of this Part.......................................................... 114

Division 2—Biodiversity maintenance declarations                                 115

120........ Biodiversity maintenance declaration.............................................. 115

121........ Civil penalty for carrying out declared prohibited activity............... 117

122........ When a biodiversity maintenance declaration ceases to be in force. 117

123........ Variation or revocation of biodiversity maintenance declaration..... 117

124........ Revocation of biodiversity maintenance declaration—voluntary relinquishment of biodiversity certificate              118

125........ Delegation by the Regulator............................................................ 119

Part 14—Registers                                                                                                             121

Division 1—Introduction                                                                                        121

126........ Simplified outline of this Part.......................................................... 121

Division 2—Agriculture Biodiversity Stewardship Market Register 122

127........ Agriculture Biodiversity Stewardship Market Register................... 122

128........ Entries in the Register—registered biodiversity projects and former registered biodiversity projects       122

129........ Requests for information about project area not to be set out in the Register            123

130........ Entries in the Register—biodiversity certificates............................. 124

131........ Entries in the Register—accounts for holding biodiversity certificates 124

132........ Rules may make provision in relation to the Register...................... 124

Division 3—Online platform                                                                                 126

133........ Online Platform............................................................................... 126

Part 15—Publication of information                                                                      127

Division 1—Introduction                                                                                        127

134........ Simplified outline of this Part.......................................................... 127

Division 2—Information about biodiversity certificates                       128

135........ Information about biodiversity certificates...................................... 128

136........ Reports about activities of Regulator............................................... 128

137........ Publication of concise description of the characteristics of biodiversity certificates  128

Division 3—Information about biodiversity certificates purchased by the Commonwealth      130

138........ Information about biodiversity conservation purchasing processes 130

139........ Annual reports about purchases of biodiversity certificates............ 130

Division 4—Information about relinquishment requirements            132

140........ Information about relinquishment requirements.............................. 132

141........ Information about relinquished certificates...................................... 133

Part 16—Record‑keeping and project monitoring requirements         134

Division 1—Introduction                                                                                        134

142........ Simplified outline of this Part.......................................................... 134

Division 2—Record‑keeping requirements                                                   135

143........ Record‑keeping requirements—general.......................................... 135

144........ Record‑keeping requirements—preparation of biodiversity project report               135

145........ Record‑keeping requirements—protocol determinations................. 136

Division 3—Project monitoring requirements                                            137

146........ Project monitoring requirements—protocol determinations............ 137

Part 17—Enforcement                                                                                                    138

Division 1—Introduction                                                                                        138

147........ Simplified outline of this Part.......................................................... 138

148........ Appointment of inspectors.............................................................. 138

Division 2—Monitoring powers                                                                          140

149........ Monitoring powers......................................................................... 140

Division 3—Investigation powers                                                                      142

150........ Investigation powers....................................................................... 142

Division 4—Civil penalty provisions                                                                144

151........ Civil penalty provisions.................................................................. 144

Division 5—Infringement notices                                                                       146

152........ Infringement notices........................................................................ 146

Division 6—Enforceable undertakings                                                            148

153........ Enforceable undertakings................................................................ 148

Division 7—Injunctions                                                                                           150

154........ Injunctions...................................................................................... 150

Part 18—Agriculture Biodiversity Stewardship Market Advisory Committee   152

Division 1—Introduction                                                                                        152

155........ Simplified outline of this Part.......................................................... 152

Division 2—Establishment and functions of the Agriculture Biodiversity Stewardship Market Advisory Committee                                                                                            153

156........ Agriculture Biodiversity Stewardship Market Advisory Committee 153

157........ Functions of the Agriculture Biodiversity Stewardship Market Advisory Committee             153

Division 3—Membership of the Agriculture Biodiversity Stewardship Market Advisory Committee 155

158........ Membership of the Agriculture Biodiversity Stewardship Market Advisory Committee         155

159........ Appointment of Agriculture Biodiversity Stewardship Market Advisory Committee members               155

160........ Period for appointment for Agriculture Biodiversity Stewardship Market Advisory Committee members              156

161........ Acting Agriculture Biodiversity Stewardship Market Advisory Committee members             156

162........ Procedures...................................................................................... 158

163........ Disclosure of interests to the Agriculture Minister.......................... 159

164........ Disclosure of interests to the Agriculture Biodiversity Stewardship Market Advisory Committee          160

165........ Other paid work.............................................................................. 160

166........ Remuneration.................................................................................. 161

167........ Leave of absence............................................................................. 161

168........ Resignation..................................................................................... 161

169........ Termination of appointment............................................................ 162

170........ Other terms and conditions............................................................. 163

171........ Assistance to Agriculture Biodiversity Stewardship Market Advisory Committee  163

Part 19—Review of decisions                                                                                      164

Division 1—Introduction                                                                                        164

172........ Simplified outline of this Part.......................................................... 164

Division 2—Decisions of the Regulator                                                          165

173........ Reviewable decisions...................................................................... 165

174........ Notice of decision and reconsideration rights to be given—decisions made by delegates of the Regulator              166

175........ Applications for reconsideration of decisions made by delegates of the Regulator   166

176........ Reconsideration by the Regulator.................................................... 167

177........ Deadline for reconsideration........................................................... 167

178........ Review by the Administrative Appeals Tribunal............................. 168

Part 20—Miscellaneous                                                                                                  169

179........ Miscellaneous functions of the Regulator....................................... 169

180........ Treatment of trusts.......................................................................... 170

181........ Rules may provide for voluntary accreditation of advisers etc........ 171

182........ Information previously given to the Regulator................................ 171

183........ Delegation by the Agriculture Minister........................................... 172

184........ Delegation by the Secretary............................................................. 172

185........ Concurrent operation of State and Territory laws............................ 173

186........ Law relating to legal professional privilege not affected.................. 173

187........ Arrangements with States and Territories....................................... 173

188........ Liability for damages....................................................................... 173

189........ Executive power of the Commonwealth.......................................... 174

190........ Notional payments by the Commonwealth...................................... 174

191........ Compensation for acquisition of property....................................... 174

192........ Native title rights not affected.......................................................... 175

193........ Racial Discrimination Act not affected............................................ 175

194........ Approval of registration of biodiversity project—eligible land....... 175

195........ Administrative decisions under the rules......................................... 175

196........ Review of operation of this Act etc................................................. 175

197........ Rules............................................................................................... 177

 

A Bill for an Act to establish a national voluntary framework for projects to enhance or protect biodiversity, and for other purposes

The Parliament of Australia enacts:

Part 1—Preliminary

  

1  Short title

                   This Act is the Agriculture Biodiversity Stewardship Market Act 2022.

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.

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 establish a framework for a market that facilitates projects to enhance or protect biodiversity in native species in Australia; and

                     (b)  to contribute to meeting Australia’s international obligations in relation to biodiversity.

4  Simplified outline of this Act

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.

6  Extension to external Territories

                   This Act extends to every external Territory.

7  Definitions

                   In this Act:

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 16(6)(e), subject to any variation under rules made for the purposes of paragraph 21(1)(c).

Agriculture Biodiversity Stewardship Market Advisory Committee means the committee established by section 156.

Agriculture Biodiversity Stewardship Market Advisory Committee member means a member of the Agriculture Biodiversity Stewardship Market Advisory Committee, and includes the Chair of the Agriculture Biodiversity Stewardship Market Advisory Committee.

Agriculture Department means the Department administered by the Agriculture Minister.

Agriculture Minister means the Minister administering the Primary Industries Research and Development Act 1989.

associated provisions means the following provisions:

                     (a)  the provisions of the rules;

                     (b)  the provisions of a protocol determination;

                     (c)  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)  the rules; or

                            (iii)  a protocol determination.

audit team leader means a registered greenhouse and energy auditor appointed under any of the following provisions:

                     (a)  paragraph 13(3)(a);

                     (b)  paragraph 60(1)(f);

                     (c)  paragraph 91(1)(d);

                     (d)  paragraph 107(2)(a);

                     (e)  subsection 108(1).

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 certificate means a certificate issued under section 62.

biodiversity conservation contract: see section 70.

biodiversity conservation contractor: see section 70.

biodiversity conservation purchasing process: see section 74.

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 2022 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 120(1).

biodiversity maintenance declaration means a declaration made by the Regulator under subsection 120(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).

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.

covers: a protocol determination covers a registered biodiversity project if the entry for the project in the Register states that the protocol 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 120(4) in relation to the biodiversity maintenance area.

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 10.

eligible interest, in relation to an area of land, has the meaning given by section 80, 81 or 82.

eligible land: see section 8.

eligible person means any of the following:

                     (a)  an individual;

                     (b)  a body corporate;

                     (c)  a trust;

                     (d)  a corporation sole.

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 or an instrument made under this Act.

engage in conduct means:

                     (a)  do an act; or

                     (b)  omit to perform an act.

excluded biodiversity project: see section 34.

exclusive possession native title land means native title land, where the native title confers a right of exclusive possession over the land.

executive officer of a body corporate means:

                     (a)  a director of the body corporate; or

                     (b)  the chief executive officer (however described) of the body corporate; or

                     (c)  the chief financial officer (however described) of the body corporate; or

                     (d)  the secretary of the body corporate.

Federal Court means the Federal Court of Australia.

fit and proper person test: for when an eligible person passes the fit and proper person test, see section 87.

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.

inspector means a person appointed as an inspector under section 148.

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.

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 120(1)(a).

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 land: an area of land is native title land 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.

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 identified in the notice of approval of registration under paragraph 16(6)(e), subject to any variation under rules made for the purposes of paragraph 21(1)(d).

project includes a set of activities.

project area, in relation to a biodiversity project, means the area of land, or areas of land, on which the project has been, is being, or is to be carried out.

project proponent, in relation to a registered biodiversity project, means the eligible person who is recorded in the Register as the project proponent for the project.

Note:          For projects with multiple project proponents, see Part 3.

protocol determination means a determination under subsection 45(1).

Register means the Agriculture Biodiversity Stewardship Market Register kept by the Regulator under subsection 127(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 128(3)).

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.

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 is or was a registered biodiversity project—means the Registrar of Titles or other proper officer of the State or Territory in which the project area or areas are situated; or

                     (b)  in relation to an area of land 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 of land is situated.

relinquishment equivalence requirements: see subsection 117(2).

relinquishment notice means a notice given by the Regulator under any of the following provisions:

                     (a)  subsection 110(2) (false or misleading information);

                     (b)  subsection 111(2) (cancellation of registration of biodiversity project);

                     (c)  subsection 112(2) (reversal of biodiversity outcome other than due to natural disturbance or conduct etc.);

                     (d)  subsection 113(2) (reversal of biodiversity outcome due to natural disturbance or conduct and no mitigation happens).

reviewable decision has the meaning given by section 173.

rules means rules made under section 197.

Secretary means the Secretary of the Agriculture 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.

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.

vacancy, in relation to the office of an Agriculture Biodiversity Stewardship Market Advisory Committee member, has a meaning affected by section 9.

8  Meaning of eligible land

             (1)  For the purposes of this Act, eligible land means agricultural land in Australia.

             (2)  However, the rules may provide for eligible land to have the meaning prescribed by the rules. If the rules do so, subsection (1) does not apply.

Note:          A change in the meaning of eligible land does not affect a biodiversity project that is already registered when the change takes effect.

             (3)  Rules made for the purposes of subsection (2) must not provide for land outside Australia to be eligible land.

9  Vacancy in the office of an Agriculture Biodiversity Stewardship Market Advisory Committee member

                   For the purposes of a reference in:

                     (a)  this Act to a vacancy in the office of an Agriculture Biodiversity Stewardship Market Advisory Committee member; or

                     (b)  the Acts Interpretation Act 1901 to a vacancy in the membership of a body;

there are taken to be 3 offices of Agriculture Biodiversity Stewardship Market Advisory Committee member in addition to the Chair of the Committee.

10  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)  For the purposes of this Act, if a notice is transmitted to the Regulator by means of an electronic communication, the notice is taken to have been transmitted on the day on which the electronic communication is dispatched.

             (6)  Subsection (5) of this section has effect despite section 14A of the Electronic Transactions Act 1999.

             (7)  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

11  Simplified outline of this Part

Division 2—Registration of biodiversity project

12  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 179.

             (2)  However, applications under subsection (1) may be made only on or after a day determined by the Agriculture Minister by legislative instrument.

13  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 protocol determination (the applicable protocol determination) that is proposed to cover the project; and

                     (d)  specify the proposed activity period, and the proposed permanence period, which must be worked out in accordance with the applicable protocol determination; and

                     (e)  include such other information as is specified in the rules; and

                      (f)  include such other information as is specified in the applicable protocol determination.

             (3)  An application must be accompanied by:

                     (a)  if the rules or the applicable protocol determination provides that this paragraph applies to the proposed project—a prescribed audit report 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 an indigenous land use agreement is relevant to the Regulator’s decision on the application—a copy of relevant parts of the agreement; and

                     (d)  such other documents (if any) as are specified in the rules; and

                     (e)  such other documents (if any) as are specified in the applicable protocol determination; and

                      (f)  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)(f) must not be such as to amount to taxation.

14  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.

15  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.

16  Approval of registration of biodiversity project

Scope

             (1)  This section applies if an application under section 12 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 19.

             (3)  The Regulator must give written notice of a decision under subsection (2) to:

                     (a)  the applicant; and

                     (b)  if the decision is a decision to approve the registration of 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)  all land included or to be included in the project area or areas is eligible land; and

                     (c)  the project is of a kind specified, for the purposes of paragraph 45(1)(a), in the protocol determination (the applicable protocol determination) that is specified in the application under paragraph 13(2)(c); and

                     (d)  the activity period and permanence period for the project have been worked out in accordance with the applicable protocol determination; and

                     (e)  the project meets any conditions set out in the applicable protocol determination under paragraph 45(1)(b); and

                      (f)  the applicant is to be registered as the project proponent, or one of the project proponents, for the project; and

                     (g)  the project proponent, or each of the project proponents, is an eligible person; and

                     (h)  the project proponent, or each of the project proponents, passes the fit and proper person test; and

                      (i)  the project area, or each project area, meets the requirements set out in subsection (5) of this section; and

                      (j)  the project area, or all of the project areas, are in the same State or Territory; and

                     (k)  the project meets the eligibility requirements (if any) specified in the rules; and

                      (l)  the project is not an excluded biodiversity project.

Note 1:       Protocol determinations are made under section 45.

Note 2:       For excluded biodiversity project, see section 34.

Note 3:       For the fit and proper person test, see section 87.

             (5)  The requirements mentioned in paragraph (4)(i) are:

                     (a)  the project area is Torrens system land or Crown land; and

                     (b)  the project area is not specified in the rules.

Matters to be included in notice

             (6)  If the Regulator approves the registration of the biodiversity project, the notice must:

                     (a)  identify the name of the project; and

                     (b)  identify, in accordance with the rules, the project area or project areas; and

                     (c)  identify the project proponent or project proponents for the project; and

                     (d)  identify the applicable protocol determination; and

                     (e)  identify the activity period and the permanence period for the project; and

                      (f)  if the registration is subject to a condition under section 18 or 19—set out the condition; and

                     (g)  identify such attributes of the project as are specified in the rules.

Timing

             (7)  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 14(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.

17  Suspension of processing of applications for registrations of biodiversity projects

Order

             (1)  The Agriculture Minister may, by legislative instrument, order that, if:

                     (a)  an application is made under section 12 during a specified period; and

                     (b)  the application relates to a biodiversity project that is proposed to be covered by a protocol 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 Agriculture Minister may make an order under subsection (1) that relates to a particular protocol determination only if the Agriculture Biodiversity Stewardship Market Advisory Committee has advised the Agriculture Minister that the Committee is satisfied that there is reasonable evidence that the protocol determination does not comply with one or more of the biodiversity integrity standards.

             (4)  The Agriculture Biodiversity Stewardship Market Advisory Committee may give the Agriculture Minister advice for the purposes of subsection (3):

                     (a)  on the Committee’s own initiative; or

                     (b)  on request by the Agriculture Minister.

             (5)  If the Agriculture Biodiversity Stewardship Market Advisory Committee gives the Agriculture Minister advice for the purposes of subsection (3), the Agriculture Department must publish the advice on the Agriculture Department’s website (whether or not the Agriculture Minister follows the advice).

             (6)  To avoid doubt, Subdivisions D (advice about making, varying or revoking protocol determinations) and E (consultation by the Agriculture Biodiversity Stewardship Market Advisory 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 12 is or was covered by an order under subsection (1) of this section, subsection 16(7) (timing of decision on application) does not apply to the application.

18  Registration may be subject to condition about obtaining regulatory approvals

Scope

             (1)  This section applies if:

                     (a)  an application under section 12 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 16; 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 16(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.

19  Registration may be subject to condition about obtaining consents from eligible interest holders

Scope

             (1)  This section applies if:

                     (a)  an application under section 12 has been made for the Regulator to approve the registration of a biodiversity project; and

                     (b)  the Regulator decides under section 16 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 of the project areas, 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 16(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.

Division 3—Variation of registration

20  Voluntary variation of registration of biodiversity project—change in identity of project proponent

             (1)  The rules may make provision for and in relation to empowering the Regulator to vary the registration of a registered biodiversity project to:

                     (a)  add an eligible person as a project proponent of the project; or

                     (b)  remove a project proponent from the project (so long as this would not result in there not being any project proponents for the project).

Note 1:       See also section 23 (procedures for voluntary variation of registration of biodiversity project).

Note 2:       For review of decisions, see Part 19.

             (2)  Rules made for the purposes of subsection (1) must not empower the Regulator to vary a registration unless:

                     (a)  if there is a project proponent for the project—the project proponent applies to the Regulator for the variation; and

                     (b)  any eligible person that is to be added as a project proponent for the project consents, in writing, to the variation; and

                     (c)  the Regulator is satisfied that any eligible person that is to be added as a project proponent for the project passes the fit and proper person test; and

                     (d)  if a biodiversity certificate is in effect in relation to the project, and the project proponent (if any) is not the holder of the certificate—the holder of the certificate has been notified of the proposed variation, and has been given the opportunity to make submissions in relation to the proposed variation.

Note:          For the fit and proper person test, see section 87.

             (3)  Rules made for the purposes of subsection (1) may empower the Regulator to require the Commonwealth to be given security in relation to the fulfilment of any requirements to relinquish biodiversity certificates that may be imposed under Part 12 in relation to the project (whether or not the circumstances that may result in a relinquishment notice being given exist at the time the variation is made).

             (4)  Rules made for the purposes of subsection (1) may empower the Regulator to refuse an application to remove a project proponent from a registered biodiversity project unless the Regulator is satisfied that the remaining project proponents would have the capability and resources to carry out the project.

21  Voluntary variation of registration of biodiversity project—changes in project area etc.

             (1)  The rules may make provision for and in relation to empowering the Regulator to vary the registration of a registered biodiversity project in respect of any of the following:

                     (a)  the project area or areas;

                     (b)  the protocol determination that covers the project;

                     (c)  the project’s activity period;

                     (d)  the project’s permanence period.

Note 1:       See also section 23 (procedures for voluntary variation of registration of biodiversity project).

Note 2:       For review of decisions, see Part 19.

             (2)  The protocol determination that is to cover a registered biodiversity project as a result of a variation under rules made for the purposes of paragraph (1)(b) of this section:

                     (a)  must be in force at the time the variation of the project’s registration takes effect; and

                     (b)  applies to the project subject to any variations under section 48 that take effect before the variation of the project’s registration takes effect.

This subsection has effect despite subsections 49(2) (when variation of a protocol determination takes effect) and 52(2) (protocol determination continues to have effect despite cessation).

             (3)  Rules made for the purposes of subsection (1) must not empower the Regulator to vary a registration unless:

                     (a)  the project proponent for the project applies to the Regulator for the variation; and

                     (b)  if a biodiversity certificate is in effect for the project, and the project proponent is not the holder of the certificate—either:

                              (i)  the holder of the certificate has consented, in writing, to the variation; or

                             (ii)  the variation would not result in a material change to the certificate.

