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This is a Bill, not an Act. For current law, see the Acts databases.
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
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
i
Contents
Part 1--Preliminary
1
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 2
3
Objects of this Act ............................................................................. 2
4
Simplified outline of this Act ............................................................ 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
ii
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
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
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
iii
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
iv
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
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
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
v
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
vi
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
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
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
vii
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
viii
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
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
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
ix
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
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Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
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
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
1
A Bill for an Act to establish a national voluntary
1
framework for projects to enhance or protect
2
biodiversity, and for other purposes
3
The Parliament of Australia enacts:
4
Part 1--Preliminary
5
6
1 Short title
7
This Act is the
Agriculture Biodiversity Stewardship Market Act
8
2022
.
9
Part 1
Preliminary
Section 2
2
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
2 Commencement
1
(1) Each provision of this Act specified in column 1 of the table
2
commences, or is taken to have commenced, in accordance with
3
column 2 of the table. Any other statement in column 2 has effect
4
according to its terms.
5
6
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
7
enacted. It will not be amended to deal with any later amendments of
8
this Act.
9
(2) Any information in column 3 of the table is not part of this Act.
10
Information may be inserted in this column, or information in it
11
may be edited, in any published version of this Act.
12
3 Objects of this Act
13
The objects of this Act are:
14
(a) to establish a framework for a market that facilitates projects
15
to enhance or protect biodiversity in native species in
16
Australia; and
17
(b) to contribute to meeting Australia's international obligations
18
in relation to biodiversity.
19
4 Simplified outline of this Act
20
A biodiversity project is a project to enhance or protect
21
biodiversity in native species.
22
An eligible person may apply for a biodiversity project to be
23
registered on the Agriculture Biodiversity Stewardship Market
24
Register. To be registered, a biodiversity project must meet various
25
requirements including requirements:
26
Preliminary
Part 1
Section 4
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
3
(a)
to be carried out on certain kinds of land in Australia;
1
and
2
(b)
to be carried out by one or more project proponents
3
(including the applicant) who meet a fit and proper
4
person test; and
5
(c)
to be covered by a protocol determination.
6
Protocol determinations are legislative instruments that cover
7
particular kinds of biodiversity projects, and set out how a project
8
is to be carried out and the circumstances in which a biodiversity
9
certificate will be issued for a project.
10
A biodiversity certificate represents the biodiversity outcome that a
11
registered biodiversity project is designed to achieve. Biodiversity
12
certificates are the property of their registered holders, and may be
13
transferred.
14
This Act imposes certain obligations on project proponents. These
15
obligations include:
16
(a)
obligations to comply with requirements in the protocol
17
determination that covers a project; and
18
(b)
reporting and notification obligations; and
19
(c)
record-keeping and monitoring obligations.
20
This Act is administered by the Agriculture Minister and the Clean
21
Energy Regulator. The Regulator has a range of powers available
22
to enforce the obligations of a project proponent, including the
23
following:
24
(a)
civil penalties (some of which apply only after a
25
biodiversity certificate has been issued for a project);
26
(b)
other powers under the Regulatory Powers Act;
27
(c)
powers to require projects to be audited;
28
(d)
powers to require project proponents to relinquish
29
biodiversity certificates;
30
(e)
the power to make a biodiversity maintenance
31
declaration that prohibits certain activities in a project
32
area.
33
Part 1
Preliminary
Section 5
4
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
This Act also contains provisions for:
1
(a)
the establishment of the Agriculture Biodiversity
2
Stewardship Market Advisory Committee to advise the
3
Agriculture Minister in relation to the Minister's
4
functions under this Act; and
5
(b)
biodiversity integrity standards which a protocol
6
determination must meet; and
7
(c)
the Regulator to maintain an online platform to facilitate
8
trading in biodiversity certificates and for other
9
purposes, in accordance with the rules; and
10
(d)
internal review of decisions under the Act, and review
11
by the Administrative Appeals Tribunal.
12
5 Crown to be bound
13
(1) This Act binds the Crown in each of its capacities.
14
(2) This Act does not make the Crown liable to a pecuniary penalty or
15
to be prosecuted for an offence.
16
(3) The protection in subsection (2) does not apply to an authority of
17
the Crown.
18
6 Extension to external Territories
19
This Act extends to every external Territory.
20
7 Definitions
21
In this Act:
22
Aboriginal person
has the same meaning as in the
Aboriginal and
23
Torres Strait Islander Act 2005
.
24
activity period
of a registered biodiversity project means the
25
activity period identified in the notice of approval of registration
26
under paragraph 16(6)(e), subject to any variation under rules made
27
for the purposes of paragraph 21(1)(c).
28
Preliminary
Part 1
Section 7
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
5
Agriculture Biodiversity Stewardship Market
Advisory Committee
1
means the committee established by section 156.
2
Agriculture Biodiversity Stewardship Market Advisory Committee
3
member
means a member of the Agriculture Biodiversity
4
Stewardship Market Advisory Committee, and includes the Chair
5
of the Agriculture Biodiversity Stewardship Market Advisory
6
Committee.
7
Agriculture Department
means the Department administered by
8
the Agriculture Minister.
9
Agriculture Minister
means the Minister administering the
10
Primary Industries Research and Development Act 1989
.
11
associated provisions
means the following provisions:
12
(a) the provisions of the rules;
13
(b) the provisions of a protocol determination;
14
(c) sections 134.1, 134.2, 135.1, 135.2, 135.4, 136.1, 137.1 and
15
137.2 of the
Criminal Code
, in so far as those sections relate
16
to:
17
(i) this Act; or
18
(ii) the rules; or
19
(iii) a protocol determination.
20
audit team leader
means a registered greenhouse and energy
21
auditor appointed under any of the following provisions:
22
(a) paragraph 13(3)(a);
23
(b) paragraph 60(1)(f);
24
(c) paragraph 91(1)(d);
25
(d) paragraph 107(2)(a);
26
(e) subsection 108(1).
27
biodiversity
means the variability among living organisms from all
28
sources (including terrestrial, marine and other aquatic ecosystems
29
and the ecological complexes of which they are part) and includes:
30
(a) diversity within species and between species; and
31
(b) diversity of ecosystems.
32
Part 1
Preliminary
Section 7
6
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
biodiversity certificate
means a certificate issued under section 62.
1
biodiversity conservation contract
: see section 70.
2
biodiversity conservation contractor
: see section 70.
3
biodiversity conservation purchasing process
: see section 74.
4
Biodiversity Convention
means the Convention on Biological
5
Diversity, done at Rio de Janeiro on 5 June 1992, as in force for
6
Australia from time to time.
7
Note:
The Convention is in Australian Treaty Series 1993 No. 32 ([1993]
8
ATS 32) and could in 2022 be viewed in the Australian Treaties
9
Library on the AustLII website (http://www.austlii.edu.au).
10
biodiversity integrity standards
: see section 57.
11
biodiversity maintenance area
, in relation to a biodiversity
12
maintenance declaration: see subsection 120(1).
13
biodiversity maintenance declaration
means a declaration made
14
by the Regulator under subsection 120(1).
15
biodiversity outcome
, in relation to a biodiversity project, means
16
the enhancement or protection of biodiversity that the project is
17
designed to achieve.
18
biodiversity project
means a project, carried out in a particular
19
area, that is designed to enhance or protect biodiversity in native
20
species (whether the effect on biodiversity occurs within or outside
21
the area).
22
Chapter 5 body corporate
has the same meaning as in the
23
Corporations Act 2001
.
24
civil penalty order
has the same meaning as in the Regulatory
25
Powers Act.
26
civil penalty provision
has the same meaning as in the Regulatory
27
Powers Act.
28
Preliminary
Part 1
Section 7
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
7
covers
: a protocol determination
covers
a registered biodiversity
1
project if the entry for the project in the Register states that the
2
protocol determination covers the project.
3
Crown land
means land that is the property of:
4
(a) the Commonwealth, a State or a Territory; or
5
(b) a statutory authority of:
6
(i) the Commonwealth; or
7
(ii) a State; or
8
(iii) a Territory.
9
For this purpose, it is immaterial whether the land is:
10
(c) subject to a lease or licence; or
11
(d) covered by a reservation, proclamation, dedication,
12
condition, permission or authority, made or conferred by the
13
Commonwealth, the State or the Territory; or
14
(e) covered by the making, amendment or repeal of legislation of
15
the Commonwealth, the State or the Territory under which
16
the whole or a part of the land is to be used for a public
17
purpose or public purposes; or
18
(f) held on trust for the benefit of another person; or
19
(g) subject to native title.
20
Crown lands Minister
:
21
(a) in relation to a State--means the Minister of the State who,
22
under the rules, is taken to be the Crown lands Minister of
23
the State; or
24
(b) in relation to the Northern Territory--means the Minister of
25
the Northern Territory who, under the rules, is taken to be the
26
Crown lands Minister of the Northern Territory; or
27
(c) in relation to the Australian Capital Territory--means the
28
Minister of the Australian Capital Territory who, under the
29
rules, is taken to be the Crown lands Minister of the
30
Australian Capital Territory; or
31
(d) in relation to a Territory other than the Northern Territory or
32
the Australian Capital Territory--means the person who,
33
under the rules, is taken to be the Crown lands Minister of
34
the Territory.
35
Part 1
Preliminary
Section 7
8
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
declared prohibited activity
, in relation to a biodiversity
1
maintenance area, means an activity specified under subsection
2
120(4) in relation to the biodiversity maintenance area.
3
director
includes a constituent member of a body corporate
4
incorporated for a public purpose by a law of the Commonwealth,
5
a State or a Territory.
6
electronic notice transmitted to the Regulator
has the meaning
7
given by section 10.
8
eligible interest
, in relation to an area of land, has the meaning
9
given by section 80, 81 or 82.
10
eligible land
: see section 8.
11
eligible person
means any of the following:
12
(a) an individual;
13
(b) a body corporate;
14
(c) a trust;
15
(d) a corporation sole.
16
eligible voluntary action
means:
17
(a) making an application; or
18
(b) giving information in connection with an application; or
19
(c) withdrawing an application; or
20
(d) giving a notice (including an electronic notice); or
21
(e) making a submission; or
22
(f) making a request; or
23
(g) giving information in connection with a request;
24
to the Regulator, where the application, information, notice,
25
submission or request is permitted, but not required, to be made,
26
given or withdrawn, as the case may be, under this Act or an
27
instrument made under this Act.
28
engage in conduct
means:
29
(a) do an act; or
30
(b) omit to perform an act.
31
excluded biodiversity project
: see section 34.
32
Preliminary
Part 1
Section 7
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
9
exclusive possession native title land
means native title land,
1
where the native title confers a right of exclusive possession over
2
the land.
3
executive officer
of a body corporate means:
4
(a) a director of the body corporate; or
5
(b) the chief executive officer (however described) of the body
6
corporate; or
7
(c) the chief financial officer (however described) of the body
8
corporate; or
9
(d) the secretary of the body corporate.
10
Federal Court
means the Federal Court of Australia.
11
fit and proper person test
: for when an eligible person passes the
12
fit and proper person test
, see section 87.
13
freehold land rights land
means land, where:
14
(a) a freehold estate exists over the land, and the grant of the
15
freehold estate took place under a law of a State or a
16
Territory that makes provision for the grant of such things
17
only to, or for the benefit of, Aboriginal persons or Torres
18
Strait Islanders; or
19
(b) a freehold estate exists over the land, and the grant of the
20
freehold estate took place under a law of the Commonwealth
21
that makes provision for the grant of such things only to, or
22
for the benefit of, Aboriginal persons or Torres Strait
23
Islanders; or
24
(c) the land is vested in a person, and the vesting took place
25
under a law of the Commonwealth that makes provision for
26
the vesting of land only in, or for the benefit of, Aboriginal
27
persons or Torres Strait Islanders.
28
holder
of a biodiversity certificate means the person recorded in
29
the Register as the holder of the certificate.
30
indigenous land use agreement
has the same meaning as in the
31
Native Title Act 1993
.
32
Part 1
Preliminary
Section 7
10
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
inspector
means a person appointed as an inspector under
1
section 148.
2
land rights land
means land, where:
3
(a) a freehold estate exists, or a lease is in force, over the land,
4
where the grant of the freehold estate or lease took place
5
under legislation that makes provision for the grant of such
6
things only to, or for the benefit of, Aboriginal persons or
7
Torres Strait Islanders; or
8
(b) the land is vested in a person, where the vesting took place
9
under legislation that makes provision for the vesting of land
10
only in, or for the benefit of, Aboriginal persons or Torres
11
Strait Islanders; or
12
(c) neither paragraph (a) nor (b) applies, and the land is held
13
expressly for the benefit of, or is held in trust expressly for
14
the benefit of, Aboriginal persons or Torres Strait Islanders;
15
or
16
(d) the land is reserved expressly for the benefit of Aboriginal
17
persons or Torres Strait Islanders; or
18
(e) the land is specified in the rules.
19
Note:
For specification by class, see subsection 13(3) of the
Legislation Act
20
2003
.
21
lease
, in relation to land rights land, includes:
22
(a) a lease enforceable in equity; and
23
(b) a contract that contains a statement to the effect that it is a
24
lease; and
25
(c) anything that, at or before the time of its creation, is, for any
26
purpose, by a law of the Commonwealth, a State or a
27
Territory, declared to be or described as a lease.
28
maintained project
, in relation to a biodiversity maintenance
29
declaration: see paragraph 120(1)(a).
30
National Native Title Register
has the same meaning as in the
31
Native Title Act 1993
.
32
native title
has the same meaning as in the
Native Title Act 1993
.
33
Preliminary
Part 1
Section 7
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
11
native title land
: an area of land is
native title land
if there is an
1
entry on the National Native Title Register specifying that native
2
title exists in relation to the area.
3
natural disturbance
, in relation to a registered biodiversity project,
4
means any of the following events, where the event could not
5
reasonably be prevented by the project proponent for the project:
6
(a) flood;
7
(b) bushfire;
8
(c) drought;
9
(d) pest attack;
10
(e) disease;
11
(f) an event specified in the rules.
12
paid work
means work for financial gain or reward (whether as an
13
employee, a self-employed person or otherwise).
14
permanence period
of a registered biodiversity project means the
15
permanence period identified in the notice of approval of
16
registration under paragraph 16(6)(e), subject to any variation
17
under rules made for the purposes of paragraph 21(1)(d).
18
project
includes a set of activities.
19
project area
, in relation to a biodiversity project, means the area of
20
land, or areas of land, on which the project has been, is being, or is
21
to be carried out.
22
project proponent
, in relation to a registered biodiversity project,
23
means the eligible person who is recorded in the Register as the
24
project proponent for the project.
25
Note:
For projects with multiple project proponents, see Part 3.
26
protocol determination
means a determination under subsection
27
45(1).
28
Register
means the Agriculture Biodiversity Stewardship Market
29
Register kept by the Regulator under subsection 127(1).
30
registered biodiversity project
means a biodiversity project that is
31
registered on the Register (other than a former registered
32
Part 1
Preliminary
Section 7
12
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
biodiversity project in relation to which information is set out in
1
the Register under rules made for the purposes of subsection
2
128(3)).
3
registered greenhouse and energy auditor
has the same meaning
4
as in the
National Greenhouse and Energy Reporting Act 2007
.
5
registered indigenous land use agreement
means an indigenous
6
land use agreement the details of which are entered on the Register
7
of Indigenous Land Use Agreements.
8
registered native title body corporate
has the same meaning as in
9
the
Native Title Act 1993
.
10
Register of Indigenous Land Use Agreements
has the same
11
meaning as in the
Native Title Act 1993
.
12
Regulator
means the Clean Energy Regulator.
13
Note:
The Clean Energy Regulator is established by the
Clean Energy
14
Regulator Act 2011
.
15
regulatory approval
, in relation to a biodiversity project, means an
16
approval, licence or permit (however described) that:
17
(a) relates to the project or to an element of the project; and
18
(b) is required under a law of the Commonwealth (other than this
19
Act), a State or a Territory that relates to:
20
(i) land use or development; or
21
(ii) the environment; or
22
(iii) water.
23
Regulatory Powers Act
means the
Regulatory Powers (Standard
24
Provisions) Act 2014
.
25
relevant land registration official
:
26
(a) in relation to a biodiversity project that is or was a registered
27
biodiversity project--means the Registrar of Titles or other
28
proper officer of the State or Territory in which the project
29
area or areas are situated; or
30
(b) in relation to an area of land that is or was a biodiversity
31
maintenance area--means the Registrar of Titles or other
32
Preliminary
Part 1
Section 7
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
13
proper officer of the State or Territory in which the area of
1
land is situated.
2
relinquishment equivalence requirements
: see subsection 117(2).
3
relinquishment notice
means a notice given by the Regulator
4
under any of the following provisions:
5
(a) subsection 110(2) (false or misleading information);
6
(b) subsection 111(2) (cancellation of registration of biodiversity
7
project);
8
(c) subsection 112(2) (reversal of biodiversity outcome other
9
than due to natural disturbance or conduct etc.);
10
(d) subsection 113(2) (reversal of biodiversity outcome due to
11
natural disturbance or conduct and no mitigation happens).
12
reviewable decision
has the meaning given by section 173.
13
rules
means rules made under section 197.
14
Secretary
means the Secretary of the Agriculture Department.
15
statutory authority
of the Commonwealth, a State or a Territory,
16
means an authority or body (including a corporation sole)
17
established by or under a law of the Commonwealth, the State or
18
the Territory (other than a general law allowing incorporation as a
19
company or body corporate), but does not include:
20
(a) an Aboriginal Land Trust established under the
Aboriginal
21
Land Rights (Northern Territory) Act 1976
; or
22
(b) the Wreck Bay Aboriginal Community Council established
23
by the
Aboriginal Land Grant (Jervis Bay Territory) Act
24
1986
; or
25
(c) a corporation registered under the
Corporations (Aboriginal
26
and Torres Strait Islander) Act 2006
; or
27
(d) an authority or body that is:
28
(i) established by or under a law of the Commonwealth, a
29
State or a Territory; and
30
(ii) specified in the rules.
31
Torrens system land
: land is
Torrens system land
if the title to the
32
land is registered under a Torrens system of registration.
33
Part 1
Preliminary
Section 8
14
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Torres Strait Islander
has the same meaning as in the
Aboriginal
1
and Torres Strait Islander Act 2005
.
2
vacancy
, in relation to the office of an Agriculture Biodiversity
3
Stewardship Market Advisory Committee member, has a meaning
4
affected by section 9.
5
8 Meaning of eligible land
6
(1) For the purposes of this Act,
eligible land
means agricultural land
7
in Australia.
8
(2) However, the rules may provide for
eligible land
to have the
9
meaning prescribed by the rules. If the rules do so, subsection (1)
10
does not apply.
11
Note:
A change in the meaning of
eligible land
does not affect a biodiversity
12
project that is already registered when the change takes effect.
13
(3) Rules made for the purposes of subsection (2) must not provide for
14
land outside Australia to be eligible land.
15
9 Vacancy in the office of an Agriculture Biodiversity Stewardship
16
Market Advisory Committee member
17
For the purposes of a reference in:
18
(a) this Act to a
vacancy
in the office of an Agriculture
19
Biodiversity Stewardship Market Advisory Committee
20
member; or
21
(b) the
Acts Interpretation Act 1901
to a
vacancy
in the
22
membership of a body;
23
there are taken to be 3 offices of Agriculture Biodiversity
24
Stewardship Market Advisory Committee member in addition to
25
the Chair of the Committee.
26
10 Electronic notice transmitted to the Regulator
27
(1) For the purposes of this Act, a notice is an
electronic notice
28
transmitted to the Regulator
if, and only if:
29
(a) the notice is transmitted to the Regulator by means of an
30
electronic communication; and
31
Preliminary
Part 1
Section 10
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
15
(b) if the Regulator requires that the notice be transmitted, in
1
accordance with particular information technology
2
requirements, by means of a particular kind of electronic
3
communication--the Regulator's requirement has been met;
4
and
5
(c) the notice complies with rules made for the purposes of
6
subsection (2).
7
(2) The rules may make provision for or in relation to the security and
8
authenticity of notices transmitted to the Regulator by means of an
9
electronic communication.
10
(3) Rules made for the purposes of subsection (2) may deal with:
11
(a) encryption; and
12
(b) authentication of identity.
13
(4) Subsection (3) does not limit subsection (2).
14
(5) For the purposes of this Act, if a notice is transmitted to the
15
Regulator by means of an electronic communication, the notice is
16
taken to have been transmitted on the day on which the electronic
17
communication is dispatched.
18
(6) Subsection (5) of this section has effect despite section 14A of the
19
Electronic Transactions Act 1999
.
20
(7) This section does not, by implication, limit the regulations that may
21
be made under the
Electronic Transactions Act 1999
.
22
Part 2
Registered biodiversity projects
Division 1
Introduction
Section 11
16
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Part 2--Registered biodiversity projects
1
Division 1--Introduction
2
11 Simplified outline of this Part
3
The Regulator may, if certain criteria are satisfied, register a
4
biodiversity project on application by an eligible person who is to
5
be the project proponent, or one of the project proponents, of the
6
project.
7
Division 3 provides for the registration of a registered biodiversity
8
project to be varied.
9
Division 4 provides for the registration of a registered biodiversity
10
project to be cancelled, either:
11
(a)
voluntarily, with different procedures applying
12
depending on whether a biodiversity certificate has been
13
issued; or
14
(b)
unilaterally by the Regulator, if the project or the project
15
proponent does not satisfy certain conditions and
16
requirements.
17
Division 5 provides for the rules to prescribe certain kinds of
18
biodiversity projects as excluded biodiversity projects, which may
19
not be registered.
20
Registered biodiversity projects
Part 2
Registration of biodiversity project
Division 2
Section 12
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
17
Division 2--Registration of biodiversity project
1
12 Application for approval of registration of biodiversity project
2
(1) An eligible person may apply to the Regulator for the Regulator to
3
approve the registration of a biodiversity project on the Register.
4
Note 1:
The applicant will be registered as the project proponent, or one of the
5
project proponents, for the project.
6
Note 2:
The Regulator has a function of providing advice and assistance in
7
relation to the making of applications: see section 179.
8
(2) However, applications under subsection (1) may be made only on
9
or after a day determined by the Agriculture Minister by legislative
10
instrument.
11
13 Form of application
12
(1) An application must:
13
(a) be in writing; and
14
(b) be in a form approved, in writing, by the Regulator.
15
(2) An application must:
16
(a) specify the proposed project area; and
17
(b) if the project is to have more than one project proponent--
18
specify the eligible persons who are proposed to be the
19
project proponents along with the applicant; and
20
(c) specify the protocol determination (the
applicable protocol
21
determination
) that is proposed to cover the project; and
22
(d) specify the proposed activity period, and the proposed
23
permanence period, which must be worked out in accordance
24
with the applicable protocol determination; and
25
(e) include such other information as is specified in the rules;
26
and
27
(f) include such other information as is specified in the
28
applicable protocol determination.
29
(3) An application must be accompanied by:
30
Part 2
Registered biodiversity projects
Division 2
Registration of biodiversity project
Section 14
18
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
(a) if the rules or the applicable protocol determination provides
1
that this paragraph applies to the proposed project--a
2
prescribed audit report prepared by a registered greenhouse
3
and energy auditor who has been appointed as an audit team
4
leader for the purpose; and
5
(b) if there are to be project proponents other than the
6
applicant--evidence that each other project proponent
7
consents to being a project proponent for the project; and
8
(c) if an indigenous land use agreement is relevant to the
9
Regulator's decision on the application--a copy of relevant
10
parts of the agreement; and
11
(d) such other documents (if any) as are specified in the rules;
12
and
13
(e) such other documents (if any) as are specified in the
14
applicable protocol determination; and
15
(f) the fee (if any) specified in the rules.
16
(4) The approved form of application may provide for verification by
17
statutory declaration of statements in applications.
18
(5) A fee specified under paragraph (3)(f) must not be such as to
19
amount to taxation.
20
14 Further information
21
(1) The Regulator may, by written notice given to an applicant, require
22
the applicant to give the Regulator, within the period specified in
23
the notice, further information in connection with the application.
24
(2) If the applicant breaches the requirement, the Regulator may, by
25
written notice given to the applicant:
26
(a) refuse to consider the application; or
27
(b) refuse to take any action, or any further action, in relation to
28
the application.
29
15 Withdrawal of application
30
(1) An applicant may withdraw the application at any time before the
31
Regulator makes a decision on the application.
32
Registered biodiversity projects
Part 2
Registration of biodiversity project
Division 2
Section 16
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
19
(2) If the applicant does so, this Act does not prevent the applicant
1
from making a fresh application.
2
(3) If:
3
(a) the applicant withdraws the application; and
4
(b) the applicant has paid a fee in relation to the application;
5
the Regulator must, on behalf of the Commonwealth, refund the
6
application fee.
7
16 Approval of registration of biodiversity project
8
Scope
9
(1) This section applies if an application under section 12 has been
10
made for the Regulator to approve the registration of a biodiversity
11
project.
12
Approval
13
(2) After considering the application, the Regulator may decide to:
14
(a) approve the registration of the biodiversity project, and
15
register the project on the Register; or
16
(b) refuse to approve the registration of the biodiversity project.
17
Note:
For review of decisions, see Part 19.
18
(3) The Regulator must give written notice of a decision under
19
subsection (2) to:
20
(a) the applicant; and
21
(b) if the decision is a decision to approve the registration of the
22
biodiversity project--the relevant land registration official.
23
Criteria for approval
24
(4) The Regulator must not approve the registration of the biodiversity
25
project unless the Regulator is satisfied that:
26
(a) the project is being, or is to be, carried on in Australia; and
27
(b) all land included or to be included in the project area or areas
28
is eligible land; and
29
Part 2
Registered biodiversity projects
Division 2
Registration of biodiversity project
Section 16
20
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
(c) the project is of a kind specified, for the purposes of
1
paragraph 45(1)(a), in the protocol determination (the
2
applicable protocol determination
) that is specified in the
3
application under paragraph 13(2)(c); and
4
(d) the activity period and permanence period for the project
5
have been worked out in accordance with the applicable
6
protocol determination; and
7
(e) the project meets any conditions set out in the applicable
8
protocol determination under paragraph 45(1)(b); and
9
(f) the applicant is to be registered as the project proponent, or
10
one of the project proponents, for the project; and
11
(g) the project proponent, or each of the project proponents, is an
12
eligible person; and
13
(h) the project proponent, or each of the project proponents,
14
passes the fit and proper person test; and
15
(i) the project area, or each project area, meets the requirements
16
set out in subsection (5) of this section; and
17
(j) the project area, or all of the project areas, are in the same
18
State or Territory; and
19
(k) the project meets the eligibility requirements (if any)
20
specified in the rules; and
21
(l) the project is not an excluded biodiversity project.
22
Note 1:
Protocol determinations are made under section 45.
23
Note 2:
For
excluded biodiversity project
, see section 34.
24
Note 3:
For the
fit and proper person test
, see section 87.
25
(5) The requirements mentioned in paragraph (4)(i) are:
26
(a) the project area is Torrens system land or Crown land; and
27
(b) the project area is not specified in the rules.
28
Matters to be included in notice
29
(6) If the Regulator approves the registration of the biodiversity
30
project, the notice must:
31
(a) identify the name of the project; and
32
(b) identify, in accordance with the rules, the project area or
33
project areas; and
34
Registered biodiversity projects
Part 2
Registration of biodiversity project
Division 2
Section 17
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
21
(c) identify the project proponent or project proponents for the
1
project; and
2
(d) identify the applicable protocol determination; and
3
(e) identify the activity period and the permanence period for the
4
project; and
5
(f) if the registration is subject to a condition under section 18 or
6
19--set out the condition; and
7
(g) identify such attributes of the project as are specified in the
8
rules.
9
Timing
10
(7) The Regulator must take all reasonable steps to ensure that a
11
decision is made on the application:
12
(a) if the Regulator requires the applicant to give further
13
information under subsection 14(1) in relation to the
14
application--within 90 days after the applicant gave the
15
Regulator the information; or
16
(b) otherwise--within 90 days after the application was made.
17
17 Suspension of processing of applications for registrations of
18
biodiversity projects
19
Order
20
(1) The Agriculture Minister may, by legislative instrument, order that,
21
if:
22
(a) an application is made under section 12 during a specified
23
period; and
24
(b) the application relates to a biodiversity project that is
25
proposed to be covered by a protocol determination specified
26
in the order;
27
the Regulator must not:
28
(c) consider the application during that period; or
29
(d) make a decision on the application during that period.
30
(2) A period specified in an order under subsection (1):
31
(a) must start at the commencement of the order; and
32
Part 2
Registered biodiversity projects
Division 2
Registration of biodiversity project
Section 17
22
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
(b) must not be longer than 12 months.
1
(3) The Agriculture Minister may make an order under subsection (1)
2
that relates to a particular protocol determination only if the
3
Agriculture Biodiversity Stewardship Market Advisory Committee
4
has advised the Agriculture Minister that the Committee is satisfied
5
that there is reasonable evidence that the protocol determination
6
does not comply with one or more of the biodiversity integrity
7
standards.
8
(4) The Agriculture Biodiversity Stewardship Market Advisory
9
Committee may give the Agriculture Minister advice for the
10
purposes of subsection (3):
11
(a) on the Committee's own initiative; or
12
(b) on request by the Agriculture Minister.
13
(5) If the Agriculture Biodiversity Stewardship Market Advisory
14
Committee gives the Agriculture Minister advice for the purposes
15
of subsection (3), the Agriculture Department must publish the
16
advice on the Agriculture Department's website (whether or not
17
the Agriculture Minister follows the advice).
18
(6) To avoid doubt, Subdivisions D (advice about making, varying or
19
revoking protocol determinations) and E (consultation by the
20
Agriculture Biodiversity Stewardship Market Advisory
21
Committee) of Division 2 of Part 4 do not apply to advice given by
22
the Committee under subsection (4) of this section.
23
Compliance with order
24
(7) The Regulator must comply with an order under subsection (1).
25
Timing of decision on application
26
(8) If an application made under section 12 is or was covered by an
27
order under subsection (1) of this section, subsection 16(7) (timing
28
of decision on application) does not apply to the application.
29
Registered biodiversity projects
Part 2
Registration of biodiversity project
Division 2
Section 18
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
23
18 Registration may be subject to condition about obtaining
1
regulatory approvals
2
Scope
3
(1) This section applies if:
4
(a) an application under section 12 has been made for the
5
Regulator to approve the registration of a biodiversity
6
project; and
7
(b) the Regulator decides to approve the registration of the
8
biodiversity project under section 16; and
9
(c) the Regulator is not satisfied that all regulatory approvals
10
have been obtained for the project.
11
Condition
12
(2) The Regulator must set out in the notice under subsection 16(3)
13
that the registration is subject to the condition that a biodiversity
14
certificate is not to be issued in respect of the project until all
15
regulatory approvals are obtained for the project.
16
19 Registration may be subject to condition about obtaining
17
consents from eligible interest holders
18
Scope
19
(1) This section applies if:
20
(a) an application under section 12 has been made for the
21
Regulator to approve the registration of a biodiversity
22
project; and
23
(b) the Regulator decides under section 16 to approve the
24
registration of the biodiversity project; and
25
(c) the Regulator is satisfied that there are one or more persons
26
(the
relevant interest-holders
) who:
27
(i) hold an eligible interest in the project area, or any of the
28
project areas, for the project; and
29
(ii) have not consented, in writing, to the making of the
30
application.
31
Part 2
Registered biodiversity projects
Division 2
Registration of biodiversity project
Section 19
24
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Condition
1
(2) The Regulator must set out in the notice under subsection 16(3)
2
that the registration is subject to the condition that a biodiversity
3
certificate is not to be issued in respect of the project until the
4
written consent of each relevant interest-holder to the registration
5
is obtained.
6
Consents
7
(3) A consent mentioned in subparagraph (1)(c)(ii) or subsection (2)
8
must be in a form approved, in writing, by the Regulator.
9
(4) A consent mentioned in subparagraph (1)(c)(ii) or subsection (2)
10
may be set out in a registered indigenous land use agreement.
11
(5) Subsection (3) does not apply to a consent mentioned in
12
subparagraph (1)(c)(ii) or subsection (2) if the consent is set out in
13
a registered indigenous land use agreement.
14
Registered biodiversity projects
Part 2
Variation of registration
Division 3
Section 20
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
25
Division 3--Variation of registration
1
20 Voluntary variation of registration of biodiversity project--
2
change in identity of project proponent
3
(1) The rules may make provision for and in relation to empowering
4
the Regulator to vary the registration of a registered biodiversity
5
project to:
6
(a) add an eligible person as a project proponent of the project;
7
or
8
(b) remove a project proponent from the project (so long as this
9
would not result in there not being any project proponents for
10
the project).
11
Note 1:
See also section 23 (procedures for voluntary variation of registration
12
of biodiversity project).
13
Note 2:
For review of decisions, see Part 19.
14
(2) Rules made for the purposes of subsection (1) must not empower
15
the Regulator to vary a registration unless:
16
(a) if there is a project proponent for the project--the project
17
proponent applies to the Regulator for the variation; and
18
(b) any eligible person that is to be added as a project proponent
19
for the project consents, in writing, to the variation; and
20
(c) the Regulator is satisfied that any eligible person that is to be
21
added as a project proponent for the project passes the fit and
22
proper person test; and
23
(d) if a biodiversity certificate is in effect in relation to the
24
project, and the project proponent (if any) is not the holder of
25
the certificate--the holder of the certificate has been notified
26
of the proposed variation, and has been given the opportunity
27
to make submissions in relation to the proposed variation.
28
Note:
For the
fit and proper person test
, see section 87.
29
(3) Rules made for the purposes of subsection (1) may empower the
30
Regulator to require the Commonwealth to be given security in
31
relation to the fulfilment of any requirements to relinquish
32
biodiversity certificates that may be imposed under Part 12 in
33
Part 2
Registered biodiversity projects
Division 3
Variation of registration
Section 21
26
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
relation to the project (whether or not the circumstances that may
1
result in a relinquishment notice being given exist at the time the
2
variation is made).