22  Voluntary variation of conditional registration of biodiversity project—condition of registration has been met

             (1)  The rules may make provision for and in relation to empowering the Regulator to vary the registration of a registered biodiversity project to remove any of the following conditions to which the registration is subject:

                     (a)  a condition mentioned in subsection 18(2) (conditions about obtaining regulatory approvals);

                     (b)  a condition mentioned in subsection 19(2) (conditions about obtaining consents from eligible interest holders).

Note 1:       See also section 23 (procedures for voluntary variation of registration of biodiversity project).

Note 2:       For review of decisions, see Part 19.

             (2)  Rules made for the purposes of subsection (1) must not empower the Regulator to vary a registration unless:

                     (a)  the project proponent for the project applies to the Regulator for the variation; and

                     (b)  the Regulator is satisfied that the condition has been met.

23  Procedures for voluntary variation of registration of biodiversity project

             (1)  Rules made for the purposes of subsection 20(1), 21(1) or 22(1) may make provision for or in relation to any or all of the following matters:

                     (a)  applications for variations under those rules;

                     (b)  the approval by the Regulator of a form for such an application;

                     (c)  information that must accompany such an application;

                     (d)  documents that must accompany such an application;

                     (e)  verification by statutory declaration of statements in such an application;

                      (f)  consents that must be obtained for the making of such an application;

                     (g)  authorising a person to issue a certificate to certify a matter in relation to such an application;

                     (h)  the fee (if any) that must accompany such an application;

                      (i)  the withdrawal of such an application;

                      (j)  empowering the Regulator:

                              (i)  to require an applicant to give the Regulator further information in connection with such an application; and

                             (ii)  if the applicant breaches the requirement—to refuse to consider the application, or to refuse to take any action, or any further action, in relation to the application;

                     (k)  varying a biodiversity certificate issued in respect of a registered biodiversity project (including such a certificate that is held by a person other than the project proponent for the project).

             (2)  Subsection (1) does not limit subsection 20(1), 21(1) or 22(1).

             (3)  A fee mentioned in paragraph (1)(h) must not be such as to amount to taxation.

             (4)  Rules made for the purposes of subsection 20(1), 21(1) or 22(1) must provide that, if the registration of a registered biodiversity project is varied in accordance with those rules, the Regulator must give a copy of the variation to:

                     (a)  the applicant for the variation; and

                     (b)  the relevant land registration official.

             (5)  Rules made for the purposes of subsection 20(1), 21(1) or 22(1) must provide that, if the Regulator decides to refuse to vary the registration of a registered biodiversity project in accordance with an application for variation under those rules, the Regulator must give written notice of the decision to the applicant for the variation.

Division 4—Cancellation of registration of biodiversity project

Subdivision A—Voluntary cancellation of registration of biodiversity project

24  Voluntary cancellation of registration of biodiversity project—certificate in effect

             (1)  The rules may make provision for and in relation to empowering the Regulator to cancel the registration of a registered biodiversity project.

Note:          For review of decisions, see Part 19.

             (2)  Rules made for the purposes of subsection (1) must not empower the Regulator to cancel a registration unless:

                     (a)  a biodiversity certificate (the original certificate) has been issued in respect of the registered biodiversity project (whether or not the original certificate remains in effect); and

                     (b)  the project proponent for the project applies to the Regulator for the cancellation of the registration; and

                     (c)  either:

                              (i)  the original certificate is relinquished in accordance with section 118 in relation to the project, as mentioned in paragraph 118(2)(c); or

                             (ii)  one or more other biodiversity certificates are relinquished in accordance with section 118 in relation to the project, as mentioned in paragraph 118(2)(c), and the relinquished certificate or certificates meet the relinquishment equivalence requirements in relation to the original certificate.

Note:          See paragraph 117(1)(b) (compliance with relinquishment requirement by relinquishing equivalent biodiversity certificate or certificates).

             (3)  Rules made for the purposes of subsection (1) may make provision for or in relation to any of the following matters:

                     (a)  applications for cancellation under those rules;

                     (b)  the approval by the Regulator of a form for such an application;

                     (c)  other conditions that must be satisfied for the Regulator to cancel the registration in accordance with those rules.

             (4)  Subsection (3) does not limit subsection (1).

25  Voluntary cancellation of registration of biodiversity project—no certificate in effect

             (1)  The rules may make provision for and in relation to empowering the Regulator to cancel the registration of a registered biodiversity project.

Note:          For review of decisions, see Part 19.

             (2)  Rules made for the purposes of subsection (1) must not empower the Regulator to cancel a registration unless:

                     (a)  no biodiversity certificate has been issued in relation to the registered biodiversity project; and

                     (b)  the project proponent for the project applies to the Regulator for the cancellation of the registration.

             (3)  Rules made for the purposes of subsection (1) may make provision for or in relation to either or both of the following matters:

                     (a)  applications for cancellation under those rules;

                     (b)  the approval by the Regulator of a form for such an application.

             (4)  Subsection (3) does not limit subsection (1).

26  Procedures for voluntary cancellation of registration of biodiversity project

             (1)  Rules made for the purposes of subsection 24(1) or 25(1) may make provision for or in relation to any or all of the following matters:

                     (a)  applications for cancellation under those rules;

                     (b)  the approval by the Regulator of a form for such an application;

                     (c)  information that must accompany such an application;

                     (d)  documents that must accompany such an application;

                     (e)  verification by statutory declaration of statements in such an application;

                      (f)  consents that must be obtained for the making of such an application;

                     (g)  authorising a person to issue a certificate to certify a matter in relation to such an application;

                     (h)  the fee (if any) that must accompany such an application;

                      (i)  the withdrawal of such an application;

                      (j)  empowering the Regulator:

                              (i)  to require an applicant to give the Regulator further information in connection with such an application; and

                             (ii)  if the applicant breaches the requirement—to refuse to consider the application, or to refuse to take any action, or any further action, in relation to the application;

                     (k)  varying a biodiversity certificate issued in respect of a registered biodiversity project (including such a certificate that is held by a person other than the project proponent for the project).

             (2)  Subsection (1) does not limit subsection 24(1) or 25(1).

             (3)  A fee mentioned in paragraph (1)(h) must not be such as to amount to taxation.

             (4)  Rules made for the purposes of subsection 24(1) or 25(1):

                     (a)  must provide that, if the registration of a registered biodiversity project is cancelled in accordance with those rules, the Regulator must give notice of the cancellation to:

                              (i)  the applicant for the cancellation; and

                             (ii)  the relevant land registration official; and

                            (iii)  in a case where the registration was cancelled under rules made for the purposes of subsection 24(1), and the biodiversity certificate mentioned in paragraph 24(2)(a) is held by a person other than the applicant—the holder of the certificate; and

                     (b)  may require the Regulator to give notice of the cancellation to other people.

             (5)  Rules made for the purposes of subsection 24(1) or 25(1) must provide that, if the Regulator decides to refuse to cancel the registration of a registered biodiversity project in accordance with an application for cancellation under those rules, the Regulator must give written notice of the decision to the applicant for the cancellation.

Subdivision B—Unilateral cancellation of registration of biodiversity project

27  Unilateral cancellation of registration of biodiversity project—condition of registration has not been met

             (1)  The rules may make provision for and in relation to empowering the Regulator to cancel the registration of a registered biodiversity project.

Note:          For review of decisions, see Part 19.

             (2)  Rules made for the purposes of subsection (1) must not empower the Regulator to cancel a registration unless:

                     (a)  the registration is subject to a condition mentioned in subsection 18(2) or 19(2); and

                     (b)  the Regulator is satisfied that the condition has not been met; and

                     (c)  at least 5 years have passed since the project was first registered.

             (3)  Rules made for the purposes of subsection (1) must require the Regulator to consult the project proponent for the project before deciding to cancel the registration.

28  Unilateral cancellation of registration of biodiversity project—project not commenced, or unlikely to result in issuing of biodiversity certificate

             (1)  The rules may make provision for and in relation to empowering the Regulator to cancel the registration of a registered biodiversity project.

Note:          For review of decisions, see Part 19.

             (2)  Rules made for the purposes of subsection (1) must not empower the Regulator to cancel a registration unless:

                     (a)  a certificate has not yet been issued in respect of the registered biodiversity project; and

                     (b)  either:

                              (i)  5 years have passed since the project was first registered, and the Regulator is not satisfied that the project has begun to be carried out; or

                             (ii)  the Regulator is satisfied that the project is not being carried out, and is unlikely to be carried out in a way that would result in a biodiversity certificate being issued in respect of the project.

             (3)  Rules made for the purposes of subsection (1) must require the Regulator to consult the project proponent for the project before deciding to cancel the registration.

29  Unilateral cancellation of registration of biodiversity project—eligibility requirements not met etc.

             (1)  The rules may make provision for and in relation to empowering the Regulator to cancel the registration of a registered biodiversity project.

Note:          For review of decisions, see Part 19.

             (2)  Rules made for the purposes of subsection (1) must not empower the Regulator to cancel a registration unless the Regulator is satisfied that the project does not meet a requirement that is:

                     (a)  set out in subsection 16(4); and

                     (b)  specified in rules made for the purposes of this paragraph.

             (3)  Rules made for the purposes of subsection (1) must require the Regulator to consult the project proponent for the project before deciding to cancel the registration.

30  Unilateral cancellation of registration of biodiversity project—project proponent ceases to pass the fit and proper person test

             (1)  The rules may make provision for and in relation to empowering the Regulator to cancel the registration of a registered biodiversity project.

Note:          For review of decisions, see Part 19.

             (2)  Rules made for the purposes of subsection (1) must not empower the Regulator to cancel a registration unless:

                     (a)  the Regulator is satisfied that either:

                              (i)  if there is one project proponent for the project—the project proponent for the project does not pass the fit and proper person test; or

                             (ii)  if there are multiple project proponents for the project—any of those project proponents do not pass the fit and proper person test; and

                     (b)  90 days pass after the Regulator becomes so satisfied, and, at the end of that 90‑day period, the Regulator is not satisfied that each project proponent for the project passes the fit and proper person test.

Note:          For the fit and proper person test, see section 87.

             (3)  Rules made for the purposes of subsection (1) must require the Regulator to consult the project proponent for the project before deciding to cancel the registration.

31  Unilateral cancellation of registration of biodiversity project—project proponent ceases to exist etc.

Note:          For review of decisions, see Part 19.

             (1)  The rules may make provision for and in relation to empowering the Regulator to cancel the registration of a registered biodiversity project.

             (2)  Rules made for the purposes of subsection (1) must not empower the Regulator to cancel a registration unless:

                     (a)  the Regulator is satisfied that any of the following circumstances exist:

                              (i)  the project proponent has died or ceased to exist, and there are no other project proponents for the project;

                             (ii)  the project is not being carried out (except to the extent that this is in accordance with the protocol determination that covers the project); and

                     (b)  90 days pass after the circumstances began to exist, and the Regulator is not satisfied, at the end of that 90‑day period, that the circumstances have ceased to exist.

             (3)  Rules made for the purposes of subsection (1) must require the Regulator to make reasonable efforts to consult the project proponent for the project before deciding to cancel the registration.

32  Unilateral cancellation of registration of biodiversity project—false or misleading information

             (1)  The rules may make provision for and in relation to empowering the Regulator to cancel the registration of a registered biodiversity project.

Note:          For review of decisions, see Part 19.

             (2)  Rules made for the purposes of subsection (1) must not empower the Regulator to cancel a registration unless:

                     (a)  information was given by a person to the Regulator in connection with the project; and

                     (b)  the information was:

                              (i)  contained in an application under this Act or the rules; or

                             (ii)  given in connection with an application under this Act or the rules; or

                            (iii)  contained in a biodiversity project report; or

                            (iv)  contained in a notification under Division 3 of Part 9; and

                     (c)  the information was false or misleading in a material particular.

             (3)  Rules made for the purposes of subsection (1) must require the Regulator to consult the project proponent for the project before deciding to cancel the registration.

33  Notice of unilateral cancellation of registration of biodiversity project

                   Rules made for the purposes of subsection 27(1), 28(1), 29(1), 30(1), 31(1) or 32(1):

                     (a)  must provide that, if the registration of a registered biodiversity project is cancelled in accordance with those rules, the Regulator must give notice of the cancellation to:

                              (i)  the relevant land registration official; and

                             (ii)  if a biodiversity certificate is in effect in relation to the project, and is held by a person other than the project proponent—the holder of the certificate; and

                     (b)  may require the Regulator to give notice of the cancellation to other people.

Division 5—Excluded biodiversity projects

34  Excluded biodiversity projects

             (1)  For the purposes of this Act, a biodiversity project is an excluded biodiversity project if it is a project of a kind specified in the rules.

             (2)  In deciding whether to make rules for the purposes of subsection (1) specifying a particular kind of project, the Agriculture Minister must have regard to whether there is a material risk that that kind of project will have a material adverse impact on one or more of the following:

                     (a)  the availability of water;

                     (b)  biodiversity (other than the kinds of biodiversity to be addressed by the project);

                     (c)  employment;

                     (d)  the local community;

                     (e)  land access for agricultural production.

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

                   If there are 2 or more eligible persons (the multiple project proponents) who are registered as the project proponents for a registered biodiversity project, then:

                     (a)  for the purposes of this Act, each of the multiple project proponents is a project proponent for the registered biodiversity project; and

                     (b)  a reference in:

                              (i)  this Act; or

                             (ii)  the rules; or

                            (iii)  any other instrument under this Act;

                            to the project proponent for the registered biodiversity project is to be read as a reference to each of the multiple project proponents.

Division 3—Nominee of multiple project proponents

37  Nomination of nominee by multiple project proponents—nomination accompanying application

Scope

             (1)  This section applies to:

                     (a)  an application under section 12 for the Regulator to approve the registration of a biodiversity project if the application specifies 2 or more eligible persons who are to be project proponents for the biodiversity project; or

                     (b)  an application under rules made for the purposes of section 20 (change in identity of project proponent) that would, if granted, result in there being multiple project proponents for a registered biodiversity project (whether or not there would otherwise be multiple project proponents).

Nomination

             (2)  The application must be accompanied by a notice, made jointly in writing by all of the eligible persons who would, if the application were granted, be project proponents for the biodiversity project, nominating one of those eligible persons as the nominee in relation to the biodiversity project.

             (3)  The joint written notice must be in a form approved, in writing, by the Regulator.

             (4)  If the Regulator grants the application, the nomination takes effect:

                     (a)  if paragraph (1)(a) applies—at the time the biodiversity project is registered as a registered biodiversity project; or

                     (b)  if paragraph (1)(b) applies—at the time the variation under rules made for the purposes of section 20 takes effect.

             (5)  If the application is not granted, the nomination does not take effect.

38  Nomination of nominee by multiple project proponents—other nominations

Scope

             (1)  This section applies to a registered biodiversity project that has multiple project proponents.

Nomination

             (2)  The project proponents may give the Regulator a notice, made jointly in writing by all of the project proponents, nominating one of the project proponents as the nominee in relation to the registered biodiversity project.

Note:          If a registered biodiversity project that has multiple project proponents ceases to have a nominee, and no new nominee is nominated, the Regulator may cancel the project’s registration from 90 days after the cessation (see section 42).

             (3)  The joint written notice must be in a form approved, in writing, by the Regulator.

             (4)  The nomination takes effect at the time it is given to the Regulator.

             (5)  If a nomination under subsection (2) takes effect in relation to a particular registered biodiversity project, any other nomination under this Part that was in force in relation to that registered biodiversity project ceases to be in force.

39  Revocation and cessation of nomination

             (1)  If:

                     (a)  a nomination under subsection 37(2) or 38(2) is in force in relation to a registered biodiversity project; and

                     (b)  one of the project proponents for the registered biodiversity project, by written notice given to the Regulator, revokes the nomination;

the nomination ceases to be in force.

             (2)  If:

                     (a)  a nomination under subsection 37(2) or 38(2) is in force in relation to a registered biodiversity project; and

                     (b)  the nominee ceases to be one of the project proponents for the registered biodiversity project;

the nomination ceases to be in force.

Note:          If a registered biodiversity project that has multiple project proponents ceases to have a nominee, and no new nominee is nominated, the Regulator may cancel the project’s registration from 90 days after the cessation (see section 42).

40  Service of documents on nominee

Scope

             (1)  This section applies if there are 2 or more project proponents (the multiple project proponents) for a registered biodiversity project.

Service of documents

             (2)  For the purposes of this Act, if:

                     (a)  the multiple project proponents have nominated a nominee under subsection 37(2) or 38(2) in relation to the project; and

                     (b)  the nomination is in force; and

                     (c)  a document relating to the registered biodiversity project is required or permitted by this Act to be given to the project proponent; and

                     (d)  the document is given to the nominee;

the document is taken to have been given to each of the multiple project proponents.

41  Eligible voluntary action taken by nominee

Scope

             (1)  This section applies if there are 2 or more project proponents (the multiple project proponents) for a registered biodiversity project.

Eligible voluntary action to be taken by nominee

             (2)  If:

                     (a)  the multiple project proponents have nominated a nominee under subsection 37(2) or 38(2) in relation to the project; and

                     (b)  the nomination is in force; and

                     (c)  the nominee takes an eligible voluntary action; and

                     (d)  the application, nomination, request or notice to which the eligible voluntary action relates is expressed to be made, withdrawn or given, as the case may be, on behalf of the multiple project proponents;

this Act and any instrument made under this Act have effect as if:

                     (e)  the application, nomination, request or notice to which the eligible voluntary action relates were made, withdrawn or given, as the case may be, by the multiple project proponents jointly; and

                      (f)  if the eligible voluntary action is the making of an application—a reference in this Act or the instrument to the applicant were a reference to each of the multiple project proponents.

             (3)  The multiple project proponents are not entitled to take an eligible voluntary action except in accordance with subsection (2).

42  Unilateral cancellation of registration of biodiversity project—failure of multiple project proponents to nominate a nominee

             (1)  The rules may make provision for and in relation to empowering the Regulator to cancel the registration of a registered biodiversity project.

Note:          For review of decisions, see Part 19.

             (2)  Rules made for the purposes of subsection (1) must not empower the Regulator to cancel a registration unless:

                     (a)  there are 2 or more project proponents (the multiple project proponents) for the registered biodiversity project; and

                     (b)  the multiple project proponents have nominated an eligible person under subsection 37(2) or 38(2); and

                     (c)  the nomination ceases to be in force; and

                     (d)  90 days pass, and no new nomination under subsection 37(2) or 38(2) is made by the multiple project proponents.

             (3)  Rules made for the purposes of subsection (1) must require the Regulator to consult the multiple project proponents before deciding to cancel the registration.

             (4)  Rules made for the purposes of subsection (1):

                     (a)  must provide that, if the registration of a registered biodiversity project is cancelled in accordance with those rules, the Regulator must give notice of the cancellation to:

                              (i)  the relevant land registration official; and

                             (ii)  if a biodiversity certificate is in effect in relation to the project, and is held by a person other than the project proponent—the holder of the certificate; and

                     (b)  may require the Regulator to give notice of the cancellation to other people.

Division 4—Obligations of multiple project proponents

43  Obligations of multiple project proponents

Scope

             (1)  This section applies if:

                     (a)  there are 2 or more project proponents (the multiple project proponents) for a registered biodiversity project; and

                     (b)  any of the following:

                              (i)  this Act;

                             (ii)  the rules;

                            (iii)  another instrument made under this Act;

                            imposes an obligation on the project proponent for the project.

Obligations of project proponent

             (2)  The obligation is imposed on each of the multiple project proponents, but may be discharged by any of the multiple project proponents.

             (3)  The rules may exempt a specified obligation from the scope of subsection (2).