3
(4) Rules made for the purposes of subsection (1) may empower the
4
Regulator to refuse an application to remove a project proponent
5
from a registered biodiversity project unless the Regulator is
6
satisfied that the remaining project proponents would have the
7
capability and resources to carry out the project.
8
21 Voluntary variation of registration of biodiversity project--
9
changes in project area etc.
10
(1) The rules may make provision for and in relation to empowering
11
the Regulator to vary the registration of a registered biodiversity
12
project in respect of any of the following:
13
(a) the project area or areas;
14
(b) the protocol determination that covers the project;
15
(c) the project's activity period;
16
(d) the project's permanence period.
17
Note 1:
See also section 23 (procedures for voluntary variation of registration
18
of biodiversity project).
19
Note 2:
For review of decisions, see Part 19.
20
(2) The protocol determination that is to cover a registered biodiversity
21
project as a result of a variation under rules made for the purposes
22
of paragraph (1)(b) of this section:
23
(a) must be in force at the time the variation of the project's
24
registration takes effect; and
25
(b) applies to the project subject to any variations under section
26
48 that take effect before the variation of the project's
27
registration takes effect.
28
This subsection has effect despite subsections 49(2) (when
29
variation of a protocol determination takes effect) and 52(2)
30
(protocol determination continues to have effect despite cessation).
31
(3) Rules made for the purposes of subsection (1) must not empower
32
the Regulator to vary a registration unless:
33
Registered biodiversity projects
Part 2
Variation of registration
Division 3
Section 22
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
27
(a) the project proponent for the project applies to the Regulator
1
for the variation; and
2
(b) if a biodiversity certificate is in effect for the project, and the
3
project proponent is not the holder of the certificate--either:
4
(i) the holder of the certificate has consented, in writing, to
5
the variation; or
6
(ii) the variation would not result in a material change to the
7
certificate.
8
22 Voluntary variation of conditional registration of biodiversity
9
project--condition of registration has been met
10
(1) The rules may make provision for and in relation to empowering
11
the Regulator to vary the registration of a registered biodiversity
12
project to remove any of the following conditions to which the
13
registration is subject:
14
(a) a condition mentioned in subsection 18(2) (conditions about
15
obtaining regulatory approvals);
16
(b) a condition mentioned in subsection 19(2) (conditions about
17
obtaining consents from eligible interest holders).
18
Note 1:
See also section 23 (procedures for voluntary variation of registration
19
of biodiversity project).
20
Note 2:
For review of decisions, see Part 19.
21
(2) Rules made for the purposes of subsection (1) must not empower
22
the Regulator to vary a registration unless:
23
(a) the project proponent for the project applies to the Regulator
24
for the variation; and
25
(b) the Regulator is satisfied that the condition has been met.
26
23 Procedures for voluntary variation of registration of biodiversity
27
project
28
(1) Rules made for the purposes of subsection 20(1), 21(1) or 22(1)
29
may make provision for or in relation to any or all of the following
30
matters:
31
(a) applications for variations under those rules;
32
Part 2
Registered biodiversity projects
Division 3
Variation of registration
Section 23
28
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
(b) the approval by the Regulator of a form for such an
1
application;
2
(c) information that must accompany such an application;
3
(d) documents that must accompany such an application;
4
(e) verification by statutory declaration of statements in such an
5
application;
6
(f) consents that must be obtained for the making of such an
7
application;
8
(g) authorising a person to issue a certificate to certify a matter in
9
relation to such an application;
10
(h) the fee (if any) that must accompany such an application;
11
(i) the withdrawal of such an application;
12
(j) empowering the Regulator:
13
(i) to require an applicant to give the Regulator further
14
information in connection with such an application; and
15
(ii) if the applicant breaches the requirement--to refuse to
16
consider the application, or to refuse to take any action,
17
or any further action, in relation to the application;
18
(k) varying a biodiversity certificate issued in respect of a
19
registered biodiversity project (including such a certificate
20
that is held by a person other than the project proponent for
21
the project).
22
(2) Subsection (1) does not limit subsection 20(1), 21(1) or 22(1).
23
(3) A fee mentioned in paragraph (1)(h) must not be such as to amount
24
to taxation.
25
(4) Rules made for the purposes of subsection 20(1), 21(1) or 22(1)
26
must provide that, if the registration of a registered biodiversity
27
project is varied in accordance with those rules, the Regulator must
28
give a copy of the variation to:
29
(a) the applicant for the variation; and
30
(b) the relevant land registration official.
31
(5) Rules made for the purposes of subsection 20(1), 21(1) or 22(1)
32
must provide that, if the Regulator decides to refuse to vary the
33
registration of a registered biodiversity project in accordance with
34
Registered biodiversity projects
Part 2
Variation of registration
Division 3
Section 23
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
29
an application for variation under those rules, the Regulator must
1
give written notice of the decision to the applicant for the variation.
2
Part 2
Registered biodiversity projects
Division 4
Cancellation of registration of biodiversity project
Section 24
30
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Division 4--Cancellation of registration of biodiversity
1
project
2
Subdivision A--Voluntary cancellation of registration of
3
biodiversity project
4
24 Voluntary cancellation of registration of biodiversity project--
5
certificate in effect
6
(1) The rules may make provision for and in relation to empowering
7
the Regulator to cancel the registration of a registered biodiversity
8
project.
9
Note:
For review of decisions, see Part 19.
10
(2) Rules made for the purposes of subsection (1) must not empower
11
the Regulator to cancel a registration unless:
12
(a) a biodiversity certificate (the
original certificate
) has been
13
issued in respect of the registered biodiversity project
14
(whether or not the original certificate remains in effect); and
15
(b) the project proponent for the project applies to the Regulator
16
for the cancellation of the registration; and
17
(c) either:
18
(i) the original certificate is relinquished in accordance
19
with section 118 in relation to the project, as mentioned
20
in paragraph 118(2)(c); or
21
(ii) one or more other biodiversity certificates are
22
relinquished in accordance with section 118 in relation
23
to the project, as mentioned in paragraph 118(2)(c), and
24
the relinquished certificate or certificates meet the
25
relinquishment equivalence requirements in relation to
26
the original certificate.
27
Note:
See paragraph 117(1)(b) (compliance with relinquishment requirement
28
by relinquishing equivalent biodiversity certificate or certificates).
29
(3) Rules made for the purposes of subsection (1) may make provision
30
for or in relation to any of the following matters:
31
(a) applications for cancellation under those rules;
32
Registered biodiversity projects
Part 2
Cancellation of registration of biodiversity project
Division 4
Section 25
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
31
(b) the approval by the Regulator of a form for such an
1
application;
2
(c) other conditions that must be satisfied for the Regulator to
3
cancel the registration in accordance with those rules.
4
(4) Subsection (3) does not limit subsection (1).
5
25 Voluntary cancellation of registration of biodiversity project--no
6
certificate in effect
7
(1) The rules may make provision for and in relation to empowering
8
the Regulator to cancel the registration of a registered biodiversity
9
project.
10
Note:
For review of decisions, see Part 19.
11
(2) Rules made for the purposes of subsection (1) must not empower
12
the Regulator to cancel a registration unless:
13
(a) no biodiversity certificate has been issued in relation to the
14
registered biodiversity project; and
15
(b) the project proponent for the project applies to the Regulator
16
for the cancellation of the registration.
17
(3) Rules made for the purposes of subsection (1) may make provision
18
for or in relation to either or both of the following matters:
19
(a) applications for cancellation under those rules;
20
(b) the approval by the Regulator of a form for such an
21
application.
22
(4) Subsection (3) does not limit subsection (1).
23
26 Procedures for voluntary cancellation of registration of
24
biodiversity project
25
(1) Rules made for the purposes of subsection 24(1) or 25(1) may
26
make provision for or in relation to any or all of the following
27
matters:
28
(a) applications for cancellation under those rules;
29
(b) the approval by the Regulator of a form for such an
30
application;
31
Part 2
Registered biodiversity projects
Division 4
Cancellation of registration of biodiversity project
Section 26
32
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
(c) information that must accompany such an application;
1
(d) documents that must accompany such an application;
2
(e) verification by statutory declaration of statements in such an
3
application;
4
(f) consents that must be obtained for the making of such an
5
application;
6
(g) authorising a person to issue a certificate to certify a matter in
7
relation to such an application;
8
(h) the fee (if any) that must accompany such an application;
9
(i) the withdrawal of such an application;
10
(j) empowering the Regulator:
11
(i) to require an applicant to give the Regulator further
12
information in connection with such an application; and
13
(ii) if the applicant breaches the requirement--to refuse to
14
consider the application, or to refuse to take any action,
15
or any further action, in relation to the application;
16
(k) varying a biodiversity certificate issued in respect of a
17
registered biodiversity project (including such a certificate
18
that is held by a person other than the project proponent for
19
the project).
20
(2) Subsection (1) does not limit subsection 24(1) or 25(1).
21
(3) A fee mentioned in paragraph (1)(h) must not be such as to amount
22
to taxation.
23
(4) Rules made for the purposes of subsection 24(1) or 25(1):
24
(a) must provide that, if the registration of a registered
25
biodiversity project is cancelled in accordance with those
26
rules, the Regulator must give notice of the cancellation to:
27
(i) the applicant for the cancellation; and
28
(ii) the relevant land registration official; and
29
(iii) in a case where the registration was cancelled under
30
rules made for the purposes of subsection 24(1), and the
31
biodiversity certificate mentioned in paragraph 24(2)(a)
32
is held by a person other than the applicant--the holder
33
of the certificate; and
34
Registered biodiversity projects
Part 2
Cancellation of registration of biodiversity project
Division 4
Section 27
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
33
(b) may require the Regulator to give notice of the cancellation
1
to other people.
2
(5) Rules made for the purposes of subsection 24(1) or 25(1) must
3
provide that, if the Regulator decides to refuse to cancel the
4
registration of a registered biodiversity project in accordance with
5
an application for cancellation under those rules, the Regulator
6
must give written notice of the decision to the applicant for the
7
cancellation.
8
Subdivision B--Unilateral cancellation of registration of
9
biodiversity project
10
27 Unilateral cancellation of registration of biodiversity project--
11
condition of registration has not been met
12
(1) The rules may make provision for and in relation to empowering
13
the Regulator to cancel the registration of a registered biodiversity
14
project.
15
Note:
For review of decisions, see Part 19.
16
(2) Rules made for the purposes of subsection (1) must not empower
17
the Regulator to cancel a registration unless:
18
(a) the registration is subject to a condition mentioned in
19
subsection 18(2) or 19(2); and
20
(b) the Regulator is satisfied that the condition has not been met;
21
and
22
(c) at least 5 years have passed since the project was first
23
registered.
24
(3) Rules made for the purposes of subsection (1) must require the
25
Regulator to consult the project proponent for the project before
26
deciding to cancel the registration.
27
Part 2
Registered biodiversity projects
Division 4
Cancellation of registration of biodiversity project
Section 28
34
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
28 Unilateral cancellation of registration of biodiversity project--
1
project not commenced, or unlikely to result in issuing of
2
biodiversity certificate
3
(1) The rules may make provision for and in relation to empowering
4
the Regulator to cancel the registration of a registered biodiversity
5
project.
6
Note:
For review of decisions, see Part 19.
7
(2) Rules made for the purposes of subsection (1) must not empower
8
the Regulator to cancel a registration unless:
9
(a) a certificate has not yet been issued in respect of the
10
registered biodiversity project; and
11
(b) either:
12
(i) 5 years have passed since the project was first
13
registered, and the Regulator is not satisfied that the
14
project has begun to be carried out; or
15
(ii) the Regulator is satisfied that the project is not being
16
carried out, and is unlikely to be carried out in a way
17
that would result in a biodiversity certificate being
18
issued in respect of the project.
19
(3) Rules made for the purposes of subsection (1) must require the
20
Regulator to consult the project proponent for the project before
21
deciding to cancel the registration.
22
29 Unilateral cancellation of registration of biodiversity project--
23
eligibility requirements not met etc.
24
(1) The rules may make provision for and in relation to empowering
25
the Regulator to cancel the registration of a registered biodiversity
26
project.
27
Note:
For review of decisions, see Part 19.
28
(2) Rules made for the purposes of subsection (1) must not empower
29
the Regulator to cancel a registration unless the Regulator is
30
satisfied that the project does not meet a requirement that is:
31
(a) set out in subsection 16(4); and
32
(b) specified in rules made for the purposes of this paragraph.
33
Registered biodiversity projects
Part 2
Cancellation of registration of biodiversity project
Division 4
Section 30
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
35
(3) Rules made for the purposes of subsection (1) must require the
1
Regulator to consult the project proponent for the project before
2
deciding to cancel the registration.
3
30 Unilateral cancellation of registration of biodiversity project--
4
project proponent ceases to pass the fit and proper person
5
test
6
(1) The rules may make provision for and in relation to empowering
7
the Regulator to cancel the registration of a registered biodiversity
8
project.
9
Note:
For review of decisions, see Part 19.
10
(2) Rules made for the purposes of subsection (1) must not empower
11
the Regulator to cancel a registration unless:
12
(a) the Regulator is satisfied that either:
13
(i) if there is one project proponent for the project--the
14
project proponent for the project does not pass the fit
15
and proper person test; or
16
(ii) if there are multiple project proponents for the project--
17
any of those project proponents do not pass the fit and
18
proper person test; and
19
(b) 90 days pass after the Regulator becomes so satisfied, and, at
20
the end of that 90-day period, the Regulator is not satisfied
21
that each project proponent for the project passes the fit and
22
proper person test.
23
Note:
For the
fit and proper person test
, see section 87.
24
(3) Rules made for the purposes of subsection (1) must require the
25
Regulator to consult the project proponent for the project before
26
deciding to cancel the registration.
27
31 Unilateral cancellation of registration of biodiversity project--
28
project proponent ceases to exist etc.
29
Note:
For review of decisions, see Part 19.
30
Part 2
Registered biodiversity projects
Division 4
Cancellation of registration of biodiversity project
Section 32
36
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
(1) The rules may make provision for and in relation to empowering
1
the Regulator to cancel the registration of a registered biodiversity
2
project.
3
(2) Rules made for the purposes of subsection (1) must not empower
4
the Regulator to cancel a registration unless:
5
(a) the Regulator is satisfied that any of the following
6
circumstances exist:
7
(i) the project proponent has died or ceased to exist, and
8
there are no other project proponents for the project;
9
(ii) the project is not being carried out (except to the extent
10
that this is in accordance with the protocol
11
determination that covers the project); and
12
(b) 90 days pass after the circumstances began to exist, and the
13
Regulator is not satisfied, at the end of that 90-day period,
14
that the circumstances have ceased to exist.
15
(3) Rules made for the purposes of subsection (1) must require the
16
Regulator to make reasonable efforts to consult the project
17
proponent for the project before deciding to cancel the registration.
18
32 Unilateral cancellation of registration of biodiversity project--
19
false or misleading information
20
(1) The rules may make provision for and in relation to empowering
21
the Regulator to cancel the registration of a registered biodiversity
22
project.
23
Note:
For review of decisions, see Part 19.
24
(2) Rules made for the purposes of subsection (1) must not empower
25
the Regulator to cancel a registration unless:
26
(a) information was given by a person to the Regulator in
27
connection with the project; and
28
(b) the information was:
29
(i) contained in an application under this Act or the rules;
30
or
31
(ii) given in connection with an application under this Act
32
or the rules; or
33
(iii) contained in a biodiversity project report; or
34
Registered biodiversity projects
Part 2
Cancellation of registration of biodiversity project
Division 4
Section 33
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
37
(iv) contained in a notification under Division 3 of Part 9;
1
and
2
(c) the information was false or misleading in a material
3
particular.
4
(3) Rules made for the purposes of subsection (1) must require the
5
Regulator to consult the project proponent for the project before
6
deciding to cancel the registration.
7
33 Notice of unilateral cancellation of registration of biodiversity
8
project
9
Rules made for the purposes of subsection 27(1), 28(1), 29(1),
10
30(1), 31(1) or 32(1):
11
(a) must provide that, if the registration of a registered
12
biodiversity project is cancelled in accordance with those
13
rules, the Regulator must give notice of the cancellation to:
14
(i) the relevant land registration official; and
15
(ii) if a biodiversity certificate is in effect in relation to the
16
project, and is held by a person other than the project
17
proponent--the holder of the certificate; and
18
(b) may require the Regulator to give notice of the cancellation
19
to other people.
20
Part 2
Registered biodiversity projects
Division 5
Excluded biodiversity projects
Section 34
38
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Division 5--Excluded biodiversity projects
1
34 Excluded biodiversity projects
2
(1) For the purposes of this Act, a biodiversity project is an
excluded
3
biodiversity project
if it is a project of a kind specified in the rules.
4
(2) In deciding whether to make rules for the purposes of
5
subsection (1) specifying a particular kind of project, the
6
Agriculture Minister must have regard to whether there is a
7
material risk that that kind of project will have a material adverse
8
impact on one or more of the following:
9
(a) the availability of water;
10
(b) biodiversity (other than the kinds of biodiversity to be
11
addressed by the project);
12
(c) employment;
13
(d) the local community;
14
(e) land access for agricultural production.
15
Multiple project proponents
Part 3
Introduction
Division 1
Section 35
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
39
Part 3--Multiple project proponents
1
Division 1--Introduction
2
35 Simplified outline of this Part
3
If there are multiple project proponents for a registered biodiversity
4
project, a reference in this Act to the project proponent is to be read
5
as a reference to each of the project proponents.
6
Multiple project proponents for a registered biodiversity project
7
may nominate a nominee for the purposes of:
8
(a)
the service of documents; and
9
(b)
the taking of eligible voluntary actions (for example, the
10
making of an application).
11
If they do not do so, the Regulator may cancel the project's
12
registration.
13
If there are multiple project proponents for a registered biodiversity
14
project, obligations are imposed on each of the proponents, but
15
may be discharged by any of the proponents.
16
Part 3
Multiple project proponents
Division 2
References to project proponents
Section 36
40
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Division 2--References to project proponents
1
36 References to project proponents
2
If there are 2 or more eligible persons (the
multiple project
3
proponents
) who are registered as the project proponents for a
4
registered biodiversity project, then:
5
(a) for the purposes of this Act, each of the multiple project
6
proponents is a project proponent for the registered
7
biodiversity project; and
8
(b) a reference in:
9
(i) this Act; or
10
(ii) the rules; or
11
(iii) any other instrument under this Act;
12
to the project proponent for the registered biodiversity project
13
is to be read as a reference to each of the multiple project
14
proponents.
15
Multiple project proponents
Part 3
Nominee of multiple project proponents
Division 3
Section 37
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
41
Division 3--Nominee of multiple project proponents
1
37 Nomination of nominee by multiple project proponents--
2
nomination accompanying application
3
Scope
4
(1) This section applies to:
5
(a) an application under section 12 for the Regulator to approve
6
the registration of a biodiversity project if the application
7
specifies 2 or more eligible persons who are to be project
8
proponents for the biodiversity project; or
9
(b) an application under rules made for the purposes of section
10
20 (change in identity of project proponent) that would, if
11
granted, result in there being multiple project proponents for
12
a registered biodiversity project (whether or not there would
13
otherwise be multiple project proponents).
14
Nomination
15
(2) The application must be accompanied by a notice, made jointly in
16
writing by all of the eligible persons who would, if the application
17
were granted, be project proponents for the biodiversity project,
18
nominating one of those eligible persons as the
nominee
in relation
19
to the biodiversity project.
20
(3) The joint written notice must be in a form approved, in writing, by
21
the Regulator.
22
(4) If the Regulator grants the application, the nomination takes effect:
23
(a) if paragraph (1)(a) applies--at the time the biodiversity
24
project is registered as a registered biodiversity project; or
25
(b) if paragraph (1)(b) applies--at the time the variation under
26
rules made for the purposes of section 20 takes effect.
27
(5) If the application is not granted, the nomination does not take
28
effect.
29
Part 3
Multiple project proponents
Division 3
Nominee of multiple project proponents
Section 38
42
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
38 Nomination of nominee by multiple project proponents--other
1
nominations
2
Scope
3
(1) This section applies to a registered biodiversity project that has
4
multiple project proponents.
5
Nomination
6
(2) The project proponents may give the Regulator a notice, made
7
jointly in writing by all of the project proponents, nominating one
8
of the project proponents as the
nominee
in relation to the
9
registered biodiversity project.
10
Note:
If a registered biodiversity project that has multiple project proponents
11
ceases to have a nominee, and no new nominee is nominated, the
12
Regulator may cancel the project's registration from 90 days after the
13
cessation (see section 42).
14
(3) The joint written notice must be in a form approved, in writing, by
15
the Regulator.
16
(4) The nomination takes effect at the time it is given to the Regulator.
17
(5) If a nomination under subsection (2) takes effect in relation to a
18
particular registered biodiversity project, any other nomination
19
under this Part that was in force in relation to that registered
20
biodiversity project ceases to be in force.
21
39 Revocation and cessation of nomination
22
(1) If:
23
(a) a nomination under subsection 37(2) or 38(2) is in force in
24
relation to a registered biodiversity project; and
25
(b) one of the project proponents for the registered biodiversity
26
project, by written notice given to the Regulator, revokes the
27
nomination;
28
the nomination ceases to be in force.
29
(2) If:
30
Multiple project proponents
Part 3
Nominee of multiple project proponents
Division 3
Section 40
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
43
(a) a nomination under subsection 37(2) or 38(2) is in force in
1
relation to a registered biodiversity project; and
2
(b) the nominee ceases to be one of the project proponents for
3
the registered biodiversity project;
4
the nomination ceases to be in force.
5
Note:
If a registered biodiversity project that has multiple project proponents
6
ceases to have a nominee, and no new nominee is nominated, the
7
Regulator may cancel the project's registration from 90 days after the
8
cessation (see section 42).
9
40 Service of documents on nominee
10
Scope
11
(1) This section applies if there are 2 or more project proponents (the
12
multiple project proponents
) for a registered biodiversity project.
13
Service of documents
14
(2) For the purposes of this Act, if:
15
(a) the multiple project proponents have nominated a nominee
16
under subsection 37(2) or 38(2) in relation to the project; and
17
(b) the nomination is in force; and
18
(c) a document relating to the registered biodiversity project is
19
required or permitted by this Act to be given to the project
20
proponent; and
21
(d) the document is given to the nominee;
22
the document is taken to have been given to each of the multiple
23
project proponents.
24
41 Eligible voluntary action taken by nominee
25
Scope
26
(1) This section applies if there are 2 or more project proponents (the
27
multiple project proponents
) for a registered biodiversity project.
28
Eligible voluntary action to be taken by nominee
29
(2) If:
30
Part 3
Multiple project proponents
Division 3
Nominee of multiple project proponents
Section 42
44
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
(a) the multiple project proponents have nominated a nominee
1
under subsection 37(2) or 38(2) in relation to the project; and
2
(b) the nomination is in force; and
3
(c) the nominee takes an eligible voluntary action; and
4
(d) the application, nomination, request or notice to which the
5
eligible voluntary action relates is expressed to be made,
6
withdrawn or given, as the case may be, on behalf of the
7
multiple project proponents;
8
this Act and any instrument made under this Act have effect as if:
9
(e) the application, nomination, request or notice to which the
10
eligible voluntary action relates were made, withdrawn or
11
given, as the case may be, by the multiple project proponents
12
jointly; and
13
(f) if the eligible voluntary action is the making of an
14
application--a reference in this Act or the instrument to the
15
applicant were a reference to each of the multiple project
16
proponents.
17
(3) The multiple project proponents are not entitled to take an eligible
18
voluntary action except in accordance with subsection (2).
19
42 Unilateral cancellation of registration of biodiversity project--
20
failure of multiple project proponents to nominate a
21
nominee
22
(1) The rules may make provision for and in relation to empowering
23
the Regulator to cancel the registration of a registered biodiversity
24
project.
25
Note:
For review of decisions, see Part 19.
26
(2) Rules made for the purposes of subsection (1) must not empower
27
the Regulator to cancel a registration unless:
28
(a) there are 2 or more project proponents (the
multiple project
29
proponents
) for the registered biodiversity project; and
30
(b) the multiple project proponents have nominated an eligible
31
person under subsection 37(2) or 38(2); and
32
(c) the nomination ceases to be in force; and
33
Multiple project proponents
Part 3
Nominee of multiple project proponents
Division 3
Section 42
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
45
(d) 90 days pass, and no new nomination under subsection 37(2)
1
or 38(2) is made by the multiple project proponents.
2
(3) Rules made for the purposes of subsection (1) must require the
3
Regulator to consult the multiple project proponents before
4
deciding to cancel the registration.
5
(4) Rules made for the purposes of subsection (1):
6
(a) must provide that, if the registration of a registered
7
biodiversity project is cancelled in accordance with those
8
rules, the Regulator must give notice of the cancellation to:
9
(i) the relevant land registration official; and
10
(ii) if a biodiversity certificate is in effect in relation to the
11
project, and is held by a person other than the project
12
proponent--the holder of the certificate; and
13
(b) may require the Regulator to give notice of the cancellation
14
to other people.
15
Part 3
Multiple project proponents
Division 4
Obligations of multiple project proponents
Section 43
46
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Division 4--Obligations of multiple project proponents
1
43 Obligations of multiple project proponents
2
Scope
3
(1) This section applies if:
4
(a) there are 2 or more project proponents (the
multiple project
5
proponents
) for a registered biodiversity project; and
6
(b) any of the following:
7
(i) this Act;
8
(ii) the rules;
9
(iii) another instrument made under this Act;
10
imposes an obligation on the project proponent for the
11
project.
12
Obligations of project proponent
13
(2) The obligation is imposed on each of the multiple project
14
proponents, but may be discharged by any of the multiple project
15
proponents.
16
(3) The rules may exempt a specified obligation from the scope of
17
subsection (2).
18
Protocol determinations
Part 4
Introduction
Division 1
Section 44
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
47
Part 4--Protocol determinations
1
Division 1--Introduction
2
44 Simplified outline of this Part
3
Protocol determinations are legislative instruments, made by the
4
Agriculture Minister, that set out how a registered biodiversity
5
project is to be carried out, and other matters. Each registered
6
biodiversity project must be covered by a protocol determination.
7
Protocol determinations may include requirements that a project
8
proponent must comply with. If a biodiversity certificate has been
9
issued in respect of a project, there is a civil penalty for failing to
10
comply with a requirement in the protocol determination that
11
covers the project.
12
In making or varying a protocol determination, the Agriculture
13
Minister must have regard to:
14
(a)
the biodiversity integrity standards; and
15
(b)
advice given by the Agriculture Biodiversity
16
Stewardship Market Advisory Committee.
17
The Agriculture Minister may also have regard to adverse
18
environmental and other impacts, and any other matters the
19
Agriculture Minister considers relevant.
20
If a protocol determination is varied, the variation does not affect
21
existing registered biodiversity projects covered by that protocol
22
determination (unless the project proponent applies to vary the
23
project's registration under Part 2).
24
Part 4
Protocol determinations
Division 2
Protocol determinations
Section 45
48
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Division 2--Protocol determinations
1
Subdivision A--Making of protocol determinations
2
45 Protocol determinations
3
(1) The Agriculture Minister may, by legislative instrument, make a
4
determination that:
5
(a) is expressed to cover a specified kind of biodiversity project;
6
and
7
(b) sets out conditions that must be met for such a project to be
8
registered as a registered biodiversity project; and
9
(c) provides, for the purposes of paragraph 128(1)(h), for
10
information that is to be included in the entry in the Register
11
for such a project; and
12
(d) sets out:
13
(i) for the purposes of paragraph 59(2)(b), conditions that
14
must be met for an application to be made for a
15
biodiversity certificate to be issued in respect of such a
16
project; and
17
(ii) for the purposes of paragraph 59(2)(c), a method of
18
working out the time after which such applications may
19
be made; and
20
(e) sets out, for the purposes of paragraph 62(2)(f), conditions
21
that must be met for a biodiversity certificate to be issued in
22
respect of such a project; and
23
(f) requires, for the purposes of paragraph 95(1)(b), the project
24
proponent for such a project to notify the Regulator of
25
specified matters relating to the project; and
26
(g) provides, for the purposes of paragraphs 130(1)(d) and (2)(c),
27
for information that is to be included in the entry in the
28
Register for a biodiversity certificate issued in relation to
29
such a project; and
30
(h) sets out the activities that are to be carried out for the
31
purposes of such a project; and
32
(i) provides for the activity period and permanence period of
33
such a project to be worked out.
34
Protocol determinations
Part 4
Protocol determinations
Division 2
Section 45
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
49
(2) A determination made under subsection (1) is a
protocol
1
determination
.
2
(3) A protocol determination may impose any of the following on the
3
project proponent of a registered biodiversity project that is
4
covered by the protocol determination:
5
(a) specified requirements to carry out activities in the project
6
area for the purposes of the project;
7
(b) specified requirements to ensure that specified activities are
8
not carried out, by the project proponent or any other person,
9
in the project area;
10
(c) specified requirements to include information relating to the
11
project in each biodiversity project report about the project;
12
(d) specified requirements to notify one or more matters relating
13
to the project to the Regulator;
14
(e) specified record-keeping requirements relating to the project;
15
(f) specified requirements to monitor the project.
16
Note:
See section 46 (civil penalties--requirements in protocol
17
determination).
18
(4) Without limiting subsection 33(3A) of the
Acts Interpretation Act
19
1901
, a protocol determination may make different provision in
20
relation to different kinds of biodiversity projects covered by the
21
determination.
22
Note:
For example, a protocol determination may set out requirements under
23
paragraph (1)(b) that differ depending on which region the project
24
area of a biodiversity project is in.
25
(5) Despite subsection 14(2) of the
Legislation Act 2003
, a protocol
26
determination may make provision in relation to a matter by
27
applying, adopting or incorporating, with or without modification,
28
any matter contained in an instrument or other writing as in force
29
or existing from time to time.
30
(6) A protocol determination may make provision in relation to a
31
matter by conferring a power to make a decision of an
32
administrative character on the Regulator.
33
Part 4
Protocol determinations
Division 2
Protocol determinations
Section 46
50
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
46 Civil penalties--requirements in protocol determination
1
(1) An eligible person is liable to a civil penalty if:
2
(a) the eligible person is a project proponent of a registered
3
biodiversity project; and
4
(b) a biodiversity certificate has been issued in respect of the
5
project (whether or not the certificate remains in force); and
6
(c) the protocol determination that covers the project imposes a
7
requirement on the project proponent of the project for the
8
purposes of subsection 45(3); and
9
(d) the eligible person, or any other project proponent for the
10
project, fails to comply with the requirement.
11
Civil penalty:
2,000 penalty units.
12
(2) An eligible person is liable to a civil penalty if:
13
(a) the eligible person is a project proponent of a registered
14
biodiversity project; and
15
(b) a biodiversity certificate has been issued in respect of the
16
project (whether or not the certificate remains in force); and
17
(c) the protocol determination that covers the project requires,
18
for the purposes of paragraph 45(3)(b), the project proponent
19
for the project to ensure that an activity is not carried out in
20
the project area; and
21
(d) the activity is carried out in the project area (by the project
22
proponent or any other person).
23
Civil penalty:
2,000 penalty units.
24
(3) Subsection (2) does not apply if the eligible person takes all
25
reasonable steps to ensure that the activity is not carried out in the
26
project area.
27
Note:
A person who wishes to rely on subsection (3) in proceedings for a
28
civil penalty order bears an evidential burden in relation to the matter
29
in that subsection: see section 96 of the Regulatory Powers Act.
30
47 Procedure for making a protocol determination
31
(1) In deciding whether to make a protocol determination, the
32
Agriculture Minister:
33
Protocol determinations
Part 4
Protocol determinations
Division 2
Section 47
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
51
(a) must have regard to the following:
1
(i) whether the determination complies with the
2
biodiversity integrity standards;
3
(ii) any advice that the Agriculture Biodiversity
4
Stewardship Market Advisory Committee has given to
5
the Agriculture Minister under subsection 54(2) in
6
relation to the making of the determination; and
7
(b) may have regard to the following:
8
(i) whether significant adverse environmental, agricultural,
9
economic or social impacts are likely to arise from the
10
carrying out of the kind of project that the determination
11
covers;
12
(ii) such other matters (if any) as the Agriculture Minister
13
considers relevant.
14
(2) The Agriculture Minister must not make a protocol determination
15
if the Agriculture Biodiversity Stewardship Market Advisory
16
Committee has advised the Agriculture Minister under
17
subsection 54(2) that the determination does not comply with one
18
or more of the biodiversity integrity standards.
19
Advice given by the Agriculture Biodiversity Stewardship Market
20
Advisory Committee
21
(3) Before making a protocol determination, the Agriculture Minister
22
must request the Agriculture Biodiversity Stewardship Market
23
Advisory Committee to advise the Agriculture Minister about
24
whether the Agriculture Minister should make the determination.
25
Note:
The Agriculture Biodiversity Stewardship Market Advisory
26
Committee must have regard to certain matters in giving advice to the
27
Agriculture Minister (see section 54).
28
(4) If the Agriculture Minister decides:
29
(a) to make a protocol determination; or
30
(b) not to make a protocol determination;
31
the Agriculture Minister must:
32
(c) cause a copy of any advice given by the Agriculture
33
Biodiversity Stewardship Market Advisory Committee under
34
Part 4
Protocol determinations
Division 2
Protocol determinations
Section 48
52
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
subsection 54(2) in relation to the determination to be
1
published on the Agriculture Department's website; and
2
(d) do so as soon as practicable after making the decision.
3
Variation and amendment etc. of protocol determination
4
(5) Subsection 33(3) of the
Acts Interpretation Act 1901
does not
5
apply to a protocol determination.
6
Note:
For variation and revocation of a protocol determination, see
7
Subdivisions B and C of this Division.
8
Subdivision B--Variation of protocol determinations
9
48 Variation of protocol determinations
10
(1) The Agriculture Minister may, by legislative instrument, vary a
11
protocol determination.