Part 4—Protocol determinations

Division 1—Introduction

44  Simplified outline of this Part

Division 2—Protocol determinations

Subdivision A—Making of protocol determinations

45  Protocol determinations

             (1)  The Agriculture Minister may, by legislative instrument, make a determination that:

                     (a)  is expressed to cover a specified kind of biodiversity project; and

                     (b)  sets out conditions that must be met for such a project to be registered as a registered biodiversity project; and

                     (c)  provides, for the purposes of paragraph 128(1)(h), for information that is to be included in the entry in the Register for such a project; and

                     (d)  sets out:

                              (i)  for the purposes of paragraph 59(2)(b), conditions that must be met for an application to be made for a biodiversity certificate to be issued in respect of such a project; and

                             (ii)  for the purposes of paragraph 59(2)(c), a method of working out the time after which such applications may be made; and

                     (e)  sets out, for the purposes of paragraph 62(2)(f), conditions that must be met for a biodiversity certificate to be issued in respect of such a project; and

                      (f)  requires, for the purposes of paragraph 95(1)(b), the project proponent for such a project to notify the Regulator of specified matters relating to the project; and

                     (g)  provides, for the purposes of paragraphs 130(1)(d) and (2)(c), for information that is to be included in the entry in the Register for a biodiversity certificate issued in relation to such a project; and

                     (h)  sets out the activities that are to be carried out for the purposes of such a project; and

                      (i)  provides for the activity period and permanence period of such a project to be worked out.

             (2)  A determination made under subsection (1) is a protocol determination.

             (3)  A protocol determination may impose any of the following on the project proponent of a registered biodiversity project that is covered by the protocol determination:

                     (a)  specified requirements to carry out activities in the project area for the purposes of the project;

                     (b)  specified requirements to ensure that specified activities are not carried out, by the project proponent or any other person, in the project area;

                     (c)  specified requirements to include information relating to the project in each biodiversity project report about the project;

                     (d)  specified requirements to notify one or more matters relating to the project to the Regulator;

                     (e)  specified record‑keeping requirements relating to the project;

                      (f)  specified requirements to monitor the project.

Note:          See section 46 (civil penalties—requirements in protocol determination).

             (4)  Without limiting subsection 33(3A) of the Acts Interpretation Act 1901, a protocol determination may make different provision in relation to different kinds of biodiversity projects covered by the determination.

Note:          For example, a protocol determination may set out requirements under paragraph (1)(b) that differ depending on which region the project area of a biodiversity project is in.

             (5)  Despite subsection 14(2) of the Legislation Act 2003, a protocol determination may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in an instrument or other writing as in force or existing from time to time.

             (6)  A protocol determination may make provision in relation to a matter by conferring a power to make a decision of an administrative character on the Regulator.

46  Civil penalties—requirements in protocol determination

             (1)  An eligible person is liable to a civil penalty if:

                     (a)  the eligible person is a project proponent of a registered biodiversity project; and

                     (b)  a biodiversity certificate has been issued in respect of the project (whether or not the certificate remains in force); and

                     (c)  the protocol determination that covers the project imposes a requirement on the project proponent of the project for the purposes of subsection 45(3); and

                     (d)  the eligible person, or any other project proponent for the project, fails to comply with the requirement.

Civil penalty:          2,000 penalty units.

             (2)  An eligible person is liable to a civil penalty if:

                     (a)  the eligible person is a project proponent of a registered biodiversity project; and

                     (b)  a biodiversity certificate has been issued in respect of the project (whether or not the certificate remains in force); and

                     (c)  the protocol determination that covers the project requires, for the purposes of paragraph 45(3)(b), the project proponent for the project to ensure that an activity is not carried out in the project area; and

                     (d)  the activity is carried out in the project area (by the project proponent or any other person).

Civil penalty:          2,000 penalty units.

             (3)  Subsection (2) does not apply if the eligible person takes all reasonable steps to ensure that the activity is not carried out in the project area.

Note:          A person who wishes to rely on subsection (3) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection: see section 96 of the Regulatory Powers Act.

47  Procedure for making a protocol determination

             (1)  In deciding whether to make a protocol determination, the Agriculture Minister:

                     (a)  must have regard to the following:

                              (i)  whether the determination complies with the biodiversity integrity standards;

                             (ii)  any advice that the Agriculture Biodiversity Stewardship Market Advisory Committee has given to the Agriculture Minister under subsection 54(2) in relation to the making of the determination; and

                     (b)  may have regard to the following:

                              (i)  whether significant adverse environmental, agricultural, economic or social impacts are likely to arise from the carrying out of the kind of project that the determination covers;

                             (ii)  such other matters (if any) as the Agriculture Minister considers relevant.

             (2)  The Agriculture Minister must not make a protocol determination if the Agriculture Biodiversity Stewardship Market Advisory Committee has advised the Agriculture Minister under subsection 54(2) that the determination does not comply with one or more of the biodiversity integrity standards.

Advice given by the Agriculture Biodiversity Stewardship Market Advisory Committee

             (3)  Before making a protocol determination, the Agriculture Minister must request the Agriculture Biodiversity Stewardship Market Advisory Committee to advise the Agriculture Minister about whether the Agriculture Minister should make the determination.

Note:          The Agriculture Biodiversity Stewardship Market Advisory Committee must have regard to certain matters in giving advice to the Agriculture Minister (see section 54).

             (4)  If the Agriculture Minister decides:

                     (a)  to make a protocol determination; or

                     (b)  not to make a protocol determination;

the Agriculture Minister must:

                     (c)  cause a copy of any advice given by the Agriculture Biodiversity Stewardship Market Advisory Committee under subsection 54(2) in relation to the determination to be published on the Agriculture Department’s website; and

                     (d)  do so as soon as practicable after making the decision.

Variation and amendment etc. of protocol determination

             (5)  Subsection 33(3) of the Acts Interpretation Act 1901 does not apply to a protocol determination.

Note:          For variation and revocation of a protocol determination, see Subdivisions B and C of this Division.

Subdivision B—Variation of protocol determinations

48  Variation of protocol determinations

             (1)  The Agriculture Minister may, by legislative instrument, vary a protocol determination.

             (2)  In deciding whether to vary a protocol determination, the Agriculture Minister:

                     (a)  must have regard to the following:

                              (i)  whether the varied determination complies with the biodiversity integrity standards;

                             (ii)  any advice that the Agriculture Biodiversity Stewardship Market Advisory Committee has given to the Agriculture Minister under subsection 54(2) in relation to the varying of the determination; and

                     (b)  may have regard to the following:

                              (i)  whether significant adverse environmental, agricultural, economic or social impacts are likely to arise from the carrying out of the kind of project that the varied determination covers;

                             (ii)  such other matters (if any) as the Agriculture Minister considers relevant.

Advice given by the Agriculture Biodiversity Stewardship Market Advisory Committee

             (3)  Before varying a protocol determination, the Agriculture Minister must request the Agriculture Biodiversity Stewardship Market Advisory Committee to advise the Agriculture Minister about whether the Agriculture Minister should vary the determination.

Note 1:       The Agriculture Biodiversity Stewardship Market Advisory Committee must have regard to certain matters in giving advice to the Agriculture Minister (see section 54).

Note 2:       For variations of a minor nature, see subsection (6) of this section.

             (4)  The Agriculture Minister must not vary a protocol determination if the Agriculture Biodiversity Stewardship Market Advisory Committee has advised the Agriculture Minister under subsection 54(2) that the varied determination does not comply with one or more of the biodiversity integrity standards.

             (5)  If the Agriculture Minister decides:

                     (a)  to vary a protocol determination; or

                     (b)  not to vary a protocol determination;

the Agriculture Minister must:

                     (c)  cause a copy of any advice given by the Agriculture Biodiversity Stewardship Market Advisory Committee under subsection 54(2) in relation to the determination to be published on the Agriculture Department’s website; and

                     (d)  do so as soon as practicable after making the decision.

             (6)  Subsections (3), (4) and (5) do not apply to a variation if the variation is of a minor nature.

49  When variation takes effect

             (1)  A variation of a protocol determination takes effect:

                     (a)  on the day after the instrument varying the protocol determination is registered on the Federal Register of Legislation; or

                     (b)  if a later day is specified in the instrument—on that later day.

Effect of variation on existing registered biodiversity projects

             (2)  A variation of a protocol determination does not apply to a registered biodiversity project if the project’s registration is in effect at the time the variation takes effect.

Note:          However, a variation of a protocol determination will apply to an existing registered biodiversity project if the project’s registration is varied under rules made for the purposes of section 21 to change the protocol determination that covers the project.

Effect of variation on application for approval of registration

             (3)  If:

                     (a)  a variation of a protocol determination takes effect; and

                     (b)  at the time the variation takes effect, an application under section 12 for the Regulator to approve the registration of a biodiversity project has been made, and the Regulator has not decided to:

                              (i)  approve the registration; or

                             (ii)  refuse to approve the registration; and

                     (c)  the application proposes that the project is to be covered by the protocol determination;

then:

                     (d)  the protocol determination as varied applies to the application; and

                     (e)  if the biodiversity project is registered, the project is covered by the protocol determination as varied.

             (4)  The rules may provide for any of the following:

                     (a)  the Regulator to notify an eligible person that an application made by the eligible person, under this Act or an instrument made under this Act, is affected by a variation of a protocol determination, as mentioned in subsection (3);

                     (b)  the Regulator to give the eligible person an opportunity to withdraw or vary the application before the Regulator considers the application.

             (5)  If:

                     (a)  an application is withdrawn under rules made for the purposes of subsection (4); 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.

Subdivision C—Duration, expiry and revocation of protocol determinations

50  Duration of protocol determinations

             (1)  A protocol determination:

                     (a)  comes into force:

                              (i)  the day after it is registered on the Federal Register of Legislation; or

                             (ii)  if a later time is specified in the determination—at that later time; and

                     (b)  unless sooner revoked, remains in force for:

                              (i)  the period specified in the determination; or

                             (ii)  if a longer period is specified in relation to the determination in a legislative instrument made by the Agriculture Minister—that longer period; and

                     (c)  ceases to have effect at the end of the period mentioned in paragraph (1)(b).

             (2)  If a protocol determination expires, this Act does not prevent the Agriculture Minister from making a fresh protocol determination in the same terms as the expired determination.

Sunsetting

             (3)  To avoid doubt, nothing in this section affects the operation of Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003.

Note:          However, see section 52 (effect of protocol determination ceasing to have effect) of this Act.

51  Revocation of protocol determinations

             (1)  The Agriculture Minister may, by legislative instrument, revoke a protocol determination.

             (2)  Before revoking a protocol determination, the Agriculture Minister must request the Agriculture Biodiversity Stewardship Market Advisory Committee to advise the Agriculture Minister about whether the Agriculture Minister should revoke the determination.

Note:          The Agriculture Biodiversity Stewardship Market Advisory Committee must have regard to certain matters in giving advice to the Agriculture Minister (see section 54).

             (3)  In deciding whether to revoke a protocol determination, the Agriculture Minister must have regard to the following:

                     (a)  whether the determination complies with the biodiversity integrity standards;

                     (b)  the advice given by the Agriculture Biodiversity Stewardship Market Advisory Committee under subsection 54(2);

                     (c)  such other matters (if any) as the Agriculture Minister considers relevant.

             (4)  If the Agriculture Minister decides:

                     (a)  to revoke a protocol determination; or

                     (b)  not to revoke a protocol determination;

the Agriculture Minister must, as soon as practicable after making the decision, cause a copy of the advice given by the Agriculture Biodiversity Stewardship Market Advisory Committee under subsection 54(2) in relation to the determination to be published on the Agriculture Department’s website.

52  Effect of protocol determination ceasing to have effect—existing registered biodiversity projects

             (1)  This section applies to a registered biodiversity project if the protocol determination that covers the project ceases to have effect (whether under this Subdivision or otherwise).

             (2)  Despite the cessation, the protocol determination continues to cover the registered biodiversity project as if it had not ceased.

Note 1:       For example, if the protocol determination that covers a registered biodiversity project is repealed by Part 4 (sunsetting) of the Legislation Act 2003, the determination would continue to cover that project. However, no new biodiversity projects could be registered on the basis of the repealed determination.

Note 2:       This section is subject to subsection 21(2) (voluntary variation of registration of biodiversity project—changes in project area or protocol determination).

53  Effect of protocol determination ceasing to have effect—applications for registration

             (1)  This section applies to an application under section 12 for the Regulator to approve the registration of a biodiversity project if the protocol determination specified in the application under paragraph 13(2)(c) ceases to have effect (whether under this Subdivision or otherwise).

             (2)  The Regulator must refuse the application.

             (3)  The rules may provide for any of the following:

                     (a)  the Regulator to notify the applicant that the Regulator proposes to refuse the application under subsection (2);

                     (b)  the Regulator to give the applicant an opportunity to withdraw or vary the application before the Regulator refuses the application.

             (4)  If:

                     (a)  an application is withdrawn under rules made for the purposes of subsection (3); 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.

Subdivision D—Advice about making, varying or revoking protocol determinations

54  Advice by the Agriculture Biodiversity Stewardship Market Advisory Committee

Scope

             (1)  This section applies if the Agriculture Minister requests the Agriculture Biodiversity Stewardship Market Advisory Committee:

                     (a)  under subsection 47(3), to give advice about whether the Agriculture Minister should make a protocol determination; or

                     (b)  under subsection 48(3), to give advice about whether the Agriculture Minister should vary a protocol determination; or

                     (c)  under subsection 51(2), to give advice about whether the Agriculture Minister should revoke a protocol determination.

Committee to give advice

             (2)  The Agriculture Biodiversity Stewardship Market Advisory Committee must give the requested advice to the Agriculture Minister.

Note:          The Committee must undertake public consultation before giving advice about making or varying a protocol determination (see section 56).

             (3)  If the requested advice relates to whether the Agriculture Minister should make a protocol determination, the Agriculture Biodiversity Stewardship Market Advisory Committee must include in the advice the Committee’s opinion on whether the proposed determination complies with the biodiversity integrity standards.

             (4)  If the requested advice relates to whether the Agriculture Minister should vary a protocol determination, the Agriculture Biodiversity Stewardship Market Advisory Committee must include in the advice the Committee’s opinion on whether the determination as proposed to be varied complies with the biodiversity integrity standards.

Committee must have regard to certain matters

             (5)  In giving the requested advice to the Agriculture Minister, the Agriculture Biodiversity Stewardship Market Advisory Committee must have regard to the following:

                     (a)  the biodiversity integrity standards;

                     (b)  any relevant matters specified in a direction in force under section 55;

                     (c)  any relevant advice given by the Regulator to the Committee.

             (6)  Subsection (5) does not, by implication, limit the matters to which the Agriculture Biodiversity Stewardship Market Advisory Committee may have regard.

55  Additional matters for the Agriculture Biodiversity Stewardship Market Advisory Committee to take into account

                   The Agriculture Minister may, by legislative instrument, direct the Agriculture Biodiversity Stewardship Market Advisory Committee to do any or all of the following:

                     (a)  have regard to one or more specified matters in giving advice about the making of a protocol determination;

                     (b)  have regard to one or more specified matters in giving advice about the variation of a protocol determination;

                     (c)  have regard to one or more specified matters in giving advice about the revocation of a protocol determination.

Note:          Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the direction (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act).

Subdivision E—Consultation by the Agriculture Biodiversity Stewardship Market Advisory Committee

56  Consultation by the Agriculture Biodiversity Stewardship Market Advisory Committee

             (1)  The Agriculture Biodiversity Stewardship Market Advisory Committee must not advise the Agriculture Minister to make or vary a protocol determination unless the Committee has first:

                     (a)  published on the Agriculture Department’s website:

                              (i)  a detailed outline of the proposed determination or variation, as the case may be; and

                             (ii)  a notice inviting the public to make a submission to the Committee on the detailed outline by a specified time limit; and

                     (b)  considered any submissions that were received within that time limit.

             (2)  The time limit must be 28 days after the notice is published.

             (3)  However, the time limit may be shorter than 28 days after the notice is published, so long as:

                     (a)  the Agriculture Biodiversity Stewardship Market Advisory Committee considers that the time limit is appropriate in the circumstances; and

                     (b)  the time limit is not shorter than 14 days after the notice is published.

Publication of submissions

             (4)  The Agriculture Biodiversity Stewardship Market Advisory Committee must publish on the Agriculture Department’s website any submissions under subsection (1) received within the time limit referred to in subparagraph (1)(a)(ii).

             (5)  However, the Agriculture Biodiversity Stewardship Market Advisory Committee must not publish a particular submission made by a person if the person has requested the Committee not to publish the submission on the ground that publication of the submission could reasonably be expected to substantially prejudice:

                     (a)  the commercial interests of the person or another person; or

                     (b)  a biodiversity outcome.

             (6)  A request under subsection (5) must:

                     (a)  be in writing; and

                     (b)  be in a form approved, in writing, by the Committee.

Division 3—Biodiversity integrity standards

57  Biodiversity integrity standards

             (1)  For the purposes of this Act, a protocol determination complies with the biodiversity integrity standards if:

                     (a)  a biodiversity project carried out in accordance with the protocol determination should result in enhancement or protection of biodiversity that would be unlikely to occur if the project was not carried out; and

                     (b)  a biodiversity project carried out in accordance with the protocol determination should be designed to achieve a biodiversity outcome that can be verified; and

                     (c)  any statements or information that could be included in:

                              (i)  an entry in the Register for a biodiversity project covered by the protocol determination; or

                             (ii)  a biodiversity certificate issued in relation to a biodiversity project covered by the protocol determination;

                            would be supported by clear and convincing evidence; and

                     (d)  to the extent to which any statements or information referred to in paragraph (c) would involve an estimate, projection or assumption—the estimate, projection or assumption would be reasonably certain; and

                     (e)  the protocol determination meets such other standards (if any) as are prescribed by the rules.

             (2)  Paragraph (1)(e) is not limited by the other paragraphs in subsection (1).

Part 5—Biodiversity certificates

Division 1—Introduction

58  Simplified outline of this Part

Division 2—Issue of biodiversity certificates

59  Application for biodiversity certificate

             (1)  The project proponent of a registered biodiversity project may apply to the Regulator for the Regulator to issue to the project proponent a biodiversity certificate in respect of the registered biodiversity project.

             (2)  The application may only be made:

                     (a)  if a biodiversity certificate has not previously been issued in respect of the registered biodiversity project; and

                     (b)  if the conditions (if any) set out under subparagraph 45(1)(d)(i) in the protocol determination that covers the registered biodiversity project are met; and

                     (c)  after the time worked out in accordance with provisions of that protocol determination made for the purposes of subparagraph 45(1)(d)(ii); and

                     (d)  if the conditions (if any) set out in the rules for the purposes of this paragraph are met.

60  Form of application

             (1)  An application under section 59 in relation to a registered biodiversity project must:

                     (a)  be in writing; and

                     (b)  be in a form approved, in writing, by the Regulator; and

                     (c)  set out the account number of an account in the Register of the applicant that should be specified in the certificate; and

                     (d)  be accompanied by such information as is specified in the rules; and

                     (e)  be accompanied by such information as is specified in the protocol determination that covers the biodiversity project; and

                      (f)  if, under the rules, the application is subject to audit under this Act—be accompanied by an audit report that is:

                              (i)  prescribed by the rules; and

                             (ii)  prepared by a registered greenhouse and energy auditor who has been appointed as an audit team leader for the purpose; and

                     (g)  be accompanied by the biodiversity project report mentioned in section 89; and

                     (h)  be accompanied by such other documents (if any) as are specified in the rules; and

                      (i)  be accompanied by such other documents (if any) as are specified in the protocol determination that covers the biodiversity project; and

                      (j)  be accompanied by the fee (if any) specified in the rules.

             (2)  The approved form of application may provide for verification by statutory declaration of statements in applications.

             (3)  A fee specified under paragraph (1)(j) must not be such as to amount to taxation.

61  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.

62  Issue of biodiversity certificate

Scope

             (1)  This section applies if an application under section 59 has been made for the issue of a biodiversity certificate in respect of a registered biodiversity project.

Issue of certificate

             (2)  If the Regulator is satisfied that:

                     (a)  the applicant passes the fit and proper person test; and

                     (b)  the applicant is the project proponent for the project; and

                     (c)  if the registration of the registered biodiversity project is subject to a condition under section 18 (obtaining regulatory approvals)—that condition has been met; and

                     (d)  if the registration of the registered biodiversity project is subject to a condition under section 19 (obtaining consents from eligible interest holders)—that condition has been met; and

                     (e)  if the rules specify one or more other eligibility requirements for the purposes of this paragraph—those requirements are met; and

                      (f)  if the protocol determination that covers the project specifies one or more other eligibility requirements for the purposes of paragraph 45(1)(e)—those requirements are met;

the Regulator must issue a biodiversity certificate to the applicant in respect of the project by making an entry in the account in the Register identified in the application under paragraph 60(1)(c).