12
(2) In deciding whether to vary a protocol determination, the
13
Agriculture Minister:
14
(a) must have regard to the following:
15
(i) whether the varied determination complies with the
16
biodiversity integrity standards;
17
(ii) any advice that the Agriculture Biodiversity
18
Stewardship Market Advisory Committee has given to
19
the Agriculture Minister under subsection 54(2) in
20
relation to the varying of the determination; and
21
(b) may have regard to the following:
22
(i) whether significant adverse environmental, agricultural,
23
economic or social impacts are likely to arise from the
24
carrying out of the kind of project that the varied
25
determination covers;
26
(ii) such other matters (if any) as the Agriculture Minister
27
considers relevant.
28
Protocol determinations
Part 4
Protocol determinations
Division 2
Section 49
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
53
Advice given by the Agriculture Biodiversity Stewardship Market
1
Advisory Committee
2
(3) Before varying a protocol determination, the Agriculture Minister
3
must request the Agriculture Biodiversity Stewardship Market
4
Advisory Committee to advise the Agriculture Minister about
5
whether the Agriculture Minister should vary the determination.
6
Note 1:
The Agriculture Biodiversity Stewardship Market Advisory
7
Committee must have regard to certain matters in giving advice to the
8
Agriculture Minister (see section 54).
9
Note 2:
For variations of a minor nature, see subsection (6) of this section.
10
(4) The Agriculture Minister must not vary a protocol determination if
11
the Agriculture Biodiversity Stewardship Market Advisory
12
Committee has advised the Agriculture Minister under
13
subsection 54(2) that the varied determination does not comply
14
with one or more of the biodiversity integrity standards.
15
(5) If the Agriculture Minister decides:
16
(a) to vary a protocol determination; or
17
(b) not to vary a protocol determination;
18
the Agriculture Minister must:
19
(c) cause a copy of any advice given by the Agriculture
20
Biodiversity Stewardship Market Advisory Committee under
21
subsection 54(2) in relation to the determination to be
22
published on the Agriculture Department's website; and
23
(d) do so as soon as practicable after making the decision.
24
(6) Subsections (3), (4) and (5) do not apply to a variation if the
25
variation is of a minor nature.
26
49 When variation takes effect
27
(1) A variation of a protocol determination takes effect:
28
(a) on the day after the instrument varying the protocol
29
determination is registered on the Federal Register of
30
Legislation; or
31
(b) if a later day is specified in the instrument--on that later day.
32
Part 4
Protocol determinations
Division 2
Protocol determinations
Section 49
54
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Effect of variation on existing registered biodiversity projects
1
(2) A variation of a protocol determination does not apply to a
2
registered biodiversity project if the project's registration is in
3
effect at the time the variation takes effect.
4
Note:
However, a variation of a protocol determination will apply to an
5
existing registered biodiversity project if the project's registration is
6
varied under rules made for the purposes of section 21 to change the
7
protocol determination that covers the project.
8
Effect of variation on application for approval of registration
9
(3) If:
10
(a) a variation of a protocol determination takes effect; and
11
(b) at the time the variation takes effect, an application under
12
section 12 for the Regulator to approve the registration of a
13
biodiversity project has been made, and the Regulator has not
14
decided to:
15
(i) approve the registration; or
16
(ii) refuse to approve the registration; and
17
(c) the application proposes that the project is to be covered by
18
the protocol determination;
19
then:
20
(d) the protocol determination as varied applies to the
21
application; and
22
(e) if the biodiversity project is registered, the project is covered
23
by the protocol determination as varied.
24
(4) The rules may provide for any of the following:
25
(a) the Regulator to notify an eligible person that an application
26
made by the eligible person, under this Act or an instrument
27
made under this Act, is affected by a variation of a protocol
28
determination, as mentioned in subsection (3);
29
(b) the Regulator to give the eligible person an opportunity to
30
withdraw or vary the application before the Regulator
31
considers the application.
32
(5) If:
33
Protocol determinations
Part 4
Protocol determinations
Division 2
Section 50
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
55
(a) an application is withdrawn under rules made for the
1
purposes of subsection (4); and
2
(b) the applicant has paid a fee in relation to the application;
3
the Regulator must, on behalf of the Commonwealth, refund the
4
application fee.
5
Subdivision C--Duration, expiry and revocation of protocol
6
determinations
7
50 Duration of protocol determinations
8
(1) A protocol determination:
9
(a) comes into force:
10
(i) the day after it is registered on the Federal Register of
11
Legislation; or
12
(ii) if a later time is specified in the determination--at that
13
later time; and
14
(b) unless sooner revoked, remains in force for:
15
(i) the period specified in the determination; or
16
(ii) if a longer period is specified in relation to the
17
determination in a legislative instrument made by the
18
Agriculture Minister--that longer period; and
19
(c) ceases to have effect at the end of the period mentioned in
20
paragraph (1)(b).
21
(2) If a protocol determination expires, this Act does not prevent the
22
Agriculture Minister from making a fresh protocol determination in
23
the same terms as the expired determination.
24
Sunsetting
25
(3) To avoid doubt, nothing in this section affects the operation of
26
Part 4 of Chapter 3 (sunsetting) of the
Legislation Act 2003
.
27
Note:
However, see section 52 (effect of protocol determination ceasing to
28
have effect) of this Act.
29
Part 4
Protocol determinations
Division 2
Protocol determinations
Section 51
56
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
51 Revocation of protocol determinations
1
(1) The Agriculture Minister may, by legislative instrument, revoke a
2
protocol determination.
3
(2) Before revoking a protocol determination, the Agriculture Minister
4
must request the Agriculture Biodiversity Stewardship Market
5
Advisory Committee to advise the Agriculture Minister about
6
whether the Agriculture Minister should revoke the determination.
7
Note:
The Agriculture Biodiversity Stewardship Market Advisory
8
Committee must have regard to certain matters in giving advice to the
9
Agriculture Minister (see section 54).
10
(3) In deciding whether to revoke a protocol determination, the
11
Agriculture Minister must have regard to the following:
12
(a) whether the determination complies with the biodiversity
13
integrity standards;
14
(b) the advice given by the Agriculture Biodiversity Stewardship
15
Market Advisory Committee under subsection 54(2);
16
(c) such other matters (if any) as the Agriculture Minister
17
considers relevant.
18
(4) If the Agriculture Minister decides:
19
(a) to revoke a protocol determination; or
20
(b) not to revoke a protocol determination;
21
the Agriculture Minister must, as soon as practicable after making
22
the decision, cause a copy of the advice given by the Agriculture
23
Biodiversity Stewardship Market Advisory Committee under
24
subsection 54(2) in relation to the determination to be published on
25
the Agriculture Department's website.
26
52 Effect of protocol determination ceasing to have effect--existing
27
registered biodiversity projects
28
(1) This section applies to a registered biodiversity project if the
29
protocol determination that covers the project ceases to have effect
30
(whether under this Subdivision or otherwise).
31
(2) Despite the cessation, the protocol determination continues to
32
cover the registered biodiversity project as if it had not ceased.
33
Protocol determinations
Part 4
Protocol determinations
Division 2
Section 53
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
57
Note 1:
For example, if the protocol determination that covers a registered
1
biodiversity project is repealed by Part 4 (sunsetting) of the
2
Legislation Act 2003
, the determination would continue to cover that
3
project. However, no new biodiversity projects could be registered on
4
the basis of the repealed determination.
5
Note 2:
This section is subject to subsection 21(2) (voluntary variation of
6
registration of biodiversity project--changes in project area or
7
protocol determination).
8
53 Effect of protocol determination ceasing to have effect--
9
applications for registration
10
(1) This section applies to an application under section 12 for the
11
Regulator to approve the registration of a biodiversity project if the
12
protocol determination specified in the application under paragraph
13
13(2)(c) ceases to have effect (whether under this Subdivision or
14
otherwise).
15
(2) The Regulator must refuse the application.
16
(3) The rules may provide for any of the following:
17
(a) the Regulator to notify the applicant that the Regulator
18
proposes to refuse the application under subsection (2);
19
(b) the Regulator to give the applicant an opportunity to
20
withdraw or vary the application before the Regulator refuses
21
the application.
22
(4) If:
23
(a) an application is withdrawn under rules made for the
24
purposes of subsection (3); and
25
(b) the applicant has paid a fee in relation to the application;
26
the Regulator must, on behalf of the Commonwealth, refund the
27
application fee.
28
Part 4
Protocol determinations
Division 2
Protocol determinations
Section 54
58
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Subdivision D--Advice about making, varying or revoking
1
protocol determinations
2
54 Advice by the Agriculture Biodiversity Stewardship Market
3
Advisory Committee
4
Scope
5
(1) This section applies if the Agriculture Minister requests the
6
Agriculture Biodiversity Stewardship Market Advisory
7
Committee:
8
(a) under subsection 47(3), to give advice about whether the
9
Agriculture Minister should make a protocol determination;
10
or
11
(b) under subsection 48(3), to give advice about whether the
12
Agriculture Minister should vary a protocol determination; or
13
(c) under subsection 51(2), to give advice about whether the
14
Agriculture Minister should revoke a protocol determination.
15
Committee to give advice
16
(2) The Agriculture Biodiversity Stewardship Market Advisory
17
Committee must give the requested advice to the Agriculture
18
Minister.
19
Note:
The Committee must undertake public consultation before giving
20
advice about making or varying a protocol determination (see
21
section 56).
22
(3) If the requested advice relates to whether the Agriculture Minister
23
should make a protocol determination, the Agriculture Biodiversity
24
Stewardship Market Advisory Committee must include in the
25
advice the Committee's opinion on whether the proposed
26
determination complies with the biodiversity integrity standards.
27
(4) If the requested advice relates to whether the Agriculture Minister
28
should vary a protocol determination, the Agriculture Biodiversity
29
Stewardship Market Advisory Committee must include in the
30
advice the Committee's opinion on whether the determination as
31
proposed to be varied complies with the biodiversity integrity
32
standards.
33
Protocol determinations
Part 4
Protocol determinations
Division 2
Section 55
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
59
Committee must have regard to certain matters
1
(5) In giving the requested advice to the Agriculture Minister, the
2
Agriculture Biodiversity Stewardship Market Advisory Committee
3
must have regard to the following:
4
(a) the biodiversity integrity standards;
5
(b) any relevant matters specified in a direction in force under
6
section 55;
7
(c) any relevant advice given by the Regulator to the Committee.
8
(6) Subsection (5) does not, by implication, limit the matters to which
9
the Agriculture Biodiversity Stewardship Market Advisory
10
Committee may have regard.
11
55 Additional matters for the Agriculture Biodiversity Stewardship
12
Market Advisory Committee to take into account
13
The Agriculture Minister may, by legislative instrument, direct the
14
Agriculture Biodiversity Stewardship Market Advisory Committee
15
to do any or all of the following:
16
(a) have regard to one or more specified matters in giving advice
17
about the making of a protocol determination;
18
(b) have regard to one or more specified matters in giving advice
19
about the variation of a protocol determination;
20
(c) have regard to one or more specified matters in giving advice
21
about the revocation of a protocol determination.
22
Note:
Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the
23
Legislation Act 2003
do not apply to the direction (see regulations
24
made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that
25
Act).
26
Part 4
Protocol determinations
Division 2
Protocol determinations
Section 56
60
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Subdivision E--Consultation by the Agriculture Biodiversity
1
Stewardship Market Advisory Committee
2
56 Consultation by the Agriculture Biodiversity Stewardship
3
Market Advisory Committee
4
(1) The Agriculture Biodiversity Stewardship Market Advisory
5
Committee must not advise the Agriculture Minister to make or
6
vary a protocol determination unless the Committee has first:
7
(a) published on the Agriculture Department's website:
8
(i) a detailed outline of the proposed determination or
9
variation, as the case may be; and
10
(ii) a notice inviting the public to make a submission to the
11
Committee on the detailed outline by a specified time
12
limit; and
13
(b) considered any submissions that were received within that
14
time limit.
15
(2) The time limit must be 28 days after the notice is published.
16
(3) However, the time limit may be shorter than 28 days after the
17
notice is published, so long as:
18
(a) the Agriculture Biodiversity Stewardship Market Advisory
19
Committee considers that the time limit is appropriate in the
20
circumstances; and
21
(b) the time limit is not shorter than 14 days after the notice is
22
published.
23
Publication of submissions
24
(4) The Agriculture Biodiversity Stewardship Market Advisory
25
Committee must publish on the Agriculture Department's website
26
any submissions under subsection (1) received within the time
27
limit referred to in subparagraph (1)(a)(ii).
28
(5) However, the Agriculture Biodiversity Stewardship Market
29
Advisory Committee must not publish a particular submission
30
made by a person if the person has requested the Committee not to
31
publish the submission on the ground that publication of the
32
Protocol determinations
Part 4
Protocol determinations
Division 2
Section 56
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
61
submission could reasonably be expected to substantially
1
prejudice:
2
(a) the commercial interests of the person or another person; or
3
(b) a biodiversity outcome.
4
(6) A request under subsection (5) must:
5
(a) be in writing; and
6
(b) be in a form approved, in writing, by the Committee.
7
Part 4
Protocol determinations
Division 3
Biodiversity integrity standards
Section 57
62
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Division 3--Biodiversity integrity standards
1
57 Biodiversity integrity standards
2
(1) For the purposes of this Act, a protocol determination complies
3
with the
biodiversity integrity standards
if:
4
(a) a biodiversity project carried out in accordance with the
5
protocol determination should result in enhancement or
6
protection of biodiversity that would be unlikely to occur if
7
the project was not carried out; and
8
(b) a biodiversity project carried out in accordance with the
9
protocol determination should be designed to achieve a
10
biodiversity outcome that can be verified; and
11
(c) any statements or information that could be included in:
12
(i) an entry in the Register for a biodiversity project
13
covered by the protocol determination; or
14
(ii) a biodiversity certificate issued in relation to a
15
biodiversity project covered by the protocol
16
determination;
17
would be supported by clear and convincing evidence; and
18
(d) to the extent to which any statements or information referred
19
to in paragraph (c) would involve an estimate, projection or
20
assumption--the estimate, projection or assumption would
21
be reasonably certain; and
22
(e) the protocol determination meets such other standards (if
23
any) as are prescribed by the rules.
24
(2) Paragraph (1)(e) is not limited by the other paragraphs in
25
subsection (1).
26
Biodiversity certificates
Part 5
Introduction
Division 1
Section 58
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
63
Part 5--Biodiversity certificates
1
Division 1--Introduction
2
58 Simplified outline of this Part
3
A biodiversity certificate may be issued for a registered
4
biodiversity project, in accordance with the protocol determination
5
that covers the project. After being issued, a biodiversity certificate
6
is recorded on the Register.
7
A biodiversity certificate is personal property, and may be
8
transferred.
9
Part 5
Biodiversity certificates
Division 2
Issue of biodiversity certificates
Section 59
64
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Division 2--Issue of biodiversity certificates
1
59 Application for biodiversity certificate
2
(1) The project proponent of a registered biodiversity project may
3
apply to the Regulator for the Regulator to issue to the project
4
proponent a biodiversity certificate in respect of the registered
5
biodiversity project.
6
(2) The application may only be made:
7
(a) if a biodiversity certificate has not previously been issued in
8
respect of the registered biodiversity project; and
9
(b) if the conditions (if any) set out under subparagraph
10
45(1)(d)(i) in the protocol determination that covers the
11
registered biodiversity project are met; and
12
(c) after the time worked out in accordance with provisions of
13
that protocol determination made for the purposes of
14
subparagraph 45(1)(d)(ii); and
15
(d) if the conditions (if any) set out in the rules for the purposes
16
of this paragraph are met.
17
60 Form of application
18
(1) An application under section 59 in relation to a registered
19
biodiversity project must:
20
(a) be in writing; and
21
(b) be in a form approved, in writing, by the Regulator; and
22
(c) set out the account number of an account in the Register of
23
the applicant that should be specified in the certificate; and
24
(d) be accompanied by such information as is specified in the
25
rules; and
26
(e) be accompanied by such information as is specified in the
27
protocol determination that covers the biodiversity project;
28
and
29
(f) if, under the rules, the application is subject to audit under
30
this Act--be accompanied by an audit report that is:
31
(i) prescribed by the rules; and
32
Biodiversity certificates
Part 5
Issue of biodiversity certificates
Division 2
Section 61
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
65
(ii) prepared by a registered greenhouse and energy auditor
1
who has been appointed as an audit team leader for the
2
purpose; and
3
(g) be accompanied by the biodiversity project report mentioned
4
in section 89; and
5
(h) be accompanied by such other documents (if any) as are
6
specified in the rules; and
7
(i) be accompanied by such other documents (if any) as are
8
specified in the protocol determination that covers the
9
biodiversity project; and
10
(j) be accompanied by the fee (if any) specified in the rules.
11
(2) The approved form of application may provide for verification by
12
statutory declaration of statements in applications.
13
(3) A fee specified under paragraph (1)(j) must not be such as to
14
amount to taxation.