Note 1:       For the fit and proper person test, see section 87.

Note 2:       For review of decisions, see Part 19.

             (3)  A biodiversity certificate must set out the matters specified in the rules.

Timing

             (4)  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 61(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.

Notice

             (5)  The Regulator must give the applicant notice in writing if the Regulator:

                     (a)  decides to issue a biodiversity certificate to the applicant; or

                     (b)  decides not to issue a biodiversity certificate to the applicant.

63  Basis on which biodiversity certificates are issued

                   A biodiversity certificate is issued on the basis that:

                     (a)  the certificate may be varied in accordance with rules made for the purposes of paragraph 23(1)(k) or 26(1)(k); and

                     (b)  the certificate may be required to be relinquished under Part 12; and

                     (c)  the certificate may be cancelled, revoked, terminated or varied, or required to be relinquished, by or under later legislation; and

                     (d)  no compensation is payable if the certificate is so cancelled, revoked, terminated or varied, or required to be relinquished.

Division 3—Property in biodiversity certificates

64  A biodiversity certificate is personal property

                   A biodiversity certificate is personal property and, subject to section 66, is transmissible by assignment, by will and by devolution by operation of law.

65  Ownership of biodiversity certificate

             (1)  The holder of a biodiversity certificate:

                     (a)  is the legal owner of the certificate; and

                     (b)  may, subject to this Act, deal with the certificate as its legal owner and give good discharges for any consideration for any such dealing.

Note:          The holder of a biodiversity certificate is the person recorded in the Register as the holder of the certificate (see the definition of holder in section 7).

             (2)  Subsection (1) only protects a person who deals with the holder of the certificate as a purchaser:

                     (a)  in good faith for value; and

                     (b)  without notice of any defect in the title of the holder.

66  Transmission of biodiversity certificates

                   A transmission of a biodiversity certificate, whether by assignment or by any other lawful means, is of no force until the biodiversity certificate has been transferred, in accordance with rules made for the purposes of section 132:

                     (a)  from an account in the Register held by the transferor; and

                     (b)  into an account in the Register held by the transferee.

67  Registration of equitable interests in relation to biodiversity certificates

             (1)  The rules may make provision for or in relation to the registration in the Register of equitable interests in relation to biodiversity certificates.

             (2)  Subsection (1) does not apply to an equitable interest that is a security interest within the meaning of the Personal Property Securities Act 2009, and to which that Act applies.

68  Equitable interests in relation to biodiversity certificates

             (1)  This Act does not affect:

                     (a)  the creation of; or

                     (b)  any dealings with; or

                     (c)  the enforcement of;

equitable interests in relation to a biodiversity certificate.

             (2)  This section is enacted for the avoidance of doubt.

Part 6—Purchase of biodiversity certificates by the Commonwealth

Division 1—Introduction

69  Simplified outline of this Part

Division 2—Biodiversity conservation contracts

70  Biodiversity conservation contracts

             (1)  The Secretary may enter into contracts, on behalf of the Commonwealth, for the purchase by the Commonwealth of biodiversity certificates.

             (2)  It is immaterial whether the biodiversity certificates are in existence when the contract is entered into.

             (3)  For the purposes of this Act, a contract entered into under subsection (1) is to be known as a biodiversity conservation contract.

             (4)  For the purposes of this Act, if the Secretary enters into a biodiversity conservation contract with a person, the person is a biodiversity conservation contractor.

71  When biodiversity conservation contracts may be entered into

             (1)  The Secretary may enter into a biodiversity conservation contract under section 70 as the result of a biodiversity conservation purchasing process conducted by the Secretary under section 75.

             (2)  The Secretary must not enter into a biodiversity conservation contract under section 70 unless the biodiversity conservation contractor for the contract is a project proponent for a registered biodiversity project (which need not be the project to which a biodiversity certificate to be purchased under the contract relates).

             (3)  The rules may prescribe further circumstances in which the Secretary must not enter into a biodiversity conservation contract under section 70.

72  Secretary has powers etc. of the Commonwealth

             (1)  The Secretary, on behalf of the Commonwealth, has all the rights, responsibilities, duties and powers of the Commonwealth in relation to the Commonwealth’s capacity as a party to a biodiversity conservation contract.

             (2)  Without limiting subsection (1):

                     (a)  an amount payable by the Commonwealth under a biodiversity conservation contract is to be paid by the Secretary on behalf of the Commonwealth; and

                     (b)  an amount payable to the Commonwealth under a biodiversity conservation contract is to be paid to the Secretary on behalf of the Commonwealth; and

                     (c)  the Secretary may institute an action or proceeding on behalf of the Commonwealth in relation to a matter that concerns a biodiversity conservation contract.

73  Conferral of powers on the Secretary

                   The Secretary may exercise a power conferred on the Secretary by a biodiversity conservation contract.

Division 3—Biodiversity conservation purchasing processes

74  Biodiversity conservation purchasing process

                   For the purposes of this Act, a biodiversity conservation purchasing process means:

                     (a)  a tender process; or

                     (b)  a reverse auction; or

                     (c)  any other process;

for the purchase by the Commonwealth of biodiversity certificates. (It is immaterial whether the certificates are in existence when the process is conducted.)

75  Conduct of biodiversity conservation purchasing processes

             (1)  The Secretary may, on behalf of the Commonwealth, conduct one or more biodiversity conservation purchasing processes.

             (2)  In exercising the power conferred by subsection (1), the Secretary must have regard to:

                     (a)  the principles set out in subsection (3); and

                     (b)  such other matters (if any) as are specified in the rules.

Principles for conduct of biodiversity conservation purchasing processes

             (3)  The principles for conducting a biodiversity conservation purchasing process are that the process should:

                     (a)  facilitate the Commonwealth receiving value for money when purchasing biodiversity certificates; and

                     (b)  maximise the protection or enhancement of biodiversity that results from the process; and

                     (c)  be conducted in a manner that ensures that administrative costs are reasonable; and

                     (d)  be conducted in a manner that ensures the integrity of the process; and

                     (e)  encourage competition; and

                      (f)  provide for fair and ethical treatment of all participants in the process.

             (4)  To avoid doubt, the mere fact that a person is a project proponent for a registered biodiversity project does not automatically entitle the person to participate in a biodiversity conservation purchasing process.

Division 4—Miscellaneous

76  Rules may provide for certain matters relating to purchased biodiversity certificates

                   The rules may make provision for and in relation to any or all of the following matters in respect of biodiversity certificates purchased by the Commonwealth under biodiversity conservation contracts:

                     (a)  transferring purchased certificates to a specified Register account kept for the Commonwealth;

                     (b)  prohibiting or restricting the transfer of biodiversity certificates from such an account;

                     (c)  cancelling biodiversity certificates for which there are entries in such an account.

77  Certain instruments relating to Commonwealth procurement are not applicable

                   An instrument made under section 105B of the Public Governance, Performance and Accountability Act 2013 does not apply in relation to the functions and powers of the Secretary under section 70 or 75 of this Act.

Note:          Section 105B of the Public Governance, Performance and Accountability Act 2013 provides for the making of instruments relating to procurement.

78  Biodiversity conservation contracts are not instruments made under this Act

                   To avoid doubt, a biodiversity conservation contract is taken not to be an instrument made under this Act.

Part 7—Interests in land

Division 1—Introduction

79  Simplified outline of this Part

Division 2—Eligible interest in an area of land

80  Eligible interest in an area of land—Torrens system land

Scope

             (1)  This section applies to an area of land if the area is Torrens system land.

Eligible interest

             (2)  For the purposes of this Act, if:

                     (a)  a person holds an estate in fee simple, or any other legal estate or interest, in the whole or a part of the area of land; and

                     (b)  the estate or interest is registered under a Torrens system of registration;

the estate or interest is an eligible interest held by the person in the area of land.

             (3)  For the purposes of this Act, if:

                     (a)  under subsection (2), a person holds an eligible interest in the area of land; and

                     (b)  another person:

                              (i)  is a mortgagee of the eligible interest, where the mortgage is registered under a Torrens system of registration; or

                             (ii)  a chargee of the eligible interest, where the charge is registered under a Torrens system of registration;

the mortgage or charge is an eligible interest held by the other person in the area of land.

             (4)  For the purposes of this Act, if the area of land:

                     (a)  is Crown land; and

                     (b)  is not exclusive possession native title land; and

                     (c)  is not land rights land;

the Crown lands Minister of the State or Territory holds an eligible interest in the area of land.

             (5)  The rules may provide that, for the purposes of this Act, a person specified in, or ascertained in accordance with, the rules holds an eligible interest in the area of land.

             (6)  For the purposes of this Act, if:

                     (a)  the area of land is land rights land; and

                     (b)  the area of land is not exclusive possession native title land; and

                     (c)  any of the following subparagraphs applies to the area of land:

                              (i)  a lease is in force over the land, and the grant of the lease 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;

                             (ii)  subparagraph (i) does not apply, and the land is held by the Commonwealth;

                            (iii)  subparagraph (i) does not apply, and the land is held by a statutory authority of the Commonwealth;

then:

                     (d)  if subparagraph (c)(i) applies—the Minister who administers the law mentioned in that subparagraph holds an eligible interest in the area of land; or

                     (e)  if subparagraph (c)(ii) applies—the Minister who administers the Aboriginal Land Rights (Northern Territory) Act 1976 holds an eligible interest in the area of land; or

                      (f)  if subparagraph (c)(iii) applies—the Minister who administers the Act that establishes the statutory authority holds an eligible interest in the area of land.

             (7)  For the purposes of this Act, if:

                     (a)  the area of land is land rights land in a State or Territory; and

                     (b)  the area of land is not exclusive possession native title land; and

                     (c)  none of the subparagraphs of paragraph (6)(c) applies to the area of land; and

                     (d)  the area of land is not freehold land rights land;

the Crown lands Minister of the State or Territory holds an eligible interest in the area of land.

81  Eligible interest in an area of land—Crown land that is not Torrens system land

Scope

             (1)  This section applies to an area of land in a State or Territory if the area of land:

                     (a)  is Crown land; and

                     (b)  is not Torrens system land.

Eligible interest

             (2)  For the purposes of this Act, if the area of land is neither:

                     (a)  exclusive possession native title land; nor

                     (b)  land rights land;

the Crown lands Minister of the State or Territory holds an eligible interest in the area of land.

             (3)  For the purposes of this Act, if:

                     (a)  a person (other than the State or Territory) holds a legal estate or interest (the relevant estate or interest) in the whole or a part of the area of land; and

                     (b)  any of the following conditions are satisfied:

                              (i)  the relevant estate or interest came into existence as a result of a grant by the Crown in any capacity;

                             (ii)  the relevant estate or interest was derived from an estate or interest that came into existence as a result of a grant by the Crown in any capacity;

                            (iii)  the relevant estate or interest was created by or under a law of the Commonwealth, a State or a Territory;

                            (iv)  the relevant estate or interest was derived from an estate or interest that was created by or under a law of the Commonwealth, a State or a Territory;

the relevant estate or interest is an eligible interest held by the person in the area of land.

             (4)  For the purposes of this Act, if:

                     (a)  under subsection (3), a person holds an eligible interest in the area of land; and

                     (b)  another person:

                              (i)  is a mortgagee of the eligible interest; or

                             (ii)  is a chargee of the eligible interest;

the mortgage or charge is an eligible interest held by the other person in the area of land.

             (5)  The rules may provide that, for the purposes of this Act, a person specified in, or ascertained in accordance with, the rules holds an eligible interest in the area of land.

             (6)  For the purposes of this Act, if:

                     (a)  the area of land is land rights land; and

                     (b)  the area of land is not exclusive possession native title land; and

                     (c)  any of the following subparagraphs applies to the area of land:

                              (i)  a lease is in force over the land, and the grant of the lease 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;

                             (ii)  subparagraph (i) does not apply, and the land is held by the Commonwealth;

                            (iii)  subparagraph (i) does not apply, and the land is held by a statutory authority of the Commonwealth;

then:

                     (d)  if subparagraph (c)(i) applies—the Minister who administers the law mentioned in that subparagraph holds an eligible interest in the area of land; or

                     (e)  if subparagraph (c)(ii) applies—the Minister who administers the Aboriginal Land Rights (Northern Territory) Act 1976 holds an eligible interest in the area of land; or

                      (f)  if subparagraph (c)(iii) applies—the Minister who administers the Act that establishes the statutory authority holds an eligible interest in the area of land.

             (7)  For the purposes of this Act, if:

                     (a)  the area of land is land rights land in a State or Territory; and

                     (b)  the area of land is not exclusive possession native title land; and

                     (c)  none of the subparagraphs of paragraph (6)(c) applies to the area of land; and

                     (d)  the area of land is not freehold land rights land;

the Crown lands Minister of the State or Territory holds an eligible interest in the area of land.

82  Eligible interest in an area of land—native title land

Scope

             (1)  This section applies to an area of land if:

                     (a)  the area of land is native title land; and

                     (b)  there is a registered native title body corporate for the area of land.

Eligible interest

             (2)  For the purposes of this Act, the registered native title body corporate holds an eligible interest in the area of land.

Division 3—Freehold land rights land

83  Regulator to notify Crown lands Minister of approval of registration of biodiversity project

Scope

             (1)  This section applies if:

                     (a)  the Regulator approves under section 16 the registration of a biodiversity project; and

                     (b)  the project area is, or any of the project areas are, freehold land rights land in a particular State or Territory; and

                     (c)  the project area is, or any of the project areas are, Crown land; and

                     (d)  the project area is not, or the project areas are not, Torrens system land.

Notification

             (2)  As soon as practicable after giving the approval, the Regulator must notify the Crown lands Minister of the State or Territory, in writing, of the approval.

Division 4—Entries in title registers

84  Entries in title registers—general

Scope

             (1)  This section applies to a registered biodiversity project.

Entries

             (2)  The relevant land registration official may make such entries or notations in or on registers or other documents kept by the official (in electronic form or otherwise) as the official thinks appropriate for the purposes of drawing the attention of persons to:

                     (a)  the existence of the registered biodiversity project; and

                     (b)  the fact that requirements may arise under this Act in relation to the project; and

                     (c)  such other matters (if any) relating to this Act as the official considers appropriate.

85  Entries in title registers—biodiversity maintenance areas

Scope

             (1)  This section applies to one or more areas of land if those areas of land are biodiversity maintenance areas declared under a biodiversity maintenance declaration.

Note:          See Part 13 (biodiversity maintenance declarations).

Entries

             (2)  The relevant land registration official may make such entries or notations in or on registers or other documents kept by the official (in electronic form or otherwise) as the official thinks appropriate for the purposes of drawing the attention of persons to the biodiversity maintenance declaration.

Part 8—Fit and proper person test

  

86  Simplified outline of this Part

87  Fit and proper person test

Individual

             (1)  For the purposes of this Act, an individual passes the fit and proper person test if:

                     (a)  the individual is a fit and proper person, having regard to:

                              (i)  whether any of the events specified in the rules have happened in relation to the individual; and

                             (ii)  such other matters (if any) as are specified in the rules; and

                     (b)  the individual is not an insolvent under administration.

Body corporate

             (2)  For the purposes of this Act, a body corporate passes the fit and proper person test if:

                     (a)  the body corporate is a fit and proper person, having regard to:

                              (i)  whether any of the events specified in the rules have happened in relation to the body corporate; and

                             (ii)  whether any of the events specified in the rules have happened in relation to an executive officer of the body corporate; and

                            (iii)  such other matters (if any) as are specified in the rules; and

                     (b)  the body corporate is not a Chapter 5 body corporate.

Trust

             (3)  For the purposes of this Act, a trust passes the fit and proper person test if:

                     (a)  for a trust with one trustee—the trustee passes the fit and proper person test under subsection (1) or (2); or

                     (b)  for a trust with more than one trustee—each trustee passes the fit and proper person test under subsection (1) or (2).

Spent convictions

             (4)  Rules made for the purposes of subparagraph (1)(a)(i) or (ii) or (2)(a)(i), (ii) or (iii) must not affect the operation of Part VIIC of the Crimes Act 1914.

Note:          Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.

Part 9—Reporting and notification requirements

Division 1—Introduction

88  Simplified outline of this Part

Division 2—Reporting requirements

89  Biodiversity project reports—first report

             (1)  This section applies if the project proponent for a registered biodiversity project applies under section 59 for the Regulator to issue a biodiversity certificate in respect of the project.

             (2)  The application must be accompanied by a written report (a biodiversity project report), in accordance with section 91, about the project.

Note:          See paragraph 60(1)(g).

             (3)  The report must relate to a period (the reporting period for the report) that:

                     (a)  begins when the project was registered; and

                     (b)  ends within 6 months before the application is made.

90  Biodiversity project reports—subsequent reports

             (1)  This section applies to a registered biodiversity project if the Regulator has issued a biodiversity certificate in relation to the project (whether or not the certificate is in effect).

             (2)  The project proponent for the project must give the Regulator a written report (a biodiversity project report) in accordance with section 91 about the project for a period that:

                     (a)  is expressed to be the reporting period for the report; and

                     (b)  begins immediately after the end of the previous reporting period for a report under this section, or section 89, in relation to the project; and

                     (c)  subject to paragraph (d)—ends at least 1 month, and not more than 5 years, after it begins; and

                     (d)  ends no later than the end of the activity period for the project.

Civil penalty provision

             (3)  The project proponent for the project contravenes this subsection if:

                     (a)  subsection (2) requires the project proponent to give a biodiversity project report for a reporting period; and

                     (b)  the project proponent does not comply with the requirement before the end of the period mentioned in paragraph 91(1)(g).

Civil penalty:          200 penalty units.

             (4)  For the purposes of subsection (3), assume that the reporting period ends at the earlier of the following times:

                     (a)  5 years after the reporting period begins;

                     (b)  the end of the activity period for the project.

             (5)  The maximum civil penalty for each day that a contravention of subsection (3) continues is 5% of the maximum civil penalty that can be imposed in respect of that contravention.

Note:          Subsection (3) is a continuing civil penalty provision under section 93 of the Regulatory Powers Act.

91  Requirements for biodiversity project reports

             (1)  A biodiversity project report about a registered biodiversity project for a reporting period must:

                     (a)  be given in the manner and form prescribed by the rules; and

                     (b)  set out the information (if any) specified in the rules; and

                     (c)  set out the information (if any) specified in the protocol determination that covers the project; and

                     (d)  if, under the rules, the biodiversity project report is subject to audit under this Act—be accompanied by an audit report that is:

                              (i)  prescribed by the rules; and

                             (ii)  prepared by a registered greenhouse and energy auditor who has been appointed as an audit team leader for the purpose; and

                     (e)  be accompanied by such other documents (if any) as are specified in the rules; and

                      (f)  be accompanied by such other documents (if any) as are specified in the protocol determination that covers the project; and

                     (g)  for a biodiversity project report under section 90 (subsequent biodiversity project reports)—be given to the Regulator within:

                              (i)  6 months after the end of the reporting period; or

                             (ii)  if a greater number of months is specified in the protocol determination that covers the project—that greater number of months after the end of the reporting period.

             (2)  To avoid doubt, a biodiversity project report for a period may deal with matters that occur before the start of the period.

             (3)  Information specified in rules made for the purposes of paragraph (1)(b) or a provision of a protocol determination made for the purposes of paragraph (1)(c) may relate to a matter arising before, during or after the reporting period.

             (4)  A document specified in rules made for the purposes of paragraph (1)(e) or a provision of a protocol determination made for the purposes of paragraph (1)(f) may relate to a matter arising before, during or after the reporting period.

Division 3—Notification requirements

92  Notification requirement—project proponent ceases to have right to carry out project

Scope

             (1)  This section applies to an eligible person if:

                     (a)  the eligible person is the project proponent of a registered biodiversity project that has one project proponent; and

                     (b)  the eligible person ceases to have a right that is necessary for the project to be carried out.

             (2)  This section also applies to an eligible person if:

                     (a)  the eligible person is one of the project proponents of a registered biodiversity project that has multiple project proponents; and

                     (b)  any of the project proponents ceases to have a right that is necessary for the project to be carried out; and

                     (c)  the cessation results in no project proponent having that right.

Notification

             (2)  The eligible person must, within 90 days after the cessation occurs, notify the Regulator, in writing, of the cessation.

Civil penalty:          200 penalty units.

             (3)  The maximum civil penalty for each day that a contravention of subsection (2) continues is 5% of the maximum civil penalty that can be imposed in respect of that contravention.

Note:          Subsection (2) is a continuing civil penalty provision under section 93 of the Regulatory Powers Act.

93  Notification requirement—withdrawal or cessation of regulatory approval

Scope

             (1)  This section applies to the project proponent of a registered biodiversity project if a regulatory approval required for the project to be carried out:

                     (a)  is withdrawn; or

                     (b)  otherwise ceases to have effect for any reason.

Notification

             (2)  The project proponent must, within 90 days after the withdrawal or cessation occurs, notify the Regulator, in writing, of the withdrawal or cessation.

Civil penalty:          200 penalty units.

             (3)  The maximum civil penalty for each day that a contravention of subsection (2) continues is 5% of the maximum civil penalty that can be imposed in respect of that contravention.

Note:          Subsection (2) is a continuing civil penalty provision under section 93 of the Regulatory Powers Act.

94  Notification requirement—death of project proponent

Scope

             (1)  This section applies if a person who is the project proponent for a registered biodiversity project dies.

Notification

             (2)  The person’s legal personal representative must, within 90 days after the death, notify the Regulator, in writing, of the death.

Civil penalty:          60 penalty units.

             (3)  The maximum civil penalty for each day that a contravention of subsection (2) continues is 5% of the maximum civil penalty that can be imposed in respect of that contravention.

Note:          Subsection (2) is a continuing civil penalty provision under section 93 of the Regulatory Powers Act.

95  Notification requirement—protocol determinations

Scope

             (1)  This section applies if:

                     (a)  there is a registered biodiversity project; and

                     (b)  under the protocol determination that covers the project, the project proponent for the project is subject to a requirement to notify the Regulator of one or more matters relating to the project.

Notification

             (2)  The project proponent must comply with the requirement.

Civil penalty:          60 penalty units.

             (3)  The maximum civil penalty for each day that a contravention of subsection (2) continues is 5% of the maximum civil penalty that can be imposed in respect of that contravention.

Note:          Subsection (2) is a continuing civil penalty provision under section 93 of the Regulatory Powers Act.

96  Notification requirement—reversal of biodiversity outcome

Scope

             (1)  This section applies if:

                     (a)  there is a registered biodiversity project; and

                     (b)  the project proponent for the project becomes aware of a significant reversal of the biodiversity outcome to which the project relates.

Note:          See section 98.

Notification

             (2)  The project proponent must notify the Regulator of the reversal within 60 days after the project proponent becomes aware of the reversal.

Civil penalty:          200 penalty units.

             (3)  The maximum civil penalty for each day that a contravention of subsection (2) continues is 5% of the maximum civil penalty that can be imposed in respect of that contravention.

Note:          Subsection (2) is a continuing civil penalty provision under section 93 of the Regulatory Powers Act.

97  Notification requirement—event or conduct that causes, or is likely to cause, reversal of biodiversity outcome

Scope

             (1)  This section applies if:

                     (a)  there is a registered biodiversity project; and

                     (b)  the project proponent for the project becomes aware of any of the following:

                              (i)  a natural disturbance that causes a significant reversal of the biodiversity outcome to which the project relates;

                             (ii)  a natural disturbance that is likely to cause a significant reversal of the biodiversity outcome to which the project relates;

                            (iii)  conduct engaged in by the project proponent for the project, or any other person, that causes a significant reversal of the biodiversity outcome to which the project relates;

                            (iv)  conduct engaged in by the project proponent for the project, or any other person, that is likely to cause a significant reversal of the biodiversity outcome to which the project relates.

Note:          See section 98.

Notification

             (2)  The project proponent must notify the Regulator of the matter mentioned in paragraph (1)(b) within 60 days after the project proponent becomes aware of the matter.

Civil penalty:          200 penalty units.

             (3)  The maximum civil penalty for each day that a contravention of subsection (2) continues is 5% of the maximum civil penalty that can be imposed in respect of that contravention.

Note:          Subsection (2) is a continuing civil penalty provision under section 93 of the Regulatory Powers Act.

98  Significant reversals in biodiversity outcomes—notification requirements

             (1)  The rules may prescribe circumstances in which, for the purposes of paragraphs 96(1)(b) and 97(1)(b):

                     (a)  there is taken to have been a reversal of a biodiversity outcome to which a registered biodiversity project relates; and

                     (b)  the reversal is taken to be significant, or not taken to be significant.

             (2)  This section does not limit section 114 (significant reversals in biodiversity outcomes—relinquishment requirements).

99  Notification requirement—event relevant to whether a project proponent passes the fit and proper person test

Scope

             (1)  This section applies to a project proponent of a registered biodiversity project if:

                     (a)  in a case where the project proponent is an individual:

                              (i)  an event set out in rules made for the purposes of subparagraph 87(1)(a)(i) happens in relation to the individual; or

                             (ii)  the individual becomes an insolvent under administration; and

                     (b)  in a case where the project proponent is a body corporate:

                              (i)  an event set out in rules made for the purposes of subparagraph 87(2)(a)(i) happens in relation to the body corporate; or

                             (ii)  the body corporate becomes a Chapter 5 body corporate; or

                            (iii)  an event set out in rules made for the purposes of subparagraph 87(2)(a)(ii) happens in relation to an executive officer of the body corporate; and

                     (c)  in a case where the project proponent is a trust:

                              (i)  an event mentioned in paragraph (a) of this subsection happens in relation to a trustee who is an individual; or

                             (ii)  an event mentioned in paragraph (b) of this subsection happens in relation to a trustee that is a body corporate.

For the purposes of subparagraphs (a)(i) and (b)(i) and (iii) of this subsection, disregard an event that consists of a breach of:

                     (d)  this Act or an instrument under this Act; or

                     (e)  a climate change law (within the meaning of the Clean Energy Regulator Act 2011).

Notification

             (2)  The project proponent must, within 90 days after the event, notify the Regulator, in writing, of the event.

Civil penalty:          200 penalty units.

             (3)  The maximum civil penalty for each day that a contravention of subsection (2) continues is 5% of the maximum civil penalty that can be imposed in respect of that contravention.

Note:          Subsection (2) is a continuing civil penalty provision under section 93 of the Regulatory Powers Act.

100  The rules may impose notification requirements

             (1)  The rules may make provision requiring the project proponent of a registered biodiversity project to notify the Regulator of a matter within a period specified in the rules.

             (2)  A matter specified in rules made for the purposes of subsection (1) must be relevant to the operation of this Act.

Notification

             (3)  If a person is subject to a requirement under rules made for the purposes of subsection (1), the person must comply with that requirement within the period specified in those rules.

Civil penalty:          60 penalty units.

             (4)  The maximum civil penalty for each day that a contravention of subsection (3) continues is 5% of the maximum civil penalty that can be imposed in respect of that contravention.

Note:          Subsection (3) is a continuing civil penalty provision under section 93 of the Regulatory Powers Act.

Part 10—Information‑gathering powers

  

101  Simplified outline of this Part

102  Regulator may obtain information or documents

Scope

             (1)  This section applies to a person if the Regulator believes on reasonable grounds that the person has information or a document that is relevant to the operation of this Act or the associated provisions.

Requirement

             (2)  The Regulator may, by written notice given to the person, require the person:

                     (a)  to give to the Regulator, within the period and in the manner and form specified in the notice, any such information; or

                     (b)  to produce to the Regulator, within the period and in the manner specified in the notice, any such documents; or

                     (c)  to make copies of any such documents and to produce to the Regulator, within the period and in the manner specified in the notice, those copies.

             (3)  A period specified under subsection (2) must not be shorter than 14 days after the notice is given.

Compliance

             (4)  A person must comply with a requirement under subsection (2) to the extent that the person is capable of doing so.

Civil penalty:          60 penalty units.

             (5)  The maximum civil penalty for each day that a contravention of subsection (4) continues is 5% of the maximum civil penalty that can be imposed in respect of that contravention.

Note:          Subsection (4) is a continuing civil penalty provision under section 93 of the Regulatory Powers Act.

No limitation

             (6)  This section is not limited by any other provision of this Act that relates to the powers of the Regulator to obtain information or documents.

103  Copying documents—compensation

                   A person is entitled to be paid by the Regulator, on behalf of the Commonwealth, reasonable compensation for complying with a requirement covered by paragraph 102(2)(c).

104  Copies of documents

             (1)  The Regulator may:

                     (a)  inspect a document or copy produced under subsection 102(2); and

                     (b)  make and retain copies of, or take and retain extracts from, such a document.

             (2)  The Regulator may retain possession of a copy of a document produced in accordance with a requirement covered by paragraph 102(2)(c).

105  Regulator may retain documents

             (1)  The Regulator may take, and retain for as long as is necessary, possession of a document produced under subsection 102(2).

             (2)  The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the Regulator to be a true copy.

             (3)  The certified copy must be received in all courts and tribunals as evidence as if it were the original.

             (4)  Until a certified copy is supplied, the Regulator must, at such times and places as the Regulator thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect and make copies of, or take extracts from, the document.

Part 11—Audits

  

106  Simplified outline of this Part

107  Compliance audits

Scope

             (1)  This section applies if:

                     (a)  a person is, or has been, the project proponent for a registered biodiversity project; and

                     (b)  the Regulator has reasonable grounds to suspect that the person has contravened, is contravening, or is proposing to contravene, this Act or the associated provisions.

Audit

             (2)  The Regulator may, by written notice given to the person, require the person to:

                     (a)  appoint as an audit team leader:

                              (i)  a registered greenhouse and energy auditor of the person’s choice; or

                             (ii)  if the Regulator specifies a registered greenhouse and energy auditor in the notice—that auditor; or

                            (iii)  if the Regulator specifies more than one registered greenhouse and energy auditor in the notice—any one of those auditors; and

                     (b)  arrange for the audit team leader to carry out an audit on one or more aspects of the person’s compliance with this Act or the associated provisions; and

                     (c)  arrange for the audit team leader to give the person a written report setting out the results of the audit; and

                     (d)  give the Regulator a copy of the audit report on or before the day specified in the notice.

Note:          For the conduct of an audit under this section, see section 75 of the National Greenhouse and Energy Reporting Act 2007.

             (3)  The notice must specify:

                     (a)  the type of audit to be carried out; and

                     (b)  the matters to be covered by the audit; and

                     (c)  the form of the audit report and the kinds of details it is to contain.

             (4)  A person must provide the audit team leader, and any persons assisting the audit team leader, with all reasonable facilities and assistance necessary for the effective exercise of the audit team leader’s duties under this Act.

Civil penalty:          60 penalty units.

             (5)  If the Regulator gives a person written notice under subsection (2), the person must comply with the requirements of the notice.

Civil penalty:          200 penalty units.

             (6)  The maximum civil penalty for each day that a contravention of subsection (5) continues after the day specified for the purposes of paragraph (2)(d) is 5% of the maximum civil penalty that can be imposed in respect of that contravention.

Note:          Subsection (5) is a continuing civil penalty provision under section 93 of the Regulatory Powers Act.

Reimbursement

             (7)  If:

                     (a)  the Regulator gives a person a notice under subsection (2); and

                     (b)  in complying with that notice, the person arranges for an audit team leader to carry out an audit on one or more aspects of the person’s compliance with this Act or the associated provisions; and

                     (c)  the audit report does not indicate that there is evidence of non‑compliance by the person with this Act or the associated provisions; and

                     (d)  the person requests the Regulator to reimburse the person for reasonable costs incurred by the person in complying with the notice; and

                     (e)  the Regulator is satisfied that the person would suffer financial hardship if the person were not reimbursed for those costs;

the Regulator may, on behalf of the Commonwealth, reimburse the person for those costs.

Note:          For review of decisions, see Part 19.

             (8)  A request under paragraph (7)(d) must:

                     (a)  be in writing; and

                     (b)  be in a form approved, in writing, by the Regulator; and

                     (c)  be accompanied by such information as is specified in the rules; and

                     (d)  be accompanied by such documents (if any) as are specified in the rules.

             (9)  The approved form of request may provide for verification by statutory declaration of statements in requests.

108  Other audits

Audit

             (1)  If a person is, or has been, the project proponent for a registered biodiversity project, the Regulator may appoint a registered greenhouse and energy auditor as an audit team leader to carry out an audit of the person’s compliance with one or more aspects of this Act or the associated provisions.

             (2)  The Regulator must give written notice to the person of a decision to appoint an audit team leader under subsection (1). The notice must:

                     (a)  specify the audit team leader; and

                     (b)  specify the period within which the audit is to be undertaken; and

                     (c)  specify the type of audit to be carried out; and

                     (d)  specify the matters to be covered by the audit; and

                     (e)  be given to the person at a reasonable time before the audit is to be undertaken.

Note:          For the conduct of an audit under this section, see section 75 of the National Greenhouse and Energy Reporting Act 2007.

             (3)  The person must provide the audit team leader, and any persons assisting the audit team leader, with all reasonable facilities and assistance necessary for the effective exercise of the audit team leader’s duties under this Act.

Civil penalty:          60 penalty units.

Part 12—Relinquishment requirements

Division 1—Introduction

109  Simplified outline of this Part

Division 2—Relinquishment notices

110  Relinquishment notice—false or misleading information

Scope

             (1)  This section applies to a person if:

                     (a)  a biodiversity certificate (the original biodiversity certificate) has been issued to the person in relation to a biodiversity project (whether or not the person still holds the certificate, and whether or not the certificate remains in effect); and

                     (b)  information was given by the person to the Regulator in connection with the project; and

                     (c)  the information was:

                              (i)  contained in an application under this Act or the rules; or

                             (ii)  given in connection with an application under this Act or the rules; or

                            (iii)  contained in a biodiversity project report; or

                            (iv)  contained in a notification under Division 3 of Part 9; and

                     (d)  the information was false or misleading in a material particular; and

                     (e)  the issue of the certificate was substantially attributable (whether directly or indirectly) to the false or misleading information.

Relinquishment notice

             (2)  The Regulator may give a relinquishment notice to the person in relation to the original biodiversity certificate.

Note:          For review of decisions, see Part 19.

111  Relinquishment notice—cancellation of registration of biodiversity project

Scope

             (1)  This section applies if:

                     (a)  a biodiversity certificate (the original biodiversity certificate) has been issued in relation to a biodiversity project (whether or not the certificate remains in effect); and

                     (b)  the registration of the project as a registered biodiversity project is cancelled under rules made for the purposes of any of the following provisions:

                              (i)  subsection 29(1) (eligibility requirements not met etc.);

                             (ii)  subsection 30(1) (project proponent ceases to pass the fit and proper person test);

                            (iii)  subsection 31(1) (project proponent ceases to exist etc.);

                            (iv)  subsection 32(1) (false or misleading information);

                             (v)  subsection 42(1) (failure of multiple project proponents to nominate a nominee); and

                     (c)  the permanence period of the project has not ended.

Relinquishment notice

             (2)  The Regulator may give a relinquishment notice, in relation to the original biodiversity certificate, to any person who was a project proponent of the project immediately before the registration was cancelled as mentioned in paragraph (1)(b).

Note:          For review of decisions, see Part 19.

112  Relinquishment notice—reversal of biodiversity outcome other than due to natural disturbance or conduct etc.

Scope

             (1)  This section applies if:

                     (a)  a biodiversity certificate (the original biodiversity certificate) has been issued in relation to a biodiversity project (whether or not the certificate remains in effect); and

                     (b)  subject to rules made for the purposes of section 114, there has been a significant reversal of the biodiversity outcome to which the project relates; and

                     (c)  the reversal is not attributable to:

                              (i)  natural disturbance; or

                             (ii)  reasonable actions taken to reduce the risk of bushfire; or

                            (iii)  conduct engaged in by a person (other than the project proponent for the project), where the conduct is not within the reasonable control of the project proponent; and

                     (d)  the permanence period of the project has not ended.

Relinquishment notice

             (2)  The Regulator may give a relinquishment notice, in relation to the original biodiversity certificate, to the project proponent.

Note 1:       For projects with multiple project proponents, see Part 3 (and in particular sections 40 and 43).

Note 2:       For review of decisions, see Part 19.

113  Relinquishment notice—reversal of biodiversity outcome due to natural disturbance or conduct and no mitigation happens

Scope

             (1)  This section applies if:

                     (a)  a biodiversity certificate (the original biodiversity certificate) has been issued in relation to a biodiversity project (whether or not the certificate remains in effect); and

                     (b)  subject to rules made for the purposes of section 114, there has been a significant reversal of the biodiversity outcome to which the project relates; and

                     (c)  the reversal is attributable to:

                              (i)  natural disturbance; or

                             (ii)  conduct engaged in by a person (other than the project proponent for the project), where the conduct is not within the reasonable control of the project proponent; and

                     (d)  the Regulator is not satisfied that the project proponent has, within a reasonable period, taken reasonable steps to mitigate the effect of the natural disturbance or conduct, as the case may be, on the project; and

                     (e)  the permanence period of the project has not ended.

Relinquishment notice

             (2)  The Regulator may give a relinquishment notice, in relation to the original biodiversity certificate, to the project proponent.

Note 1:       For projects with multiple project proponents, see Part 3 (and in particular sections 40 and 43).

Note 2:       For review of decisions, see Part 19.

114  Significant reversals in biodiversity outcomes—relinquishment requirements

             (1)  The rules may prescribe circumstances in which, for the purposes of paragraphs 112(1)(b) and 113(1)(b):

                     (a)  there is taken to have been a reversal of the biodiversity outcome to which a registered biodiversity project relates; and

                     (b)  the reversal is taken to be significant, or not taken to be significant.

             (2)  This section does not limit section 98 (significant reversals in biodiversity outcomes—notification requirements).

115  Form and content of relinquishment notice

                   A relinquishment notice must:

                     (a)  be in writing; and

                     (b)  include the information prescribed by the rules.

Division 3—Complying with a relinquishment notice

116  Requirement for compliance with relinquishment notice

             (1)  A relinquishment notice given to a person (the notice recipient) under this Part must be complied with under section 117 before the end of 6 months after the notice is given.

Extension of period to comply

             (2)  The Regulator may extend the period mentioned in subsection (1) by a further period of up to 6 months if the Regulator is satisfied that:

                     (a)  not doing so would lead to significant hardship for the notice recipient; or

                     (b)  the notice recipient cannot relinquish the original biodiversity certificate under paragraph 117(1)(a), and there are no certificates that could be used to comply with paragraph 117(1)(b) reasonably available for the notice recipient to obtain.

Note:          For review of decisions, see Part 19.

             (3)  Only one extension under subsection (2) may be given in respect of any relinquishment notice.

             (4)  The rules may provide for and in relation to:

                     (a)  a person applying for the Regulator to grant an extension under subsection (2); and

                     (b)  the Regulator considering, and making a decision on, such an application.

Civil penalty

             (5)  A person is liable to a civil penalty if:

                     (a)  the person is given a relinquishment notice under this Part; and

                     (b)  the notice is not complied with before the end of the period mentioned in subsection (1) (subject to any extension under subsection (2)).

             (6)  Subsection (5) is a civil penalty provision.

             (7)  Despite subsection 82(5) of the Regulatory Powers Act, the pecuniary penalty in relation to a contravention of subsection (5) of this section (whether the person is a body corporate or otherwise) must not be more than the greater of:

                     (a)  2,000 penalty units; and

                     (b)  if the court can determine the market value of the biodiversity certificate in relation to which the relinquishment notice was given—twice that market value.