15
61 Further information
16
(1) The Regulator may, by written notice given to an applicant, require
17
the applicant to give the Regulator, within the period specified in
18
the notice, further information in connection with the application.
19
(2) If the applicant breaches the requirement, the Regulator may, by
20
written notice given to the applicant:
21
(a) refuse to consider the application; or
22
(b) refuse to take any action, or any further action, in relation to
23
the application.
24
62 Issue of biodiversity certificate
25
Scope
26
(1) This section applies if an application under section 59 has been
27
made for the issue of a biodiversity certificate in respect of a
28
registered biodiversity project.
29
Part 5
Biodiversity certificates
Division 2
Issue of biodiversity certificates
Section 62
66
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Issue of certificate
1
(2) If the Regulator is satisfied that:
2
(a) the applicant passes the fit and proper person test; and
3
(b) the applicant is the project proponent for the project; and
4
(c) if the registration of the registered biodiversity project is
5
subject to a condition under section 18 (obtaining regulatory
6
approvals)--that condition has been met; and
7
(d) if the registration of the registered biodiversity project is
8
subject to a condition under section 19 (obtaining consents
9
from eligible interest holders)--that condition has been met;
10
and
11
(e) if the rules specify one or more other eligibility requirements
12
for the purposes of this paragraph--those requirements are
13
met; and
14
(f) if the protocol determination that covers the project specifies
15
one or more other eligibility requirements for the purposes of
16
paragraph 45(1)(e)--those requirements are met;
17
the Regulator must issue a biodiversity certificate to the applicant
18
in respect of the project by making an entry in the account in the
19
Register identified in the application under paragraph 60(1)(c).
20
Note 1:
For the
fit and proper person test
, see section 87.
21
Note 2:
For review of decisions, see Part 19.
22
(3) A biodiversity certificate must set out the matters specified in the
23
rules.
24
Timing
25
(4) The Regulator must take all reasonable steps to ensure that a
26
decision is made on the application:
27
(a) if the Regulator requires the applicant to give further
28
information under subsection 61(1) in relation to the
29
application--within 90 days after the applicant gave the
30
Regulator the information; or
31
(b) otherwise--within 90 days after the application was made.
32
Biodiversity certificates
Part 5
Issue of biodiversity certificates
Division 2
Section 63
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
67
Notice
1
(5) The Regulator must give the applicant notice in writing if the
2
Regulator:
3
(a) decides to issue a biodiversity certificate to the applicant; or
4
(b) decides not to issue a biodiversity certificate to the applicant.
5
63 Basis on which biodiversity certificates are issued
6
A biodiversity certificate is issued on the basis that:
7
(a) the certificate may be varied in accordance with rules made
8
for the purposes of paragraph 23(1)(k) or 26(1)(k); and
9
(b) the certificate may be required to be relinquished under
10
Part 12; and
11
(c) the certificate may be cancelled, revoked, terminated or
12
varied, or required to be relinquished, by or under later
13
legislation; and
14
(d) no compensation is payable if the certificate is so cancelled,
15
revoked, terminated or varied, or required to be relinquished.
16
Part 5
Biodiversity certificates
Division 3
Property in biodiversity certificates
Section 64
68
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Division 3--Property in biodiversity certificates
1
64 A biodiversity certificate is personal property
2
A biodiversity certificate is personal property and, subject to
3
section 66, is transmissible by assignment, by will and by
4
devolution by operation of law.
5
65 Ownership of biodiversity certificate
6
(1) The holder of a biodiversity certificate:
7
(a) is the legal owner of the certificate; and
8
(b) may, subject to this Act, deal with the certificate as its legal
9
owner and give good discharges for any consideration for
10
any such dealing.
11
Note:
The holder of a biodiversity certificate is the person recorded in the
12
Register as the holder of the certificate (see the definition of
holder
in
13
section 7).
14
(2) Subsection (1) only protects a person who deals with the holder of
15
the certificate as a purchaser:
16
(a) in good faith for value; and
17
(b) without notice of any defect in the title of the holder.
18
66 Transmission of biodiversity certificates
19
A transmission of a biodiversity certificate, whether by assignment
20
or by any other lawful means, is of no force until the biodiversity
21
certificate has been transferred, in accordance with rules made for
22
the purposes of section 132:
23
(a) from an account in the Register held by the transferor; and
24
(b) into an account in the Register held by the transferee.
25
Biodiversity certificates
Part 5
Property in biodiversity certificates
Division 3
Section 67
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
69
67 Registration of equitable interests in relation to biodiversity
1
certificates
2
(1) The rules may make provision for or in relation to the registration
3
in the Register of equitable interests in relation to biodiversity
4
certificates.
5
(2) Subsection (1) does not apply to an equitable interest that is a
6
security interest within the meaning of the
Personal Property
7
Securities Act 2009
, and to which that Act applies.
8
68 Equitable interests in relation to biodiversity certificates
9
(1) This Act does not affect:
10
(a) the creation of; or
11
(b) any dealings with; or
12
(c) the enforcement of;
13
equitable interests in relation to a biodiversity certificate.
14
(2) This section is enacted for the avoidance of doubt.
15
Part 6
Purchase of biodiversity certificates by the Commonwealth
Division 1
Introduction
Section 69
70
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Part 6--Purchase of biodiversity certificates by the
1
Commonwealth
2
Division 1--Introduction
3
69 Simplified outline of this Part
4
The Secretary may, on behalf of the Commonwealth, enter into
5
contracts for the purchase by the Commonwealth of biodiversity
6
certificates.
7
Such a contract is to be known as a biodiversity conservation
8
contract.
9
The Secretary may enter into a biodiversity conservation contract
10
as the result of a biodiversity conservation purchasing process.
11
The Secretary may conduct biodiversity conservation purchasing
12
processes on behalf of the Commonwealth. Such processes may
13
include tender processes.
14
The Secretary must have regard to certain principles and other
15
matters when conducting a biodiversity conservation purchasing
16
process.
17
Purchase of biodiversity certificates by the Commonwealth
Part 6
Biodiversity conservation contracts
Division 2
Section 70
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
71
Division 2--Biodiversity conservation contracts
1
70 Biodiversity conservation contracts
2
(1) The Secretary may enter into contracts, on behalf of the
3
Commonwealth, for the purchase by the Commonwealth of
4
biodiversity certificates.
5
(2) It is immaterial whether the biodiversity certificates are in
6
existence when the contract is entered into.
7
(3) For the purposes of this Act, a contract entered into under
8
subsection (1) is to be known as a
biodiversity conservation
9
contract
.
10
(4) For the purposes of this Act, if the Secretary enters into a
11
biodiversity conservation contract with a person, the person is a
12
biodiversity conservation
contractor
.
13
71 When biodiversity conservation contracts may be entered into
14
(1) The Secretary may enter into a biodiversity conservation contract
15
under section 70 as the result of a biodiversity conservation
16
purchasing process conducted by the Secretary under section 75.
17
(2) The Secretary must not enter into a biodiversity conservation
18
contract under section 70 unless the biodiversity conservation
19
contractor for the contract is a project proponent for a registered
20
biodiversity project (which need not be the project to which a
21
biodiversity certificate to be purchased under the contract relates).
22
(3) The rules may prescribe further circumstances in which the
23
Secretary must not enter into a biodiversity conservation contract
24
under section 70.
25
72 Secretary has powers etc. of the Commonwealth
26
(1) The Secretary, on behalf of the Commonwealth, has all the rights,
27
responsibilities, duties and powers of the Commonwealth in
28
Part 6
Purchase of biodiversity certificates by the Commonwealth
Division 2
Biodiversity conservation contracts
Section 73
72
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
relation to the Commonwealth's capacity as a party to a
1
biodiversity conservation contract.
2
(2) Without limiting subsection (1):
3
(a) an amount payable by the Commonwealth under a
4
biodiversity conservation contract is to be paid by the
5
Secretary on behalf of the Commonwealth; and
6
(b) an amount payable to the Commonwealth under a
7
biodiversity conservation contract is to be paid to the
8
Secretary on behalf of the Commonwealth; and
9
(c) the Secretary may institute an action or proceeding on behalf
10
of the Commonwealth in relation to a matter that concerns a
11
biodiversity conservation contract.
12
73 Conferral of powers on the Secretary
13
The Secretary may exercise a power conferred on the Secretary by
14
a biodiversity conservation contract.
15
Purchase of biodiversity certificates by the Commonwealth
Part 6
Biodiversity conservation purchasing processes
Division 3
Section 74
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
73
Division 3--Biodiversity conservation purchasing
1
processes
2
74 Biodiversity conservation purchasing process
3
For the purposes of this Act, a
biodiversity conservation
4
purchasing process
means:
5
(a) a tender process; or
6
(b) a reverse auction; or
7
(c) any other process;
8
for the purchase by the Commonwealth of biodiversity certificates.
9
(It is immaterial whether the certificates are in existence when the
10
process is conducted.)
11
75 Conduct of biodiversity conservation purchasing processes
12
(1) The Secretary may, on behalf of the Commonwealth, conduct one
13
or more biodiversity conservation purchasing processes.
14
(2) In exercising the power conferred by subsection (1), the Secretary
15
must have regard to:
16
(a) the principles set out in subsection (3); and
17
(b) such other matters (if any) as are specified in the rules.
18
Principles for conduct of biodiversity conservation purchasing
19
processes
20
(3) The principles for conducting a biodiversity conservation
21
purchasing process are that the process should:
22
(a) facilitate the Commonwealth receiving value for money
23
when purchasing biodiversity certificates; and
24
(b) maximise the protection or enhancement of biodiversity that
25
results from the process; and
26
(c) be conducted in a manner that ensures that administrative
27
costs are reasonable; and
28
(d) be conducted in a manner that ensures the integrity of the
29
process; and
30
Part 6
Purchase of biodiversity certificates by the Commonwealth
Division 3
Biodiversity conservation purchasing processes
Section 75
74
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
(e) encourage competition; and
1
(f) provide for fair and ethical treatment of all participants in the
2
process.
3
(4) To avoid doubt, the mere fact that a person is a project proponent
4
for a registered biodiversity project does not automatically entitle
5
the person to participate in a biodiversity conservation purchasing
6
process.
7
Purchase of biodiversity certificates by the Commonwealth
Part 6
Miscellaneous
Division 4
Section 76
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
75
Division 4--Miscellaneous
1
76 Rules may provide for certain matters relating to purchased
2
biodiversity certificates
3
The rules may make provision for and in relation to any or all of
4
the following matters in respect of biodiversity certificates
5
purchased by the Commonwealth under biodiversity conservation
6
contracts:
7
(a) transferring purchased certificates to a specified Register
8
account kept for the Commonwealth;
9
(b) prohibiting or restricting the transfer of biodiversity
10
certificates from such an account;
11
(c) cancelling biodiversity certificates for which there are entries
12
in such an account.
13
77 Certain instruments relating to Commonwealth procurement are
14
not applicable
15
An instrument made under section 105B of the
Public Governance,
16
Performance and Accountability Act 2013
does not apply in
17
relation to the functions and powers of the Secretary under
18
section 70 or 75 of this Act.
19
Note:
Section 105B of the
Public Governance, Performance and
20
Accountability Act 2013
provides for the making of instruments
21
relating to procurement.
22
78 Biodiversity conservation contracts are not instruments made
23
under this Act
24
To avoid doubt, a biodiversity conservation contract is taken not to
25
be an instrument made under this Act.
26
Part 7
Interests in land
Division 1
Introduction
Section 79
76
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Part 7--Interests in land
1
Division 1--Introduction
2
79 Simplified outline of this Part
3
The registration of a biodiversity project may be subject to a
4
condition requiring the project proponent to obtain the consent of
5
the holders of certain interests in land before a biodiversity
6
certificate may be issued (see section 19 and paragraph 62(2)(d)).
7
This Part sets out the kinds of interests (
eligible interests
) that may
8
give rise to such a condition.
9
This Part also requires the Regulator to notify State and Territory
10
Crown lands Ministers of the registration of certain kinds of
11
biodiversity projects, and provides for entries to be recorded in title
12
registers in relation to biodiversity projects.
13
Interests in land
Part 7
Eligible interest in an area of land
Division 2
Section 80
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
77
Division 2--Eligible interest in an area of land
1
80 Eligible interest in an area of land--Torrens system land
2
Scope
3
(1) This section applies to an area of land if the area is Torrens system
4
land.
5
Eligible interest
6
(2) For the purposes of this Act, if:
7
(a) a person holds an estate in fee simple, or any other legal
8
estate or interest, in the whole or a part of the area of land;
9
and
10
(b) the estate or interest is registered under a Torrens system of
11
registration;
12
the estate or interest is an
eligible interest
held by the person in the
13
area of land.
14
(3) For the purposes of this Act, if:
15
(a) under subsection (2), a person holds an eligible interest in the
16
area of land; and
17
(b) another person:
18
(i) is a mortgagee of the eligible interest, where the
19
mortgage is registered under a Torrens system of
20
registration; or
21
(ii) a chargee of the eligible interest, where the charge is
22
registered under a Torrens system of registration;
23
the mortgage or charge is an
eligible interest
held by the other
24
person in the area of land.
25
(4) For the purposes of this Act, if the area of land:
26
(a) is Crown land; and
27
(b) is not exclusive possession native title land; and
28
(c) is not land rights land;
29
Part 7
Interests in land
Division 2
Eligible interest in an area of land
Section 80
78
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
the Crown lands Minister of the State or Territory holds an
eligible
1
interest
in the area of land.
2
(5) The rules may provide that, for the purposes of this Act, a person
3
specified in, or ascertained in accordance with, the rules holds an
4
eligible interest
in the area of land.
5
(6) For the purposes of this Act, if:
6
(a) the area of land is land rights land; and
7
(b) the area of land is not exclusive possession native title land;
8
and
9
(c) any of the following subparagraphs applies to the area of
10
land:
11
(i) a lease is in force over the land, and the grant of the
12
lease took place under a law of the Commonwealth that
13
makes provision for the grant of such things only to, or
14
for the benefit of, Aboriginal persons or Torres Strait
15
Islanders;
16
(ii) subparagraph (i) does not apply, and the land is held by
17
the Commonwealth;
18
(iii) subparagraph (i) does not apply, and the land is held by
19
a statutory authority of the Commonwealth;
20
then:
21
(d) if subparagraph (c)(i) applies--the Minister who administers
22
the law mentioned in that subparagraph holds an
eligible
23
interest
in the area of land; or
24
(e) if subparagraph (c)(ii) applies--the Minister who administers
25
the
Aboriginal Land Rights (Northern Territory) Act 1976
26
holds an
eligible interest
in the area of land; or
27
(f) if subparagraph (c)(iii) applies--the Minister who
28
administers the Act that establishes the statutory authority
29
holds an
eligible interest
in the area of land.
30
(7) For the purposes of this Act, if:
31
(a) the area of land is land rights land in a State or Territory; and
32
(b) the area of land is not exclusive possession native title land;
33
and
34
Interests in land
Part 7
Eligible interest in an area of land
Division 2
Section 81
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
79
(c) none of the subparagraphs of paragraph (6)(c) applies to the
1
area of land; and
2
(d) the area of land is not freehold land rights land;
3
the Crown lands Minister of the State or Territory holds an
eligible
4
interest
in the area of land.
5
81 Eligible interest in an area of land--Crown land that is not
6
Torrens system land
7
Scope
8
(1) This section applies to an area of land in a State or Territory if the
9
area of land:
10
(a) is Crown land; and
11
(b) is not Torrens system land.
12
Eligible interest
13
(2) For the purposes of this Act, if the area of land is neither:
14
(a) exclusive possession native title land; nor
15
(b) land rights land;
16
the Crown lands Minister of the State or Territory holds an
eligible
17
interest
in the area of land.
18
(3) For the purposes of this Act, if:
19
(a) a person (other than the State or Territory) holds a legal
20
estate or interest (the
relevant estate or interest
) in the whole
21
or a part of the area of land; and
22
(b) any of the following conditions are satisfied:
23
(i) the relevant estate or interest came into existence as a
24
result of a grant by the Crown in any capacity;
25
(ii) the relevant estate or interest was derived from an estate
26
or interest that came into existence as a result of a grant
27
by the Crown in any capacity;
28
(iii) the relevant estate or interest was created by or under a
29
law of the Commonwealth, a State or a Territory;
30
Part 7
Interests in land
Division 2
Eligible interest in an area of land
Section 81
80
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
(iv) the relevant estate or interest was derived from an estate
1
or interest that was created by or under a law of the
2
Commonwealth, a State or a Territory;
3
the relevant estate or interest is an
eligible interest
held by the
4
person in the area of land.
5
(4) For the purposes of this Act, if:
6
(a) under subsection (3), a person holds an eligible interest in the
7
area of land; and
8
(b) another person:
9
(i) is a mortgagee of the eligible interest; or
10
(ii) is a chargee of the eligible interest;
11
the mortgage or charge is an
eligible interest
held by the other
12
person in the area of land.
13
(5) The rules may provide that, for the purposes of this Act, a person
14
specified in, or ascertained in accordance with, the rules holds an
15
eligible interest
in the area of land.
16
(6) For the purposes of this Act, if:
17
(a) the area of land is land rights land; and
18
(b) the area of land is not exclusive possession native title land;
19
and
20
(c) any of the following subparagraphs applies to the area of
21
land:
22
(i) a lease is in force over the land, and the grant of the
23
lease took place under a law of the Commonwealth that
24
makes provision for the grant of such things only to, or
25
for the benefit of, Aboriginal persons or Torres Strait
26
Islanders;
27
(ii) subparagraph (i) does not apply, and the land is held by
28
the Commonwealth;
29
(iii) subparagraph (i) does not apply, and the land is held by
30
a statutory authority of the Commonwealth;
31
then:
32
(d) if subparagraph (c)(i) applies--the Minister who administers
33
the law mentioned in that subparagraph holds an
eligible
34
interest
in the area of land; or
35
Interests in land
Part 7
Eligible interest in an area of land
Division 2
Section 82
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
81
(e) if subparagraph (c)(ii) applies--the Minister who administers
1
the
Aboriginal Land Rights (Northern Territory) Act 1976
2
holds an
eligible interest
in the area of land; or
3
(f) if subparagraph (c)(iii) applies--the Minister who
4
administers the Act that establishes the statutory authority
5
holds an
eligible interest
in the area of land.
6
(7) For the purposes of this Act, if:
7
(a) the area of land is land rights land in a State or Territory; and
8
(b) the area of land is not exclusive possession native title land;
9
and
10
(c) none of the subparagraphs of paragraph (6)(c) applies to the
11
area of land; and
12
(d) the area of land is not freehold land rights land;
13
the Crown lands Minister of the State or Territory holds an
eligible
14
interest
in the area of land.
15
82 Eligible interest in an area of land--native title land
16
Scope
17
(1) This section applies to an area of land if:
18
(a) the area of land is native title land; and
19
(b) there is a registered native title body corporate for the area of
20
land.
21
Eligible interest
22
(2) For the purposes of this Act, the registered native title body
23
corporate holds an
eligible interest
in the area of land.
24
Part 7
Interests in land
Division 3
Freehold land rights land
Section 83
82
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Division 3--Freehold land rights land
1
83 Regulator to notify Crown lands Minister of approval of
2
registration of biodiversity project
3
Scope
4
(1) This section applies if:
5
(a) the Regulator approves under section 16 the registration of a
6
biodiversity project; and
7
(b) the project area is, or any of the project areas are, freehold
8
land rights land in a particular State or Territory; and
9
(c) the project area is, or any of the project areas are, Crown
10
land; and
11
(d) the project area is not, or the project areas are not, Torrens
12
system land.
13
Notification
14
(2) As soon as practicable after giving the approval, the Regulator
15
must notify the Crown lands Minister of the State or Territory, in
16
writing, of the approval.
17
Interests in land
Part 7
Entries in title registers
Division 4
Section 84
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
83
Division 4--Entries in title registers
1
84 Entries in title registers--general
2
Scope
3
(1) This section applies to a registered biodiversity project.
4
Entries
5
(2) The relevant land registration official may make such entries or
6
notations in or on registers or other documents kept by the official
7
(in electronic form or otherwise) as the official thinks appropriate
8
for the purposes of drawing the attention of persons to:
9
(a) the existence of the registered biodiversity project; and
10
(b) the fact that requirements may arise under this Act in relation
11
to the project; and
12
(c) such other matters (if any) relating to this Act as the official
13
considers appropriate.
14
85 Entries in title registers--biodiversity maintenance areas
15
Scope
16
(1) This section applies to one or more areas of land if those areas of
17
land are biodiversity maintenance areas declared under a
18
biodiversity maintenance declaration.
19
Note:
See Part 13 (biodiversity maintenance declarations).
20
Entries
21
(2) The relevant land registration official may make such entries or
22
notations in or on registers or other documents kept by the official
23
(in electronic form or otherwise) as the official thinks appropriate
24
for the purposes of drawing the attention of persons to the
25
biodiversity maintenance declaration.
26
Part 8
Fit and proper person test
Section 86
84
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Part 8--Fit and proper person test
1
2
86 Simplified outline of this Part
3
A person passes the fit and proper person test if:
4
(a)
the person is a fit and proper person; and
5
(b)
the person is not an insolvent under administration; and
6
(c)
the person is not a Chapter 5 body corporate; and
7
(d)
if the person is a trust--the trustee, or each trustee,
8
passes the fit and proper person test.
9
87 Fit and proper person test
10
Individual
11
(1) For the purposes of this Act, an individual passes the
fit and
12
proper person test
if:
13
(a) the individual is a fit and proper person, having regard to:
14
(i) whether any of the events specified in the rules have
15
happened in relation to the individual; and
16
(ii) such other matters (if any) as are specified in the rules;
17
and
18
(b) the individual is not an insolvent under administration.
19
Body corporate
20
(2) For the purposes of this Act, a body corporate passes the
fit and
21
proper person test
if:
22
(a) the body corporate is a fit and proper person, having regard
23
to:
24
(i) whether any of the events specified in the rules have
25
happened in relation to the body corporate; and
26
(ii) whether any of the events specified in the rules have
27
happened in relation to an executive officer of the body
28
corporate; and
29
Fit and proper person test
Part 8
Section 87
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
85
(iii) such other matters (if any) as are specified in the rules;
1
and
2
(b) the body corporate is not a Chapter 5 body corporate.
3
Trust
4
(3) For the purposes of this Act, a trust passes the
fit and proper
5
person test
if:
6
(a) for a trust with one trustee--the trustee passes the fit and
7
proper person test under subsection (1) or (2); or
8
(b) for a trust with more than one trustee--each trustee passes
9
the fit and proper person test under subsection (1) or (2).
10
Spent convictions
11
(4) Rules made for the purposes of subparagraph (1)(a)(i) or (ii) or
12
(2)(a)(i), (ii) or (iii) must not affect the operation of Part VIIC of
13
the
Crimes Act 1914
.
14
Note:
Part VIIC of the
Crimes Act 1914
includes provisions that, in certain
15
circumstances, relieve persons from the requirement to disclose spent
16
convictions and require persons aware of such convictions to
17
disregard them.
18
Part 9
Reporting and notification requirements
Division 1
Introduction
Section 88
86
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Part 9--Reporting and notification requirements
1
Division 1--Introduction
2
88 Simplified outline of this Part
3
If a project proponent applies for the Regulator to issue a
4
biodiversity certificate, the application must be accompanied by a
5
biodiversity project report.
6
After a biodiversity certificate is issued in respect of a project, the
7
project proponent must give subsequent biodiversity project reports
8
for the rest of the activity period of the project.
9
Division 3 sets out requirements for a project proponent to notify
10
the Regulator of various matters, including the following:
11
(a)
the project proponent ceasing to have the right to carry
12
out the project;
13
(b)
the project proponent becoming aware of a significant
14
reversal of the biodiversity outcome to which the project
15
relates;
16
(c)
other matters set out in the rules.
17
Reporting and notification requirements
Part 9
Reporting requirements
Division 2
Section 89
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
87
Division 2--Reporting requirements
1
89 Biodiversity project reports--first report
2
(1) This section applies if the project proponent for a registered
3
biodiversity project applies under section 59 for the Regulator to
4
issue a biodiversity certificate in respect of the project.
5
(2) The application must be accompanied by a written report (a
6
biodiversity
project report
), in accordance with section 91, about
7
the project.
8
Note:
See paragraph 60(1)(g).
9
(3) The report must relate to a period (the
reporting period
for the
10
report) that:
11
(a) begins when the project was registered; and
12
(b) ends within 6 months before the application is made.
13
90 Biodiversity project reports--subsequent reports
14
(1) This section applies to a registered biodiversity project if the
15
Regulator has issued a biodiversity certificate in relation to the
16
project (whether or not the certificate is in effect).
17
(2) The project proponent for the project must give the Regulator a
18
written report (a
biodiversity project report
) in accordance with
19
section 91 about the project for a period that:
20
(a) is expressed to be the
reporting period
for the report; and
21
(b) begins immediately after the end of the previous reporting
22
period for a report under this section, or section 89, in
23
relation to the project; and
24
(c) subject to paragraph (d)--ends at least 1 month, and not
25
more than 5 years, after it begins; and
26
(d) ends no later than the end of the activity period for the
27
project.
28
Part 9
Reporting and notification requirements
Division 2
Reporting requirements
Section 91
88
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Civil penalty provision
1
(3) The project proponent for the project contravenes this subsection
2
if:
3
(a) subsection (2) requires the project proponent to give a
4
biodiversity project report for a reporting period; and
5
(b) the project proponent does not comply with the requirement
6
before the end of the period mentioned in paragraph 91(1)(g).
7
Civil penalty:
200 penalty units.
8
(4) For the purposes of subsection (3), assume that the reporting period
9
ends at the earlier of the following times:
10
(a) 5 years after the reporting period begins;
11
(b) the end of the activity period for the project.
12
(5) The maximum civil penalty for each day that a contravention of
13
subsection (3) continues is 5% of the maximum civil penalty that
14
can be imposed in respect of that contravention.
15
Note:
Subsection (3) is a continuing civil penalty provision under section 93
16
of the Regulatory Powers Act.
17
91 Requirements for biodiversity project reports
18
(1) A biodiversity project report about a registered biodiversity project
19
for a reporting period must:
20
(a) be given in the manner and form prescribed by the rules; and
21
(b) set out the information (if any) specified in the rules; and
22
(c) set out the information (if any) specified in the protocol
23
determination that covers the project; and
24
(d) if, under the rules, the biodiversity project report is subject to
25
audit under this Act--be accompanied by an audit report that
26
is:
27
(i) prescribed by the rules; and
28
(ii) prepared by a registered greenhouse and energy auditor
29
who has been appointed as an audit team leader for the
30
purpose; and
31
(e) be accompanied by such other documents (if any) as are
32
specified in the rules; and
33
Reporting and notification requirements
Part 9
Reporting requirements
Division 2
Section 91
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
89
(f) be accompanied by such other documents (if any) as are
1
specified in the protocol determination that covers the
2
project; and
3
(g) for a biodiversity project report under section 90 (subsequent
4
biodiversity project reports)--be given to the Regulator
5
within:
6
(i) 6 months after the end of the reporting period; or
7
(ii) if a greater number of months is specified in the
8
protocol determination that covers the project--that
9
greater number of months after the end of the reporting
10
period.
11
(2) To avoid doubt, a biodiversity project report for a period may deal
12
with matters that occur before the start of the period.
13
(3) Information specified in rules made for the purposes of
14
paragraph (1)(b) or a provision of a protocol determination made
15
for the purposes of paragraph (1)(c) may relate to a matter arising
16
before, during or after the reporting period.
17
(4) A document specified in rules made for the purposes of
18
paragraph (1)(e) or a provision of a protocol determination made
19
for the purposes of paragraph (1)(f) may relate to a matter arising
20
before, during or after the reporting period.
21
Part 9
Reporting and notification requirements
Division 3
Notification requirements
Section 92
90
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Division 3--Notification requirements
1
92 Notification requirement--project proponent ceases to have right
2
to carry out project
3
Scope
4
(1) This section applies to an eligible person if:
5
(a) the eligible person is the project proponent of a registered
6
biodiversity project that has one project proponent; and
7
(b) the eligible person ceases to have a right that is necessary for
8
the project to be carried out.
9
(2) This section also applies to an eligible person if:
10
(a) the eligible person is one of the project proponents of a
11
registered biodiversity project that has multiple project
12
proponents; and
13
(b) any of the project proponents ceases to have a right that is
14
necessary for the project to be carried out; and
15
(c) the cessation results in no project proponent having that right.
16
Notification
17
(2) The eligible person must, within 90 days after the cessation occurs,
18
notify the Regulator, in writing, of the cessation.
19
Civil penalty:
200 penalty units.
20
(3) The maximum civil penalty for each day that a contravention of
21
subsection (2) continues is 5% of the maximum civil penalty that
22
can be imposed in respect of that contravention.
23
Note:
Subsection (2) is a continuing civil penalty provision under section 93
24
of the Regulatory Powers Act.
25
Reporting and notification requirements
Part 9
Notification requirements
Division 3
Section 93
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
91
93 Notification requirement--withdrawal or cessation of regulatory
1
approval
2
Scope
3
(1) This section applies to the project proponent of a registered
4
biodiversity project if a regulatory approval required for the project
5
to be carried out:
6
(a) is withdrawn; or
7
(b) otherwise ceases to have effect for any reason.
8
Notification
9
(2) The project proponent must, within 90 days after the withdrawal or
10
cessation occurs, notify the Regulator, in writing, of the withdrawal
11
or cessation.
12
Civil penalty:
200 penalty units.
13
(3) The maximum civil penalty for each day that a contravention of
14
subsection (2) continues is 5% of the maximum civil penalty that
15
can be imposed in respect of that contravention.
16
Note:
Subsection (2) is a continuing civil penalty provision under section 93
17
of the Regulatory Powers Act.
18
94 Notification requirement--death of project proponent
19
Scope
20
(1) This section applies if a person who is the project proponent for a
21
registered biodiversity project dies.
22
Notification
23
(2) The person's legal personal representative must, within 90 days
24
after the death, notify the Regulator, in writing, of the death.
25
Civil penalty:
60 penalty units.
26
Part 9
Reporting and notification requirements
Division 3
Notification requirements
Section 95
92
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
(3) The maximum civil penalty for each day that a contravention of
1
subsection (2) continues is 5% of the maximum civil penalty that
2
can be imposed in respect of that contravention.
3
Note:
Subsection (2) is a continuing civil penalty provision under section 93
4
of the Regulatory Powers Act.
5
95 Notification requirement--protocol determinations
6
Scope
7
(1) This section applies if:
8
(a) there is a registered biodiversity project; and
9
(b) under the protocol determination that covers the project, the
10
project proponent for the project is subject to a requirement
11
to notify the Regulator of one or more matters relating to the
12
project.
13
Notification
14
(2) The project proponent must comply with the requirement.
15
Civil penalty:
60 penalty units.
16
(3) The maximum civil penalty for each day that a contravention of
17
subsection (2) continues is 5% of the maximum civil penalty that
18
can be imposed in respect of that contravention.
19
Note:
Subsection (2) is a continuing civil penalty provision under section 93
20
of the Regulatory Powers Act.
21
96 Notification requirement--reversal of biodiversity outcome
22
Scope
23
(1) This section applies if:
24
(a) there is a registered biodiversity project; and
25
(b) the project proponent for the project becomes aware of a
26
significant reversal of the biodiversity outcome to which the
27
project relates.
28
Note:
See section 98.
29
Reporting and notification requirements
Part 9
Notification requirements
Division 3
Section 97
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
93
Notification
1
(2) The project proponent must notify the Regulator of the reversal
2
within 60 days after the project proponent becomes aware of the
3
reversal.
4
Civil penalty:
200 penalty units.
5
(3) The maximum civil penalty for each day that a contravention of
6
subsection (2) continues is 5% of the maximum civil penalty that
7
can be imposed in respect of that contravention.
8
Note:
Subsection (2) is a continuing civil penalty provision under section 93
9
of the Regulatory Powers Act.
10
97 Notification requirement--event or conduct that causes, or is
11
likely to cause, reversal of biodiversity outcome
12
Scope
13
(1) This section applies if:
14
(a) there is a registered biodiversity project; and
15
(b) the project proponent for the project becomes aware of any of
16
the following:
17
(i) a natural disturbance that causes a significant reversal of
18
the biodiversity outcome to which the project relates;
19
(ii) a natural disturbance that is likely to cause a significant
20
reversal of the biodiversity outcome to which the project
21
relates;
22
(iii) conduct engaged in by the project proponent for the
23
project, or any other person, that causes a significant
24
reversal of the biodiversity outcome to which the project
25
relates;
26
(iv) conduct engaged in by the project proponent for the
27
project, or any other person, that is likely to cause a
28
significant reversal of the biodiversity outcome to which
29
the project relates.
30
Note:
See section 98.
31
Part 9
Reporting and notification requirements
Division 3
Notification requirements
Section 98
94
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Notification
1
(2) The project proponent must notify the Regulator of the matter
2
mentioned in paragraph (1)(b) within 60 days after the project
3
proponent becomes aware of the matter.
4
Civil penalty:
200 penalty units.
5
(3) The maximum civil penalty for each day that a contravention of
6
subsection (2) continues is 5% of the maximum civil penalty that
7
can be imposed in respect of that contravention.
8
Note:
Subsection (2) is a continuing civil penalty provision under section 93
9
of the Regulatory Powers Act.
10
98 Significant reversals in biodiversity outcomes--notification
11
requirements
12
(1) The rules may prescribe circumstances in which, for the purposes
13
of paragraphs 96(1)(b) and 97(1)(b):
14
(a) there is taken to have been a reversal of a biodiversity
15
outcome to which a registered biodiversity project relates;
16
and
17
(b) the reversal is taken to be significant, or not taken to be
18
significant.
19
(2) This section does not limit section 114 (significant reversals in
20
biodiversity outcomes--relinquishment requirements).