             (8)  In determining the pecuniary penalty, the court must take into account:

                     (a)  the nature and extent of any harm to the environment that has been, might be or will be caused by the conduct or circumstances that resulted in the relinquishment notice being given; and

                     (b)  the nature and extent of any harm to the market for biodiversity certificates that has been, might be or will be caused by:

                              (i)  the conduct or circumstances that resulted in the relinquishment notice being given; or

                             (ii)  the failure to comply with the relinquishment notice.

             (9)  Subsection (8) does not limit subsection 82(6) of the Regulatory Powers Act.

           (10)  To avoid doubt, a person may be liable to pay a pecuniary penalty for a contravention of subsection (5) even if:

                     (a)  the person is not the holder of any biodiversity certificates; or

                     (b)  the person is not the holder of the biodiversity certificate in relation to which the relinquishment notice was given; or

                     (c)  the biodiversity certificate in relation to which the relinquishment notice was given is no longer in effect; or

                     (d)  the person is not the holder of one or more biodiversity certificates that, if relinquished under section 118 in relation to the relinquishment notice, would result in the relinquishment notice being complied with under paragraph 117(1)(b); or

                     (e)  no biodiversity certificates exist that, if relinquished under section 118 in relation to the relinquishment notice, would result in the relinquishment notice being complied with under paragraph 117(1)(b).

           (11)  Section 93 (continuing contraventions) of the Regulatory Powers Act does not apply to subsection (5) of this section.

117  Compliance with relinquishment requirement—relinquishing equivalent biodiversity certificate or certificates

             (1)  A relinquishment notice that relates to a biodiversity certificate (the original biodiversity certificate) is complied with if:

                     (a)  the original biodiversity certificate is relinquished, in relation to the notice, in accordance with section 118; or

                     (b)  both of the following apply:

                              (i)  one or more other biodiversity certificates (relinquished certificates) are relinquished, in relation to the notice, in accordance with section 118;

                             (ii)  the relinquished certificate or certificates meet the relinquishment equivalence requirements in relation to the original biodiversity certificate.

Note:          The certificate or certificates may be relinquished by the person who was given the relinquishment notice, or by another person.

             (2)  The rules may prescribe the circumstances in which:

                     (a)  a biodiversity certificate meets the relinquishment equivalence requirements in relation to another biodiversity certificate; or

                     (b)  2 or more biodiversity certificates together meet the relinquishment equivalence requirements in relation to another biodiversity certificate.

118  How biodiversity certificates are relinquished

             (1)  If a person is the holder of a biodiversity certificate, the person may, by electronic notice transmitted to the Regulator, relinquish the certificate.

             (2)  A notice under subsection (1) must:

                     (a)  specify the biodiversity certificate that is being relinquished; and

                     (b)  if the certificate is being relinquished in order to comply with a relinquishment notice given under section 110, 111, 112 or 113—identify the relinquishment notice in relation to which the certificate is being relinquished; and

                     (c)  if the certificate is being voluntarily relinquished in order to satisfy a condition for cancellation of the registration of a biodiversity project under section 24 (voluntary cancellation of registration where certificate is in effect)—identify the registered biodiversity project in relation to which the certificate is being relinquished; and

                     (d)  if the certificate is being voluntarily relinquished for the purposes of paragraph 124(1)(c) (revocation of a biodiversity maintenance declaration)—identify the biodiversity maintenance declaration in relation to which the certificate is being relinquished; and

                     (e)  specify the account number of the person’s Registry account in which there is an entry for the certificate; and

                      (f)  include any other information prescribed by the rules.

             (3)  If a person relinquishes a biodiversity certificate under this section:

                     (a)  the biodiversity certificate is cancelled; and

                     (b)  the Regulator must remove the entry for the certificate from the person’s Registry account in which there is an entry for the certificate.

Note:          A biodiversity certificate that is cancelled under subsection (3) may have originally been issued for a biodiversity project that remains a registered biodiversity project (this may occur, for example, if the cancelled certificate was relinquished in accordance with paragraph 117(1)(b) to comply with a relinquishment notice issued for a different project).

                   In such a case, the cancellation of the certificate does not affect the registration of the biodiversity project to which the certificate relates, and the obligations of the project proponent in relation to that project may continue to apply.

             (4)  To avoid doubt, the relinquishment of a particular biodiversity certificate is effective for only one purpose mentioned in paragraph (2)(b), (c) or (d).

             (5)  The Register must set out a record of each notice under subsection (1).

Part 13—Biodiversity maintenance declarations

Division 1—Introduction

119  Simplified outline of this Part

Division 2—Biodiversity maintenance declarations

120  Biodiversity maintenance declaration

Declaration

             (1)  The Regulator may, by legislative instrument, declare that a specified area of land is a biodiversity maintenance area if:

                     (a)  the biodiversity maintenance area is, or has been, the project area, or part of the project area, of a biodiversity project (the maintained project); and

                     (b)  the maintained project is, or has been, a registered biodiversity project; and

                     (c)  a biodiversity certificate (the original biodiversity certificate) has been issued in relation to the maintained biodiversity project (whether or not the certificate remains in effect); and

                     (d)  any of the following apply:

                              (i)  a relinquishment notice has been given in relation to the original biodiversity certificate, and the notice was not complied with in accordance with section 116;

                             (ii)  a relinquishment notice has been given in relation to the original biodiversity certificate, and the Regulator is satisfied that it is likely that the notice will not be complied with in accordance with section 116;

                            (iii)  the Regulator is satisfied that a relinquishment notice is likely to be given in relation to the original biodiversity certificate, and that it is likely that the notice, if given, would not be complied with in accordance with section 116;

                            (iv)  the Regulator is satisfied that it would be appropriate to give a relinquishment notice in relation to the original biodiversity certificate, but the notice cannot be given because the person to whom the Regulator would give the notice cannot be located or no longer exists, or for some other reason.

             (2)  A declaration under subsection (1) is a biodiversity maintenance declaration.

             (3)  The biodiversity maintenance area specified in a biodiversity maintenance declaration may consist of:

                     (a)  a single area of land; or

                     (b)  multiple areas of land, which need not be continuous.

Declared prohibited activities

             (4)  A biodiversity maintenance declaration may specify one or more activities that are declared prohibited activities in relation to the biodiversity maintenance area.

             (5)  Without limiting subsection (4), an activity may be specified under that subsection by reference to:

                     (a)  the area or areas of land (which must be, or fall within, the biodiversity maintenance area) on which the activity must not be carried out; or

                     (b)  a manner or manners in which the activity must not be carried out; or

                     (c)  the time or times at which the activity must not be carried out; or

                     (d)  the period or periods during which the activity must not be carried out; or

                     (e)  the person or persons who must not carry out the activity.

Notice of declaration

             (6)  If the Regulator makes a biodiversity maintenance declaration under subsection (1), the Regulator must take all reasonable steps to ensure that notice of the making of the declaration is given to:

                     (a)  the project proponent for the maintained project; and

                     (b)  the relevant land registration official; and

                     (c)  any other person specified in the rules.

             (7)  A failure to comply with subsection (6) does not affect the validity of a biodiversity maintenance declaration.

121  Civil penalty for carrying out declared prohibited activity

                   A person must not carry out an activity in a biodiversity maintenance area if the activity is a declared prohibited activity in relation to the biodiversity maintenance area.

Civil penalty:          2,000 penalty units.

122  When a biodiversity maintenance declaration ceases to be in force

                   Unless sooner revoked, a biodiversity maintenance declaration ceases to be in force at the earlier of the following times:

                     (a)  the end of the permanence period for the maintained project;

                     (b)  if a civil penalty order is made under Part 4 of the Regulatory Powers Act, as that Part applies in relation to subsection 116(5) of this Act, that relates to a relinquishment notice given in respect of the biodiversity certificate issued in respect of the maintained project—the time the penalty is paid in full to the Commonwealth.

123  Variation or revocation of biodiversity maintenance declaration

Scope

             (1)  This section applies if a biodiversity maintenance declaration is in force in relation to an area or areas of land.

Variation or revocation

             (2)  The Regulator may, by legislative instrument, vary or revoke the declaration.

             (3)  The Regulator may do so:

                     (a)  on the Regulator’s own initiative; or

                     (b)  on application made to the Regulator by a person.

Application

             (4)  An application under paragraph (3)(b) must:

                     (a)  be in writing; and

                     (b)  be in a form approved, in writing, by the Regulator; and

                     (c)  be accompanied by the fee (if any) specified in the rules.

             (5)  A fee specified under paragraph (4)(c) must not be such as to amount to taxation.

Notification of variation or revocation

             (6)  If the Regulator varies or revokes the declaration, the Regulator must take all reasonable steps to ensure that notice of the variation or revocation is given to:

                     (a)  the project proponent for the maintained project; and

                     (b)  the relevant land registration official; and

                     (c)  any other person specified in the rules.

             (7)  A failure to comply with subsection (6) does not affect the validity of a variation or revocation.

Refusal

             (8)  If the Regulator decides to refuse to vary or revoke the declaration on an application under paragraph (3)(b), the Regulator must give written notice of the decision to the applicant.

124  Revocation of biodiversity maintenance declaration—voluntary relinquishment of biodiversity certificate

Scope

             (1)  This section applies if:

                     (a)  a biodiversity maintenance declaration is in force; and

                     (b)  a person applies to the Regulator for the revocation of the biodiversity maintenance declaration; and

                     (c)  before the application was made, the applicant or another person voluntarily relinquished, in accordance with section 118 and in relation to the biodiversity maintenance declaration:

                              (i)  the biodiversity certificate for the maintained project; or

                             (ii)  one or more other biodiversity certificates that meet the relinquishment equivalence requirements in relation to the biodiversity certificate for the maintained project.

Note:          For when one or more biodiversity certificates meet the relinquishment equivalence requirements in relation to another biodiversity certificate, see rules made for the purposes of subsection 117(2).

Revocation

             (2)  The Regulator must, by legislative instrument, revoke the declaration.

Application

             (3)  An application under paragraph (1)(b) must:

                     (a)  be in writing; and

                     (b)  be in a form approved, in writing, by the Regulator.

Notification of revocation

             (4)  If the Regulator revokes the declaration, the Regulator must take all reasonable steps to ensure that notice of the revocation is given to:

                     (a)  the project proponent for the maintained project; and

                     (b)  the relevant land registration official; and

                     (c)  any other person specified in the rules.

             (5)  A failure to comply with subsection (4) does not affect the validity of a revocation.

Refusal

             (6)  If the Regulator decides to refuse to revoke the declaration, the Regulator must give written notice of the decision to the applicant.

125  Delegation by the Regulator

             (1)  The Regulator may, by writing, delegate a power to make, vary or revoke a biodiversity maintenance declaration to a member of the Regulator.

Note:          Under subsection 35(3) of the Clean Energy Regulator Act 2011, the Regulator’s general power of delegation does not apply to a power to make, vary or revoke a legislative instrument.

             (2)  A delegate must comply with any written directions of the Regulator.

Part 14—Registers

Division 1—Introduction

126  Simplified outline of this Part

Division 2—Agriculture Biodiversity Stewardship Market Register

127  Agriculture Biodiversity Stewardship Market Register

             (1)  The Regulator must keep a register, to be known as the Agriculture Biodiversity Stewardship Market Register.

Note:          In this Act, the Agriculture Biodiversity Stewardship Market Register is known as the Register (see the definition of Register in section 7).

             (2)  The Register is to be maintained by electronic means.

             (3)  The Register is to be made available for inspection on the Regulator’s website.

             (4)  The Regulator must ensure that the Register is up to date.

128  Entries in the Register—registered biodiversity projects and former registered biodiversity projects

             (1)  The Register must set out, for each registered biodiversity project:

                     (a)  the name of the project; and

                     (b)  the project area or areas for the project; and

                     (c)  a description of the project, including such details (if any) as are prescribed by the rules; and

                     (d)  the project proponent or project proponents for the project; and

                     (e)  the protocol determination that covers the project; and

                      (f)  whether the registration of the project is subject to a condition under section 18 (conditions about obtaining regulatory approvals); and

                     (g)  whether the registration of the project is subject to a condition under section 19 (conditions about obtaining consent from eligible interest holders); and

                     (h)  such other information (if any) as is provided for under paragraph 45(1)(c) by the protocol determination that covers the project; and

                      (i)  such other information (if any) as the Regulator considers appropriate; and

                      (j)  such other information (if any) as is prescribed by the rules.

             (2)  Paragraph (1)(b) has effect subject to section 129.

Note:          Section 129 deals with requests for information about a project area not to be set out in the Register.

Former registered biodiversity projects

             (3)  The rules may provide for the Register to set out prescribed information for biodiversity projects that have been, but have ceased to be, registered biodiversity projects (including such projects that are no longer being carried on).

129  Requests for information about project area not to be set out in the Register

             (1)  The Register must not set out a project area for a registered biodiversity project if:

                     (a)  the project proponent for the project has requested the Regulator not to set out the project area in the Register; and

                     (b)  the Regulator is satisfied that:

                              (i)  setting out the project area could reasonably be expected to substantially prejudice a matter referred to in subsection (2); and

                             (ii)  the prejudice outweighs the public interest in the setting out of the project area.

             (2)  For the purposes of subparagraph (1)(b)(i), the matters are the following:

                     (a)  the commercial interests of the project proponent for the project or another person;

                     (b)  the biodiversity of the project area;

                     (c)  the safety of any person.

             (3)  A request under subsection (1) must:

                     (a)  be in writing; and

                     (b)  be in a form approved, in writing, by the Regulator.

             (4)  The Regulator must take all reasonable steps to ensure that a decision is made on the request within 30 days after the request was made.

             (5)  If the Regulator decides to refuse the request, the Regulator must give written notice of the decision to the project proponent.

130  Entries in the Register—biodiversity certificates

             (1)  The Register must set out, for each biodiversity certificate that is in effect:

                     (a)  the biodiversity project to which the certificate relates; and

                     (b)  the date of issue of the certificate; and

                     (c)  the holder of the certificate; and

                     (d)  such other information (if any) as is provided for under paragraph 45(1)(g) by the protocol determination that covers the project; and

                     (e)  such other information (if any) as is prescribed by the rules.

             (2)  The Register must set out, for each biodiversity certificate that has been in effect, but has ceased to be in effect:

                     (a)  the biodiversity project to which the certificate related; and

                     (b)  the date of issue of the certificate; and

                     (c)  such other information (if any) as is provided for under paragraph 45(1)(g) by the protocol determination that covers the project; and

                     (d)  such other information (if any) as is prescribed by the rules.

131  Entries in the Register—accounts for holding biodiversity certificates

                   The rules may make provision for and in relation to empowering the Regulator to open accounts in the Register to hold biodiversity certificates.

132  Rules may make provision in relation to the Register

             (1)  The rules may make provision for and in relation to the Register.

             (2)  Without limiting subsection (1), the rules may make provision for or in relation to any of the following:

                     (a)  matters that are to be recorded in the Register;

                     (b)  the manner in which information may be communicated to or by the Regulator in relation to the Register;

                     (c)  requests to open, close, transfer or otherwise deal with accounts in the Register (including forms for making requests, information that must accompany a request and the consideration of a request by the Regulator);

                     (d)  identification procedures that the Regulator may or must carry out in relation to a record in the Register;

                     (e)  joint accounts;

                      (f)  accounts to be kept for the Commonwealth;

                     (g)  unilateral closure of accounts by the Regulator;

                     (h)  the holding of biodiversity certificates in accounts in the Register, and the transfer of certificates between accounts;

                      (i)  requiring the holders of accounts to notify the Regulator of specified events;

                      (j)  correction or rectification of the Register;

                     (k)  verification by statutory declaration of information provided to the Regulator in relation to the Register;

                      (l)  fees for things done by the Regulator in relation to the Register.

             (3)  A fee provided for by rules made for the purposes of this section must not be such as to amount to taxation.

Division 3—Online platform

133  Online Platform

             (1)  The rules may make provision for and in relation to empowering the Regulator to maintain an online platform for any of the following purposes:

                     (a)  facilitating the trading of any of the following:

                              (i)  biodiversity certificates;

                             (ii)  other certificates, units or credits (however described, and whether issued under a law of the Commonwealth, a State or a Territory, or in some other way) that relate to biodiversity projects;

                     (b)  facilitating arrangements between project proponents, or prospective project proponents, of registered biodiversity projects and prospective purchasers of biodiversity certificates;

                     (c)  facilitating arrangements relating to biodiversity projects that are not, and are not intended to be, registered under this Act;

                     (d)  any other purpose incidental or related to any of the above.

             (2)  The rules must not require a person to use the online platform in order to:

                     (a)  be the project proponent of a registered biodiversity project; or

                     (b)  be issued with, hold or deal with a biodiversity certificate; or

                     (c)  otherwise receive the benefit of any other provision of this Act.

Part 15—Publication of information

Division 1—Introduction

134  Simplified outline of this Part

Division 2—Information about biodiversity certificates

135  Information about biodiversity certificates

             (1)  As soon as practicable after a biodiversity certificate is issued to a person, the Regulator must publish on the Regulator’s website:

                     (a)  the name of the person; and

                     (b)  such other information relating to the certificate as is prescribed by the rules.

             (2)  As soon as practicable after a variation of a biodiversity certificate is made, the Regulator must publish on the Regulator’s website:

                     (a)  the name of the holder of the certificate; and

                     (b)  such other information relating to the certificate or the variation as is prescribed by the rules.

             (3)  As soon as practicable after a biodiversity certificate is transferred from one account in the Register to another account in the Register, the Regulator must publish on the Regulator’s website:

                     (a)  the name of the holder of each of those accounts; and

                     (b)  such other information relating to the certificate or the transfer as is prescribed by the rules.

136  Reports about activities of Regulator

             (1)  As soon as practicable after the end of a financial year, the Regulator must publish on the Regulator’s website a report about the activities of the Regulator under this Act during the financial year.

             (2)  The report must deal with any matters prescribed by the rules.

137  Publication of concise description of the characteristics of biodiversity certificates

                   The Regulator must:

                     (a)  publish on the Regulator’s website a statement setting out a concise description of the characteristics of biodiversity certificates; and

                     (b)  keep that statement up to date.

Division 3—Information about biodiversity certificates purchased by the Commonwealth

138  Information about biodiversity conservation purchasing processes

                   After the Secretary conducts a biodiversity conservation purchasing process, the Secretary may publish on the Agriculture Department’s website the following information:

                     (a)  when the process was conducted;

                     (b)  the total amount that the Commonwealth agreed to pay by way of purchasing biodiversity certificates through the process (whether or not those payments have been made);

                     (c)  such other summary information (if any) relating to the process as the Secretary considers appropriate;

                     (d)  such other statistics (if any) relating to the process as the Secretary considers appropriate.

139  Annual reports about purchases of biodiversity certificates

                   The Secretary may publish on the Agriculture Department’s website a report, in relation to a financial year, on the following matters:

                     (a)  the total number of biodiversity certificates that the Commonwealth has purchased, or has agreed to purchase, under biodiversity conservation contracts entered into during the financial year;

                     (b)  the total amount that the Commonwealth will be liable to pay, or has paid, under biodiversity conservation contracts entered into during the financial year;

                     (c)  the total number of biodiversity certificates that were transferred to the Commonwealth during the financial year as a result of biodiversity conservation contracts (including such contracts entered into before the financial year);

                     (d)  the total amount that the Commonwealth paid during the financial year under biodiversity conservation contracts (including such contracts entered into before the financial year);

                     (e)  for each biodiversity certificate transferred to the Commonwealth during the financial year as a result of a biodiversity conservation contract (including such a contract entered into before the financial year)—sufficient information to identify the registered biodiversity project in relation to which the certificate was issued;

                      (f)  such other summary information (if any) relating to the purchase of biodiversity certificates by the Commonwealth under biodiversity conservation contracts as the Secretary considers appropriate;

                     (g)  such other statistics (if any) relating to the purchase of biodiversity certificates by the Commonwealth under biodiversity conservation contracts as the Secretary considers appropriate.

Division 4—Information about relinquishment requirements

140  Information about relinquishment requirements

Scope

             (1)  This section applies if the Regulator gives a person a relinquishment notice under Part 12.

Relinquishment requirement

             (2)  As soon as practicable after giving the relinquishment notice, the Regulator must publish on the Regulator’s website:

                     (a)  the name of the person; and

                     (b)  details of the relinquishment requirement.

             (3)  If any of the following paragraphs applies:

                     (a)  the decision to require the person to relinquish one or more biodiversity certificates is being reconsidered by the Regulator under section 176;

                     (b)  the decision to require the person to relinquish one or more biodiversity certificates has been affirmed or varied by the Regulator under section 176, and the decision as so affirmed or varied is the subject of an application for review by the Administrative Appeals Tribunal;

                     (c)  the decision to require the person to relinquish one or more biodiversity certificates is the subject of an application for review by the Administrative Appeals Tribunal;

the Regulator must:

                     (d)  publish an appropriate annotation on the Regulator’s website; and

                     (e)  if paragraph (a) applies—when the Regulator notifies the applicant for reconsideration of the Regulator’s decision on the reconsideration, the Regulator must publish an appropriate annotation on the Regulator’s website; and

                      (f)  if paragraph (b) or (c) applies—when the review by the Administrative Appeals Tribunal (including any court proceedings arising out of the review) has been finalised, the Regulator must publish an appropriate annotation on the Regulator’s website.

141  Information about relinquished certificates

Scope

             (1)  This section applies if:

                     (a)  the Regulator gives a person a relinquishment notice; and

                     (b)  one or more biodiversity certificates are relinquished under section 118 in order to comply with the relinquishment notice.

Biodiversity certificates relinquished

             (2)  As soon as practicable after receiving the notice under section 118 relinquishing the biodiversity certificate or certificates, the Regulator must publish on the Regulator’s website:

                     (a)  the name of the person; and

                     (b)  such information in relation to the biodiversity certificate or certificates as the Regulator thinks appropriate.

Part 16—Record‑keeping and project monitoring requirements

Division 1—Introduction

142  Simplified outline of this Part

Division 2—Record‑keeping requirements

143  Record‑keeping requirements—general

             (1)  The rules may require a person to:

                     (a)  make a record of specified information, where the information is relevant to this Act; and

                     (b)  retain:

                              (i)  the record; or

                             (ii)  a copy of the record;

                            for 7 years after the making of the record.

             (2)  If a person is subject to a requirement under rules made for the purposes of subsection (1), the person must comply with that requirement.

Civil penalty:          200 penalty units.

Other provisions do not limit this section

             (3)  This section is not limited by any other provision of this Act that relates to the keeping or retention of records.

144  Record‑keeping requirements—preparation of biodiversity project report

Scope

             (1)  This section applies if a person:

                     (a)  made a record of particular information; and

                     (b)  used the information to prepare a biodiversity project report.

Record‑keeping requirements

             (2)  The rules may require the person to retain:

                     (a)  the record; or

                     (b)  a copy of the record;

for 7 years after the biodiversity project report was given to the Regulator.

             (3)  If a person is subject to a requirement under rules made for the purposes of subsection (2), the person must comply with that requirement.

Civil penalty:          200 penalty units.

145  Record‑keeping requirements—protocol determinations

Scope

             (1)  This section applies if:

                     (a)  a person is the project proponent for a registered biodiversity project; and

                     (b)  under the protocol determination that covers the project, the person is subject to a record‑keeping requirement relating to the project.

Record‑keeping requirement

             (2)  The person must comply with the requirement.

Civil penalty:          200 penalty units.

Division 3—Project monitoring requirements

146  Project monitoring requirements—protocol determinations

Scope

             (1)  This section applies if:

                     (a)  a person is the project proponent for a registered biodiversity project; and

                     (b)  under the protocol determination that covers the project, the person is subject to a requirement to monitor the project.

Project monitoring requirement

             (2)  The person must comply with the requirement.

Civil penalty:          200 penalty units.

Part 17—Enforcement

Division 1—Introduction

147  Simplified outline of this Part

148  Appointment of inspectors

             (1)  The Chair of the Regulator may, in writing, appoint a person who is one of the following as an inspector for the purposes of this Act:

                     (a)  a person who is:

                              (i)  a member of the staff of the Regulator; and

                             (ii)  an SES employee or acting SES employee;

                     (b)  a person who is:

                              (i)  a member of the staff of the Regulator; and

                             (ii)  an APS employee who holds or performs the duties of an Executive Level 1 or 2 position or an equivalent position;

                     (c)  a member or special member of the Australian Federal Police.

Note:          The expressions APS employee, SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.

             (2)  The Chair must not appoint a person as an inspector unless the Chair is satisfied that the person has the knowledge or experience necessary to properly exercise the powers of an inspector.

             (3)  An inspector must, in exercising powers as such, comply with any directions of the Chair.

             (4)  If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.

Division 2—Monitoring powers

149  Monitoring powers

Provisions subject to monitoring

             (1)  The following provisions are subject to monitoring under Part 2 of the Regulatory Powers Act:

                     (a)  an offence provision of this Act;

                     (b)  a civil penalty provision of this Act;

                     (c)  an offence provision of the Crimes Act 1914 or the Criminal Code, to the extent that it relates to this Act.

Note:          Part 2 of the Regulatory Powers Act creates a framework for monitoring whether this Act has been complied with. It includes powers of entry and inspection.

Information subject to monitoring

             (2)  Information given in compliance or purported compliance with a provision of this Act, the rules or a protocol determination is subject to monitoring under Part 2 of the Regulatory Powers Act.

Note:          Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.

Related provisions, authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court

             (3)  For the purposes of Part 2 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2):

                     (a)  there are no related provisions; and

                     (b)  an inspector is an authorised applicant; and

                     (c)  an inspector is an authorised person; and

                     (d)  a magistrate is an issuing officer; and

                     (e)  the Chair of the Regulator is the relevant chief executive; and

                      (f)  each of the following is a relevant court:

                              (i)  the Federal Court;

                             (ii)  a court of a State or Territory that has jurisdiction in relation to matters arising under this Act or the associated provisions.

             (4)  The relevant chief executive may, in writing, delegate the powers and functions mentioned in subsection (5) to a person who is:

                     (a)  a member of the staff of the Regulator; and

                     (b)  an SES employee or acting SES employee.

Note:          The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.

             (5)  The powers and functions that may be delegated are:

                     (a)  powers and functions under Part 2 of the Regulatory Powers Act in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2); and

                     (b)  powers and functions under the Regulatory Powers Act that are incidental to a power or function mentioned in paragraph (a).

             (6)  A person exercising powers or performing functions under a delegation under subsection (4) must comply with any directions of the relevant chief executive.

Person assisting

             (7)  An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2).

Extension to external Territories

             (8)  Part 2 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1) and the information mentioned in subsection (2), extends to every external Territory.

Division 3—Investigation powers

150  Investigation powers

Provisions subject to investigation

             (1)  A provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is:

                     (a)  an offence provision of this Act; or

                     (b)  a civil penalty provision of this Act; or

                     (c)  an offence provision of the Crimes Act 1914 or the Criminal Code, to the extent that it relates to this Act.

Note:          Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.

Related provisions, authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court

             (2)  For the purposes of Part 3 of the Regulatory Powers Act, as that Part applies in relation to evidential material that relates to a provision mentioned in subsection (1):

                     (a)  there are no related provisions; and

                     (b)  an inspector is an authorised applicant; and

                     (c)  an inspector is an authorised person; and

                     (d)  a magistrate is an issuing officer; and

                     (e)  the Chair of the Regulator is the relevant chief executive; and

                      (f)  each of the following is a relevant court:

                              (i)  the Federal Court;

                             (ii)  a court of a State or Territory that has jurisdiction in relation to matters arising under this Act or the associated provisions.

             (3)  The relevant chief executive may, in writing, delegate the powers and functions mentioned in subsection (4) to a person who is:

                     (a)  a member of the staff of the Regulator; and

                     (b)  an SES employee or acting SES employee.

Note:          The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.

             (4)  The powers and functions that may be delegated are:

                     (a)  powers and functions under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (1); and

                     (b)  powers and functions under the Regulatory Powers Act that are incidental to a power or function mentioned in paragraph (a).

             (5)  A person exercising powers or performing functions under a delegation under subsection (3) must comply with any directions of the relevant chief executive.

Person assisting

             (6)  An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (1).

Extension to external Territories

             (7)  Part 3 of the Regulatory Powers Act, as that Part applies in relation to a provision mentioned in subsection (1), extends to every external Territory.

Division 4—Civil penalty provisions

151  Civil penalty provisions

                   Enforceable civil penalty provisions

             (1)  Each civil penalty provision of this Act is enforceable under Part 4 of the Regulatory Powers Act.

Note:          Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.

Authorised applicant

             (2)  For the purposes of Part 4 of the Regulatory Powers Act, the Chair of the Regulator is an authorised applicant in relation to the civil penalty provisions of this Act.

             (3)  An authorised applicant may, in writing, delegate the authorised applicant’s powers and functions under Part 4 of the Regulatory Powers Act in relation to the civil penalty provisions of this Act to a person who is:

                     (a)  a member of the staff of the Regulator; and

                     (b)  an SES employee or acting SES employee.

Note:          The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.

Relevant court

             (4)  For the purposes of Part 4 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the civil penalty provisions of this Act:

                     (a)  the Federal Court;

                     (b)  a court of a State or Territory that has jurisdiction in relation to matters arising under this Act or the associated provisions.

Extension to external Territories

             (5)  Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act, extends to every external Territory.

Liability of Crown

             (6)  Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act, does not make the Crown liable to a pecuniary penalty.

Division 5—Infringement notices

152  Infringement notices

Provisions subject to an infringement notice

             (1)  A civil penalty provision of this Act is subject to an infringement notice under Part 5 of the Regulatory Powers Act.

Note:          Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.

Infringement officer

             (2)  For the purposes of Part 5 of the Regulatory Powers Act, each of the following persons is an infringement officer in relation to the provisions mentioned in subsection (1):

                     (a)  an inspector;

                     (b)  a person who is:

                              (i)  a member of the staff of the Regulator; and

                             (ii)  an SES employee or acting SES employee.

Note:          The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.

Relevant chief executive

             (3)  For the purposes of Part 5 of the Regulatory Powers Act, the Chair of the Regulator is the relevant chief executive in relation to the provisions mentioned in subsection (1).

             (4)  The relevant chief executive may, in writing, delegate the relevant chief executive’s powers and functions under Part 5 of the Regulatory Powers Act in relation to the provisions mentioned in subsection (1) to a person who is:

                     (a)  a member of the staff of the Regulator; and

                     (b)  an SES employee or acting SES employee.

Note:          The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.

             (5)  A person exercising powers or performing functions under a delegation under subsection (4) must comply with any directions of the relevant chief executive.

Extension to external Territories

             (6)  Part 5 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1), extends to every external Territory.

Division 6—Enforceable undertakings

153  Enforceable undertakings

Enforceable provisions

             (1)  The following provisions are enforceable under Part 6 of the Regulatory Powers Act:

                     (a)  an offence provision of this Act;

                     (b)  a civil penalty provision of this Act;

                     (c)  an offence provision of the Crimes Act 1914 or the Criminal Code, to the extent that it relates to this Act.

Note:          Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.

Authorised person

             (2)  For the purposes of Part 6 of the Regulatory Powers Act, the Chair of the Regulator is an authorised person in relation to the provisions mentioned in subsection (1).

             (3)  An authorised person may, in writing, delegate the authorised person’s powers and functions under Part 6 of the Regulatory Powers Act in relation to the provisions mentioned in subsection (1) to a person who is:

                     (a)  a member of the staff of the Regulator; and

                     (b)  an SES employee or acting SES employee.

Note:          The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.

Relevant court

             (4)  For the purposes of Part 6 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the provisions mentioned in subsection (1):

                     (a)  the Federal Court;

                     (b)  a court of a State or Territory that has jurisdiction in relation to matters arising under this Act or the associated provisions.

Extension to external Territories

             (5)  Part 6 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1), extends to every external Territory.

Division 7—Injunctions

154  Injunctions

Enforceable provisions

             (1)  Section 121 (civil penalty for carrying out declared prohibited activity) is enforceable under Part 7 of the Regulatory Powers Act.

Note:          Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.

Authorised person

             (2)  For the purposes of Part 7 of the Regulatory Powers Act, the Chair of the Regulator is an authorised person in relation to the provision mentioned in subsection (1).

             (3)  An authorised person may, in writing, delegate the authorised person’s powers and functions under Part 7 of the Regulatory Powers Act in relation to the provision mentioned in subsection (1) to a person who is:

                     (a)  a member of the staff of the Regulator; and

                     (b)  an SES employee or acting SES employee.

Note:          The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.

Relevant court

             (4)  For the purposes of Part 7 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the provision mentioned in subsection (1):

                     (a)  the Federal Court;

                     (b)  a court of a State or Territory that has jurisdiction in relation to matters arising under this Act or the associated provisions.

Extension to external Territories

             (5)  Part 7 of the Regulatory Powers Act, as that Part applies in relation to the provision mentioned in subsection (1), extends to every external Territory.

Part 18—Agriculture Biodiversity Stewardship Market Advisory Committee

Division 1—Introduction

155  Simplified outline of this Part

Division 2—Establishment and functions of the Agriculture Biodiversity Stewardship Market Advisory Committee

156  Agriculture Biodiversity Stewardship Market Advisory Committee

                   The Agriculture Biodiversity Stewardship Market Advisory Committee is established by this section.

Note:          The Committee is not a Commonwealth entity for the purposes of the Public Governance, Performance and Accountability Act 2013.

157  Functions of the Agriculture Biodiversity Stewardship Market Advisory Committee

                   The Agriculture Biodiversity Stewardship Market Advisory Committee has the following functions:

                     (a)  the functions that are conferred on it by this Act and any instruments made under this Act;

                     (b)  to advise the Agriculture Minister about matters that:

                              (i)  relate to biodiversity projects; and

                             (ii)  are referred to the Committee by the Agriculture Minister;

                     (c)  to advise the Agriculture Minister about the suspension of the consideration by the Regulator of applications for the registration of biodiversity projects (see section 17);

                     (d)  to monitor the compliance of protocol determinations with the biodiversity integrity standards;

                     (e)  to undertake periodic reviews of protocol determinations;

                      (f)  to undertake public consultation in relation to reviews of protocol determinations;

                     (g)  to advise the Agriculture Minister in relation to the outcomes of reviews of protocol determinations and any related public consultation;

                     (h)  to advise the Secretary in relation to the outcomes of reviews of protocol determinations and any related public consultation;

                      (i)  to do anything incidental to or conducive to the performance of the above functions.

Division 3—Membership of the Agriculture Biodiversity Stewardship Market Advisory Committee

158  Membership of the Agriculture Biodiversity Stewardship Market Advisory Committee

                   The Agriculture Biodiversity Stewardship Market Advisory Committee consists of the following members:

                     (a)  a Chair;

                     (b)  at least 3, and not more than 5, other members.

159  Appointment of Agriculture Biodiversity Stewardship Market Advisory Committee members

             (1)  Each Agriculture Biodiversity Stewardship Market Advisory Committee member is to be appointed by the Agriculture Minister by written instrument.

Note:          An Agriculture Biodiversity Stewardship Market Advisory Committee member may be reappointed: see section 33AA of the Acts Interpretation Act 1901.

             (2)  A person is not eligible for appointment as an Agriculture Biodiversity Stewardship Market Advisory Committee member unless the Agriculture Minister is satisfied that the person has substantial experience or knowledge in at least one of the following fields of expertise:

                     (a)  agriculture;

                     (b)  biological or ecological science;

                     (c)  environmental markets.

             (3)  The Agriculture Minister must ensure that the Chair of the Agriculture Biodiversity Stewardship Market Advisory Committee is not:

                     (a)  an employee of the Commonwealth; or

                     (b)  an employee of an authority of the Commonwealth; or

                     (c)  a person who holds a full‑time office under a law of the Commonwealth.

             (4)  The Agriculture Minister must ensure that one Agriculture Biodiversity Stewardship Market Advisory Committee member (other than the Chair):

                     (a)  is an SES employee in the Agriculture Department; or

                     (b)  holds or performs the duties of an Executive Level 2 position, or an equivalent position, in the Agriculture Department.

Note:          The expression SES employee is defined in section 2B of the Acts Interpretation Act 1901.

             (5)  An Agriculture Biodiversity Stewardship Market Advisory Committee member holds office on a part‑time basis.

160  Period for appointment for Agriculture Biodiversity Stewardship Market Advisory Committee members

             (1)  The Chair of the Agriculture Biodiversity Stewardship Market Advisory Committee holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

Note:          The Chair of the Agriculture Biodiversity Stewardship Market Advisory Committee may be reappointed: see section 33AA of the Acts Interpretation Act 1901.

             (2)  An Agriculture Biodiversity Stewardship Market Advisory Committee member (other than the Chair) holds office for the period specified in the instrument of appointment. The period must not exceed 2 years.

Note:          An Agriculture Biodiversity Stewardship Market Advisory Committee member may be reappointed: see section 33AA of the Acts Interpretation Act 1901.

161  Acting Agriculture Biodiversity Stewardship Market Advisory Committee members

Acting Chair of the Agriculture Biodiversity Stewardship Market Advisory Committee

             (1)  The Agriculture Minister may, by written instrument, appoint an Agriculture Biodiversity Stewardship Market Advisory Committee member to act as the Chair of the Agriculture Biodiversity Stewardship Market Advisory Committee:

                     (a)  during a vacancy in the office of the Chair of the Agriculture Biodiversity Stewardship Market Advisory Committee (whether or not an appointment has previously been made to the office); or

                     (b)  during any period, or during all periods, when the Chair of the Agriculture Biodiversity Stewardship Market Advisory Committee:

                              (i)  is absent from duty or from Australia; or

                             (ii)  is, for any reason, unable to perform the duties of the office.

Note:          For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.

Acting Agriculture Biodiversity Stewardship Market Advisory Committee member (other than the Chair)

             (2)  The Agriculture Minister may, by written instrument, appoint a person to act as an Agriculture Biodiversity Stewardship Market Advisory Committee member (other than the Chair of the Agriculture Biodiversity Stewardship Market Advisory Committee):

                     (a)  during a vacancy in the office of an Agriculture Biodiversity Stewardship Market Advisory Committee member (other than the Chair of the Committee), whether or not an appointment has previously been made to the office; or

                     (b)  during any period, or during all periods, when an Agriculture Biodiversity Stewardship Market Advisory Committee member (other than the Chair of the Committee):

                              (i)  is absent from duty or from Australia; or

                             (ii)  is, for any reason, unable to perform the duties of the office.

Note:          For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.

Eligibility

             (3)  A person is not eligible for appointment to act as:

                     (a)  the Chair of the Agriculture Biodiversity Stewardship Market Advisory Committee; or

                     (b)  an Agriculture Biodiversity Stewardship Market Advisory Committee member (other than the Chair of the Committee);

unless the person is eligible for appointment as an Agriculture Biodiversity Stewardship Market Advisory Committee member.

Note 1:       For eligibility for appointment as an Agriculture Biodiversity Stewardship Market Advisory Committee member, see subsection 159(2).

Note 2:       For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.

162  Procedures

             (1)  The rules may prescribe the procedures to be followed at or in relation to meetings of the Agriculture Biodiversity Stewardship Market Advisory Committee, including matters relating to the following:

                     (a)  the convening of meetings of the Committee;

                     (b)  the number of Agriculture Biodiversity Stewardship Market Advisory Committee members who are to constitute a quorum;

                     (c)  the selection of an Agriculture Biodiversity Stewardship Market Advisory Committee member to preside at meetings of the Committee in the absence of the Chair of the Committee;

                     (d)  the manner in which questions arising at a meeting of the Committee are to be decided.

             (2)  A resolution is taken to have been passed at a meeting of the Agriculture Biodiversity Stewardship Market Advisory Committee if:

                     (a)  without meeting, a majority of Agriculture Biodiversity Stewardship Market Advisory Committee members indicate agreement with the resolution in accordance with the method determined by the Committee under subsection (3); and

                     (b)  all Agriculture Biodiversity Stewardship Market Advisory Committee members were informed of the proposed resolution, or reasonable efforts had been made to inform all Agriculture Biodiversity Stewardship Market Advisory Committee members of the proposed resolution.

             (3)  Subsection (2) applies only if the Agriculture Biodiversity Stewardship Market Advisory Committee:

                     (a)  determines that it applies; and

                     (b)  determines the method by which Agriculture Biodiversity Stewardship Market Advisory Committee members are to indicate agreement with resolutions.

             (4)  If an Agriculture Biodiversity Stewardship Market Advisory Committee member is an APS employee in the Agriculture Department, the member:

                     (a)  is not entitled to vote for a resolution at a meeting of the Committee; and

                     (b)  is not entitled to indicate agreement with a resolution as mentioned in paragraph (2)(a); and

                     (c)  is not to be counted for the purposes of determining whether a majority of Agriculture Biodiversity Stewardship Market Advisory Committee members:

                              (i)  have voted for a resolution at a meeting of the Committee; or

                             (ii)  have indicated agreement with a resolution as mentioned in paragraph (2)(a).

Note:          The expression APS employee is defined in section 2B of the Acts Interpretation Act 1901.

163  Disclosure of interests to the Agriculture Minister

                   An Agriculture Biodiversity Stewardship Market Advisory Committee member must give written notice to the Agriculture Minister of all interests, pecuniary or otherwise, that the member has or acquires and that conflict or could conflict with the proper performance of the member’s duties.

164  Disclosure of interests to the Agriculture Biodiversity Stewardship Market Advisory Committee

             (1)  An Agriculture Biodiversity Stewardship Market Advisory Committee member who has an interest, pecuniary or otherwise, in a matter being considered or about to be considered by the Committee must disclose the nature of the interest to a meeting of the Committee.

             (2)  The disclosure must be made as soon as possible after the relevant facts have come to the Agriculture Biodiversity Stewardship Market Advisory Committee member’s knowledge.

             (3)  The disclosure must be recorded in the minutes of the meeting.

             (4)  Unless the Agriculture Biodiversity Stewardship Market Advisory Committee otherwise determines, the Agriculture Biodiversity Stewardship Market Advisory Committee member:

                     (a)  must not be present during any deliberation by the Committee on the matter; and

                     (b)  must not take part in any decision of the Committee with respect to the matter.

             (5)  For the purposes of making a determination under subsection (4), the Agriculture Biodiversity Stewardship Market Advisory Committee member:

                     (a)  must not be present during any deliberation of the Committee for the purpose of making the determination; and

                     (b)  must not take part in making the determination.

             (6)  A determination under subsection (4) must be recorded in the minutes of the meeting of the Agriculture Biodiversity Stewardship Market Advisory Committee.

165  Other paid work

                   An Agriculture Biodiversity Stewardship Market Advisory Committee member must not engage in any paid work that conflicts or could conflict with the proper performance of the Agriculture Biodiversity Stewardship Market Advisory Committee member’s duties.

166  Remuneration

             (1)  An Agriculture Biodiversity Stewardship Market Advisory Committee member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Agriculture Biodiversity Stewardship Market Advisory Committee member is to be paid the remuneration that is prescribed by the rules.

             (2)  An Agriculture Biodiversity Stewardship Market Advisory Committee member is to be paid the allowances that are prescribed by the rules.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973.

167  Leave of absence

             (1)  The Agriculture Minister may grant leave of absence to the Chair of the Agriculture Biodiversity Stewardship Market Advisory Committee on the terms and conditions that the Agriculture Minister determines.

             (2)  The Chair of the Agriculture Biodiversity Stewardship Market Advisory Committee may grant leave of absence to any Agriculture Biodiversity Stewardship Market Advisory Committee member on the terms and conditions that the Chair determines.

168  Resignation

             (1)  An Agriculture Biodiversity Stewardship Market Advisory Committee member may resign the member’s appointment by giving the Agriculture Minister a written resignation.

             (2)  The resignation takes effect on the day it is received by the Agriculture Minister or, if a later day is specified in the resignation, on that later day.

169  Termination of appointment

             (1)  The Agriculture Minister may terminate the appointment of an Agriculture Biodiversity Stewardship Market Advisory Committee member:

                     (a)  for misbehaviour; or

                     (b)  if the member is unable to perform the duties of the member’s office because of physical or mental incapacity.

             (2)  The Agriculture Minister may terminate the appointment of an Agriculture Biodiversity Stewardship Market Advisory Committee member if:

                     (a)  the member:

                              (i)  becomes bankrupt; or

                             (ii)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                            (iii)  compounds with the member’s creditors; or

                            (iv)  makes an assignment of the member’s remuneration for the benefit of the member’s creditors; or

                     (b)  the member is absent, except on leave of absence, from 3 consecutive meetings of the Committee; or

                     (c)  the member engages in paid work that conflicts or could conflict with the proper performance of the member’s duties (see section 165); or

                     (d)  the member fails, without reasonable excuse, to comply with section 163 or 164 (which deal with the duty to disclose interests).

             (3)  The Agriculture Minister may terminate the appointment of the Chair of the Agriculture Biodiversity Stewardship Market Advisory Committee if the Chair is any of the following:

                     (a)  an employee of the Commonwealth;

                     (b)  an employee of an authority of the Commonwealth;

                     (c)  a person who holds a full‑time office under a law of the Commonwealth.

170  Other terms and conditions

                   An Agriculture Biodiversity Stewardship Market Advisory Committee member holds office on the terms and conditions (if any) in relation to matters not covered by this Act or the rules that are determined by the Agriculture Minister.

171  Assistance to Agriculture Biodiversity Stewardship Market Advisory Committee

             (1)  Any or all of the following bodies:

                     (a)  the Regulator;

                     (b)  the Agriculture Department;

                     (c)  any other Department, agency or authority of the Commonwealth;

may assist the Agriculture Biodiversity Stewardship Market Advisory Committee in the performance of its functions.

             (2)  The assistance may include the following:

                     (a)  the provision of information;

                     (b)  the provision of advice;

                     (c)  the making available of resources and facilities (including secretariat services and clerical assistance).

             (3)  If an officer or employee of a body mentioned in subsection (1) assists the Agriculture Biodiversity Stewardship Market Advisory Committee, the officer or employee is taken, for the purposes of this Act, to be a person assisting the Agriculture Biodiversity Stewardship Market Advisory Committee under this section.

Part 19—Review of decisions

Division 1—Introduction

172  Simplified outline of this Part

Division 2—Decisions of the Regulator

173  Reviewable decisions

                   For the purposes of this Act, each of the following decisions is a reviewable decision:

                     (a)  a decision under section 16 to approve, or refuse to approve, the registration of a biodiversity project;

                     (b)  a decision under rules made for the purposes of section 20, 21 or 22 to vary, or refuse to vary, the registration of a registered biodiversity project;

                     (c)  a decision under rules made for the purposes of section 24 or 25 to cancel, or refuse to cancel, the registration of a registered biodiversity project;

                     (d)  a decision under rules made for the purposes of section 27, 28, 29, 30, 31, 32 or 42 to cancel the registration of a registered biodiversity project;

                     (e)  a decision under section 62 to issue, or refuse to issue, a biodiversity certificate;

                      (f)  a decision under subsection 107(7) to reimburse, or refuse to reimburse, a person for reasonable costs incurred by the person in complying with a notice under subsection 107(2);

                     (g)  a decision under section 110, 111, 112 or 113 to give a relinquishment notice;

                     (h)  a decision under subsection 116(2) to refuse to extend the period mentioned in subsection 116(1);

                      (i)  a decision under a provision of the rules, or under a provision of another legislative instrument made under this Act, if the provision is prescribed by the rules for the purposes of this paragraph.

174  Notice of decision and reconsideration rights to be given—decisions made by delegates of the Regulator

Scope

             (1)  This section applies to a reviewable decision if the decision is made by a delegate of the Regulator.

Notice of decision and reconsideration rights

             (2)  The delegate must take such steps as are reasonable in the circumstances to give notice, in writing or otherwise, to each person whose interests are affected by the decision, of:

                     (a)  the making of the decision; and

                     (b)  the person’s right to have the decision reconsidered under this Part.

Note:          For notification of reviewable decisions made by the Regulator (rather than a delegate), see section 27A of the Administrative Appeals Tribunal Act 1975.

             (3)  A failure to comply with this section does not affect the validity of the decision.

175  Applications for reconsideration of decisions made by delegates of the Regulator

Scope

             (1)  This section applies to a reviewable decision if the decision is made by a delegate of the Regulator.

Note:          For review of decisions not made by a delegate of the Regulator, see subsection 178(2).

Application

             (2)  A person affected by a reviewable decision who is dissatisfied with the decision may apply to the Regulator for the Regulator to reconsider the decision.

             (3)  The application must:

                     (a)  be in a form approved in writing by the Regulator; and

                     (b)  set out the reasons for the application; and

                     (c)  be accompanied by the fee (if any) specified in the rules.

             (4)  The application must be made within:

                     (a)  28 days after the applicant is informed of the decision; or

                     (b)  if, either before or after the end of that period of 28 days, the Regulator extends the period within which the application may be made—the extended period.

             (5)  An approved form of an application may provide for verification by statutory declaration of statements in applications.

             (6)  A fee specified under paragraph (3)(c) must not be such as to amount to taxation.

176  Reconsideration by the Regulator

             (1)  Upon receiving such an application, the Regulator must:

                     (a)  reconsider the decision; and

                     (b)  affirm, vary or revoke the decision.

             (2)  The Regulator’s decision on reconsideration of a decision has effect as if it had been made under the provision under which the original decision was made.

             (3)  The Regulator must give to the applicant a written notice stating the Regulator’s decision on the reconsideration.

             (4)  Within 28 days after making the decision on the reconsideration, the Regulator must give the applicant a written statement of the Regulator’s reasons for the decision.

177  Deadline for reconsideration

             (1)  The Regulator must make its decision on reconsideration of a decision within 90 days after receiving an application for reconsideration.

             (2)  The Regulator is taken, for the purposes of this Part, to have made a decision affirming the original decision if the Regulator has not informed the applicant of its decision on the reconsideration before the end of the period of 90 days.

178  Review by the Administrative Appeals Tribunal

             (1)  Applications may be made to the Administrative Appeals Tribunal to review a reviewable decision if the Regulator has affirmed or varied the decision under section 176.

             (2)  Applications may be made to the Administrative Appeals Tribunal to review a reviewable decision if the decision was not made by a delegate of the Regulator.

Note:          Section 27A of the Administrative Appeals Tribunal Act 1975 requires notification of a decision that is reviewable.

Part 20—Miscellaneous

  

179  Miscellaneous functions of the Regulator

                   The Regulator has the following functions:

                     (a)  to monitor compliance with this Act and the associated provisions;

                     (b)  to promote compliance with this Act and the associated provisions;

                     (c)  to conduct or coordinate education programs about this Act and the associated provisions;

                     (d)  to advise the Agriculture Minister on matters relating to this Act and the associated provisions;

                     (e)  to advise the Agriculture Biodiversity Stewardship Market Advisory Committee on matters relating to the making, variation or revocation of protocol determinations;

                      (f)  to advise and assist persons in relation to their obligations under this Act and the associated provisions;

                     (g)  to advise and assist prospective applicants in connection with ensuring that applications are in accordance with this Act and the associated provisions;

                     (h)  to advise and assist the representatives of persons in relation to compliance by persons with this Act and the associated provisions;

                      (i)  to liaise with regulatory and other relevant bodies, whether in Australia or elsewhere, about cooperative arrangements for matters relating to this Act and the associated provisions;

                      (j)  to advise and assist in relation to the development of the market for:

                              (i)  biodiversity certificates; or

                             (ii)  other certificates, units or credits (however described, and whether issued under a law of the Commonwealth, a State or a Territory, or in some other way) that relate to biodiversity projects;

                     (k)  to collect, analyse, interpret and disseminate statistical information relating to the operation of this Act and the associated provisions.

Note:          See paragraph 12(b) (functions conferred by other laws of the Commonwealth) of the Clean Energy Regulator Act 2011.

180  Treatment of trusts

             (1)  This Act applies to a trust as if it were a person, but with the changes set out in this section.

Trusts with a single trustee

             (2)  If the trust has a single trustee:

                     (a)  an obligation that would otherwise be imposed on the trust by or under this Act is imposed on the trustee instead; and

                     (b)  an offence against this Act that would otherwise have been committed by the trust is taken to have been committed by the trustee.

Trusts with multiple trustees

             (3)  If the trust has 2 or more trustees:

                     (a)  an obligation that would otherwise be imposed on the trust by or under this Act is imposed on each trustee instead, but may be discharged by any of the trustees; and

                     (b)  an offence against this Act that would otherwise have been committed by the trust is taken to have been committed by each trustee of the trust, at the time the offence was committed, who:

                              (i)  did the relevant act or made the relevant omission; or

                             (ii)  aided, abetted, counselled or procured the relevant act or omission; or

                            (iii)  was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly and whether by any act or omission of the trustee).

Contraventions of civil penalty provisions

             (4)  This section applies to a contravention of a civil penalty provision in a corresponding way to the way in which it applies to an offence.

181  Rules may provide for voluntary accreditation of advisers etc.

             (1)  The rules may make provision for and in relation to the voluntary accreditation of persons who give advice, or otherwise provide assistance, in relation to any of the following:

                     (a)  the operation of this Act;

                     (b)  the carrying out of biodiversity projects;

                     (c)  the trading of biodiversity certificates.

             (2)  Without limiting subsection (1), rules made for the purposes of that subsection may do any of the following:

                     (a)  make it a condition of accreditation that a person pass a test relating to the person’s knowledge of the scheme for biodiversity stewardship established by this Act;

                     (b)  make it a condition of accreditation that a person be a fit and proper person to hold the accreditation;

                     (c)  set fees for applications under the rules.

             (3)  A fee set under paragraph (2)(c) must not be such as to amount to taxation.

             (4)  Rules made for the purposes of subsection (1) must not require a person to be accredited in order to engage in an activity referred to in a paragraph of subsection (1).

182  Information previously given to the Regulator

                   If:

                     (a)  on a particular occasion, a person gave information to the Regulator under:

                              (i)  this Act or the rules; or

                             (ii)  the Carbon Credits (Carbon Farming Initiative) Act 2011, or a legislative instrument made under that Act; and

                     (b)  the person is subsequently required or permitted, under this Act or the rules, to give the same information to the Regulator;

the person is taken to have given the information to the Regulator on that later occasion.

183  Delegation by the Agriculture Minister

             (1)  The Agriculture Minister may, in writing, delegate all or any of the Agriculture Minister’s functions or powers under this Act or the rules to:

                     (a)  the Secretary; or

                     (b)  an SES employee, or acting SES employee, in the Agriculture Department.

Note 1:       The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.

Note 2:       Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.

             (2)  In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the Agriculture Minister.

             (3)  Subsection (1) does not apply to a power to make, vary or revoke a legislative instrument.

184  Delegation by the Secretary

             (1)  The Secretary may, in writing, delegate all or any of the Secretary’s functions or powers under this Act or the rules to an SES employee, or acting SES employee, in the Agriculture Department.

Note 1:       The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.

Note 2:       Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.

             (2)  In performing a delegated function or exercising a delegated power, the delegate must comply with any written directions of the Secretary.

185  Concurrent operation of State and Territory laws

                   This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.

186  Law relating to legal professional privilege not affected

                   This Act does not affect the law relating to legal professional privilege.

187  Arrangements with States and Territories

                   The Agriculture Minister may enter into an arrangement with a relevant Minister of a State or Territory in relation to the administration of this Act, including:

                     (a)  arrangements for the performance of the functions of a magistrate under this Act by a magistrate of that State or Territory; and

                     (b)  arrangements for the exercise of the powers conferred by section 84 on relevant land registration officials of that State or Territory; and

                     (c)  arrangements for the exercise of the powers conferred by section 85 on relevant land registration officials of that State or Territory.

188  Liability for damages

                   None of the following:

                     (a)  the Agriculture Minister;

                     (b)  a delegate of the Agriculture Minister;

                     (c)  the Secretary;

                     (d)  a delegate of the Secretary;

                     (e)  the Regulator;

                      (f)  a delegate of the Regulator;

                     (g)  an inspector;

                     (h)  a person assisting an inspector;

                      (i)  an audit team leader;

                      (j)  a person assisting an audit team leader;

                     (k)  an Agriculture Biodiversity Stewardship Market Advisory Committee member;

                      (l)  a person assisting the Agriculture Biodiversity Stewardship Market Advisory Committee;

is liable to an action or other proceeding for damages for, or in relation to, an act or matter in good faith done or omitted to be done:

                    (m)  in the performance or purported performance of any function; or

                     (n)  in the exercise or purported exercise of any power;

conferred by this Act or the associated provisions.

189  Executive power of the Commonwealth

                   This Act does not, by implication, limit the executive power of the Commonwealth.

190  Notional payments by the Commonwealth

             (1)  The purpose of this section is to ensure that amounts payable under this Act or the rules are notionally payable by the Commonwealth (or parts of the Commonwealth).

             (2)  The Minister responsible for administering the Public Governance, Performance and Accountability Act 2013 may give written directions for the purposes of this section, including directions relating to the transfer of amounts within, or between, accounts operated by the Commonwealth.

191  Compensation for acquisition of property

             (1)  If the operation of this Act, the rules or a protocol determination would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the person.

             (2)  If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in:

                     (a)  the Federal Court; or

                     (b)  the Supreme Court of a State or Territory;

for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

192  Native title rights not affected

                   This Act does not affect the operation of the Native Title Act 1993.

193  Racial Discrimination Act not affected

                   This Act does not affect the operation of the Racial Discrimination Act 1975.

194  Approval of registration of biodiversity project—eligible land

                   If this Act in any of its operations would be invalid under section 99 of the Constitution by reason of paragraph 16(4)(b) of this Act, it is the intention of the Parliament that paragraph 16(4)(b) of this Act does not operate in any circumstances.

195  Administrative decisions under the rules

                   The rules may make provision in relation to a matter by conferring a power to make a decision of an administrative character on the Regulator.

196  Review of operation of this Act etc.

             (1)  The Agriculture Minister must cause a review of the operation of the following to be commenced within 5 years of the day determined by the Agriculture Minister under subsection 12(2):

                     (a)  this Act;

                     (b)  the rules.

Note:          The day determined by the Agriculture Minister under subsection 12(2) is the first day on which applications may be made for the Regulator to approve the registration of a biodiversity project.

             (2)  The review must include a review of:

                     (a)  the extent to which this Act has achieved the objects of this Act; and

                     (b)  any other matters that the Agriculture Minister directs, in writing, the review to consider.

             (3)  The review must make provision for public consultation.

             (4)  The persons undertaking the review must give the Agriculture Minister a written report of the review within 12 months of the review being commenced.

             (5)  The report of the review:

                     (a)  must set out any directions given by the Agriculture Minister under paragraph (2)(b); and

                     (b)  may set out recommendations to the Commonwealth Government.

             (6)  The Agriculture Minister must cause a copy of the report of the review to be:

                     (a)  tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Agriculture Minister; and

                     (b)  published on the Agriculture Department’s website as soon as practicable after the report is given to the Agriculture Minister.

             (7)  If the report of the review sets out one or more recommendations to the Commonwealth Government:

                     (a)  as soon as practicable after receiving the report, the Agriculture Minister must cause to be prepared a statement setting out the Commonwealth Government’s response to each of the recommendations; and

                     (b)  within 6 months after receiving the report, the Agriculture Minister must cause copies of the statement to be tabled in each House of the Parliament.

             (8)  A direction given under paragraph (2)(b) is not a legislative instrument.

197  Rules

             (1)  The Agriculture Minister may, by legislative instrument, make rules prescribing matters:

                     (a)  required or permitted by this Act to be prescribed by the rules; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.

             (2)  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;

                     (c)  impose a tax;

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

                     (e)  directly amend the text of this Act.

             (3)  Despite subsection 14(2) of the Legislation Act 2003, the rules may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or other writing as in force or existing from time to time.