21
99 Notification requirement--event relevant to whether a project
22
proponent passes the fit and proper person test
23
Scope
24
(1) This section applies to a project proponent of a registered
25
biodiversity project if:
26
(a) in a case where the project proponent is an individual:
27
(i) an event set out in rules made for the purposes of
28
subparagraph 87(1)(a)(i) happens in relation to the
29
individual; or
30
Reporting and notification requirements
Part 9
Notification requirements
Division 3
Section 99
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
95
(ii) the individual becomes an insolvent under
1
administration; and
2
(b) in a case where the project proponent is a body corporate:
3
(i) an event set out in rules made for the purposes of
4
subparagraph 87(2)(a)(i) happens in relation to the body
5
corporate; or
6
(ii) the body corporate becomes a Chapter 5 body corporate;
7
or
8
(iii) an event set out in rules made for the purposes of
9
subparagraph 87(2)(a)(ii) happens in relation to an
10
executive officer of the body corporate; and
11
(c) in a case where the project proponent is a trust:
12
(i) an event mentioned in paragraph (a) of this subsection
13
happens in relation to a trustee who is an individual; or
14
(ii) an event mentioned in paragraph (b) of this subsection
15
happens in relation to a trustee that is a body corporate.
16
For the purposes of subparagraphs (a)(i) and (b)(i) and (iii) of this
17
subsection, disregard an event that consists of a breach of:
18
(d) this Act or an instrument under this Act; or
19
(e) a climate change law (within the meaning of the
Clean
20
Energy Regulator Act 2011
).
21
Notification
22
(2) The project proponent must, within 90 days after the event, notify
23
the Regulator, in writing, of the event.
24
Civil penalty:
200 penalty units.
25
(3) The maximum civil penalty for each day that a contravention of
26
subsection (2) continues is 5% of the maximum civil penalty that
27
can be imposed in respect of that contravention.
28
Note:
Subsection (2) is a continuing civil penalty provision under section 93
29
of the Regulatory Powers Act.
30
Part 9
Reporting and notification requirements
Division 3
Notification requirements
Section 100
96
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
100 The rules may impose notification requirements
1
(1) The rules may make provision requiring the project proponent of a
2
registered biodiversity project to notify the Regulator of a matter
3
within a period specified in the rules.
4
(2) A matter specified in rules made for the purposes of subsection (1)
5
must be relevant to the operation of this Act.
6
Notification
7
(3) If a person is subject to a requirement under rules made for the
8
purposes of subsection (1), the person must comply with that
9
requirement within the period specified in those rules.
10
Civil penalty:
60 penalty units.
11
(4) The maximum civil penalty for each day that a contravention of
12
subsection (3) continues is 5% of the maximum civil penalty that
13
can be imposed in respect of that contravention.
14
Note:
Subsection (3) is a continuing civil penalty provision under section 93
15
of the Regulatory Powers Act.
16
Information-gathering powers
Part 10
Section 101
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
97
Part 10--Information-gathering powers
1
2
101 Simplified outline of this Part
3
The Regulator may obtain information or documents.
4
102 Regulator may obtain information or documents
5
Scope
6
(1) This section applies to a person if the Regulator believes on
7
reasonable grounds that the person has information or a document
8
that is relevant to the operation of this Act or the associated
9
provisions.
10
Requirement
11
(2) The Regulator may, by written notice given to the person, require
12
the person:
13
(a) to give to the Regulator, within the period and in the manner
14
and form specified in the notice, any such information; or
15
(b) to produce to the Regulator, within the period and in the
16
manner specified in the notice, any such documents; or
17
(c) to make copies of any such documents and to produce to the
18
Regulator, within the period and in the manner specified in
19
the notice, those copies.
20
(3) A period specified under subsection (2) must not be shorter than 14
21
days after the notice is given.
22
Compliance
23
(4) A person must comply with a requirement under subsection (2) to
24
the extent that the person is capable of doing so.
25
Civil penalty:
60 penalty units.
26
Part 10
Information-gathering powers
Section 103
98
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
(5) The maximum civil penalty for each day that a contravention of
1
subsection (4) continues is 5% of the maximum civil penalty that
2
can be imposed in respect of that contravention.
3
Note:
Subsection (4) is a continuing civil penalty provision under section 93
4
of the Regulatory Powers Act.
5
No limitation
6
(6) This section is not limited by any other provision of this Act that
7
relates to the powers of the Regulator to obtain information or
8
documents.
9
103 Copying documents--compensation
10
A person is entitled to be paid by the Regulator, on behalf of the
11
Commonwealth, reasonable compensation for complying with a
12
requirement covered by paragraph 102(2)(c).
13
104 Copies of documents
14
(1) The Regulator may:
15
(a) inspect a document or copy produced under
16
subsection 102(2); and
17
(b) make and retain copies of, or take and retain extracts from,
18
such a document.
19
(2) The Regulator may retain possession of a copy of a document
20
produced in accordance with a requirement covered by
21
paragraph 102(2)(c).
22
105 Regulator may retain documents
23
(1) The Regulator may take, and retain for as long as is necessary,
24
possession of a document produced under subsection 102(2).
25
(2) The person otherwise entitled to possession of the document is
26
entitled to be supplied, as soon as practicable, with a copy certified
27
by the Regulator to be a true copy.
28
(3) The certified copy must be received in all courts and tribunals as
29
evidence as if it were the original.
30
Information-gathering powers
Part 10
Section 105
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
99
(4) Until a certified copy is supplied, the Regulator must, at such times
1
and places as the Regulator thinks appropriate, permit the person
2
otherwise entitled to possession of the document, or a person
3
authorised by that person, to inspect and make copies of, or take
4
extracts from, the document.
5
Part 11
Audits
Section 106
100
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Part 11--Audits
1
2
106 Simplified outline of this Part
3
The Regulator may require audits of one or more aspects of a
4
person's compliance with this Act and the associated provisions to
5
be carried out.
6
107 Compliance audits
7
Scope
8
(1) This section applies if:
9
(a) a person is, or has been, the project proponent for a registered
10
biodiversity project; and
11
(b) the Regulator has reasonable grounds to suspect that the
12
person has contravened, is contravening, or is proposing to
13
contravene, this Act or the associated provisions.
14
Audit
15
(2) The Regulator may, by written notice given to the person, require
16
the person to:
17
(a) appoint as an audit team leader:
18
(i) a registered greenhouse and energy auditor of the
19
person's choice; or
20
(ii) if the Regulator specifies a registered greenhouse and
21
energy auditor in the notice--that auditor; or
22
(iii) if the Regulator specifies more than one registered
23
greenhouse and energy auditor in the notice--any one
24
of those auditors; and
25
(b) arrange for the audit team leader to carry out an audit on one
26
or more aspects of the person's compliance with this Act or
27
the associated provisions; and
28
Audits
Part 11
Section 107
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
101
(c) arrange for the audit team leader to give the person a written
1
report setting out the results of the audit; and
2
(d) give the Regulator a copy of the audit report on or before the
3
day specified in the notice.
4
Note:
For the conduct of an audit under this section, see section 75 of the
5
National Greenhouse and Energy Reporting Act 2007
.
6
(3) The notice must specify:
7
(a) the type of audit to be carried out; and
8
(b) the matters to be covered by the audit; and
9
(c) the form of the audit report and the kinds of details it is to
10
contain.
11
(4) A person must provide the audit team leader, and any persons
12
assisting the audit team leader, with all reasonable facilities and
13
assistance necessary for the effective exercise of the audit team
14
leader's duties under this Act.
15
Civil penalty:
60 penalty units.
16
(5) If the Regulator gives a person written notice under subsection (2),
17
the person must comply with the requirements of the notice.
18
Civil penalty:
200 penalty units.
19
(6) The maximum civil penalty for each day that a contravention of
20
subsection (5) continues after the day specified for the purposes of
21
paragraph (2)(d) is 5% of the maximum civil penalty that can be
22
imposed in respect of that contravention.
23
Note:
Subsection (5) is a continuing civil penalty provision under section 93
24
of the Regulatory Powers Act.
25
Reimbursement
26
(7) If:
27
(a) the Regulator gives a person a notice under subsection (2);
28
and
29
(b) in complying with that notice, the person arranges for an
30
audit team leader to carry out an audit on one or more aspects
31
Part 11
Audits
Section 108
102
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
of the person's compliance with this Act or the associated
1
provisions; and
2
(c) the audit report does not indicate that there is evidence of
3
non-compliance by the person with this Act or the associated
4
provisions; and
5
(d) the person requests the Regulator to reimburse the person for
6
reasonable costs incurred by the person in complying with
7
the notice; and
8
(e) the Regulator is satisfied that the person would suffer
9
financial hardship if the person were not reimbursed for those
10
costs;
11
the Regulator may, on behalf of the Commonwealth, reimburse the
12
person for those costs.
13
Note:
For review of decisions, see Part 19.
14
(8) A request under paragraph (7)(d) must:
15
(a) be in writing; and
16
(b) be in a form approved, in writing, by the Regulator; and
17
(c) be accompanied by such information as is specified in the
18
rules; and
19
(d) be accompanied by such documents (if any) as are specified
20
in the rules.
21
(9) The approved form of request may provide for verification by
22
statutory declaration of statements in requests.
23
108 Other audits
24
Audit
25
(1) If a person is, or has been, the project proponent for a registered
26
biodiversity project, the Regulator may appoint a registered
27
greenhouse and energy auditor as an audit team leader to carry out
28
an audit of the person's compliance with one or more aspects of
29
this Act or the associated provisions.
30
(2) The Regulator must give written notice to the person of a decision
31
to appoint an audit team leader under subsection (1). The notice
32
must:
33
Audits
Part 11
Section 108
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
103
(a) specify the audit team leader; and
1
(b) specify the period within which the audit is to be undertaken;
2
and
3
(c) specify the type of audit to be carried out; and
4
(d) specify the matters to be covered by the audit; and
5
(e) be given to the person at a reasonable time before the audit is
6
to be undertaken.
7
Note:
For the conduct of an audit under this section, see section 75 of the
8
National Greenhouse and Energy Reporting Act 2007
.
9
(3) The person must provide the audit team leader, and any persons
10
assisting the audit team leader, with all reasonable facilities and
11
assistance necessary for the effective exercise of the audit team
12
leader's duties under this Act.
13
Civil penalty:
60 penalty units.
14
Part 12
Relinquishment requirements
Division 1
Introduction
Section 109
104
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Part 12--Relinquishment requirements
1
Division 1--Introduction
2
109 Simplified outline of this Part
3
A biodiversity certificate may be required to be relinquished if:
4
(a)
the certificate was issued as a result of false or
5
misleading information; or
6
(b)
the registration of the biodiversity project for which the
7
certificate was issued is cancelled; or
8
(c)
there is a significant reversal of a biodiversity outcome.
9
A requirement to relinquish a biodiversity certificate may be
10
satisfied by relinquishment of one or more equivalent certificates
11
instead.
12
A civil penalty may apply to a failure to comply with a
13
relinquishment requirement, and a biodiversity maintenance
14
declaration may be made under Part 13.
15
Relinquishment requirements
Part 12
Relinquishment notices
Division 2
Section 110
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
105
Division 2--Relinquishment notices
1
110 Relinquishment notice--false or misleading information
2
Scope
3
(1) This section applies to a person if:
4
(a) a biodiversity certificate (the
original biodiversity
certificate
)
5
has been issued to the person in relation to a biodiversity
6
project (whether or not the person still holds the certificate,
7
and whether or not the certificate remains in effect); and
8
(b) information was given by the person to the Regulator in
9
connection with the project; and
10
(c) the information was:
11
(i) contained in an application under this Act or the rules;
12
or
13
(ii) given in connection with an application under this Act
14
or the rules; or
15
(iii) contained in a biodiversity project report; or
16
(iv) contained in a notification under Division 3 of Part 9;
17
and
18
(d) the information was false or misleading in a material
19
particular; and
20
(e) the issue of the certificate was substantially attributable
21
(whether directly or indirectly) to the false or misleading
22
information.
23
Relinquishment notice
24
(2) The Regulator may give a relinquishment notice to the person in
25
relation to the original biodiversity certificate.
26
Note:
For review of decisions, see Part 19.
27
Part 12
Relinquishment requirements
Division 2
Relinquishment notices
Section 111
106
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
111 Relinquishment notice--cancellation of registration of
1
biodiversity project
2
Scope
3
(1) This section applies if:
4
(a) a biodiversity certificate (the
original biodiversity
certificate
)
5
has been issued in relation to a biodiversity project (whether
6
or not the certificate remains in effect); and
7
(b) the registration of the project as a registered biodiversity
8
project is cancelled under rules made for the purposes of any
9
of the following provisions:
10
(i) subsection 29(1) (eligibility requirements not met etc.);
11
(ii) subsection 30(1) (project proponent ceases to pass the
12
fit and proper person test);
13
(iii) subsection 31(1) (project proponent ceases to exist etc.);
14
(iv) subsection 32(1) (false or misleading information);
15
(v) subsection 42(1) (failure of multiple project proponents
16
to nominate a nominee); and
17
(c) the permanence period of the project has not ended.
18
Relinquishment notice
19
(2) The Regulator may give a relinquishment notice, in relation to the
20
original biodiversity certificate, to any person who was a project
21
proponent of the project immediately before the registration was
22
cancelled as mentioned in paragraph (1)(b).
23
Note:
For review of decisions, see Part 19.
24
112 Relinquishment notice--reversal of biodiversity outcome other
25
than due to natural disturbance or conduct etc.
26
Scope
27
(1) This section applies if:
28
(a) a biodiversity certificate (the
original biodiversity
certificate
)
29
has been issued in relation to a biodiversity project (whether
30
or not the certificate remains in effect); and
31
Relinquishment requirements
Part 12
Relinquishment notices
Division 2
Section 113
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
107
(b) subject to rules made for the purposes of section 114, there
1
has been a significant reversal of the biodiversity outcome to
2
which the project relates; and
3
(c) the reversal is not attributable to:
4
(i) natural disturbance; or
5
(ii) reasonable actions taken to reduce the risk of bushfire;
6
or
7
(iii) conduct engaged in by a person (other than the project
8
proponent for the project), where the conduct is not
9
within the reasonable control of the project proponent;
10
and
11
(d) the permanence period of the project has not ended.
12
Relinquishment notice
13
(2) The Regulator may give a relinquishment notice, in relation to the
14
original biodiversity certificate, to the project proponent.
15
Note 1:
For projects with multiple project proponents, see Part 3 (and in
16
particular sections 40 and 43).
17
Note 2:
For review of decisions, see Part 19.
18
113 Relinquishment notice--reversal of biodiversity outcome due to
19
natural disturbance or conduct and no mitigation
20
happens
21
Scope
22
(1) This section applies if:
23
(a) a biodiversity certificate (the
original biodiversity
certificate
)
24
has been issued in relation to a biodiversity project (whether
25
or not the certificate remains in effect); and
26
(b) subject to rules made for the purposes of section 114, there
27
has been a significant reversal of the biodiversity outcome to
28
which the project relates; and
29
(c) the reversal is attributable to:
30
(i) natural disturbance; or
31
(ii) conduct engaged in by a person (other than the project
32
proponent for the project), where the conduct is not
33
Part 12
Relinquishment requirements
Division 2
Relinquishment notices
Section 114
108
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
within the reasonable control of the project proponent;
1
and
2
(d) the Regulator is not satisfied that the project proponent has,
3
within a reasonable period, taken reasonable steps to mitigate
4
the effect of the natural disturbance or conduct, as the case
5
may be, on the project; and
6
(e) the permanence period of the project has not ended.
7
Relinquishment notice
8
(2) The Regulator may give a relinquishment notice, in relation to the
9
original biodiversity certificate, to the project proponent.
10
Note 1:
For projects with multiple project proponents, see Part 3 (and in
11
particular sections 40 and 43).
12
Note 2:
For review of decisions, see Part 19.
13
114 Significant reversals in biodiversity outcomes--relinquishment
14
requirements
15
(1) The rules may prescribe circumstances in which, for the purposes
16
of paragraphs 112(1)(b) and 113(1)(b):
17
(a) there is taken to have been a reversal of the biodiversity
18
outcome to which a registered biodiversity project relates;
19
and
20
(b) the reversal is taken to be significant, or not taken to be
21
significant.
22
(2) This section does not limit section 98 (significant reversals in
23
biodiversity outcomes--notification requirements).
24
115 Form and content of relinquishment notice
25
A relinquishment notice must:
26
(a) be in writing; and
27
(b) include the information prescribed by the rules.
28
Relinquishment requirements
Part 12
Complying with a relinquishment notice
Division 3
Section 116
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
109
Division 3--Complying with a relinquishment notice
1
116 Requirement for compliance with relinquishment notice
2
(1) A relinquishment notice given to a person (the
notice recipient
)
3
under this Part must be complied with under section 117 before the
4
end of 6 months after the notice is given.
5
Extension of period to comply
6
(2) The Regulator may extend the period mentioned in subsection (1)
7
by a further period of up to 6 months if the Regulator is satisfied
8
that:
9
(a) not doing so would lead to significant hardship for the notice
10
recipient; or
11
(b) the notice recipient cannot relinquish the original biodiversity
12
certificate under paragraph 117(1)(a), and there are no
13
certificates that could be used to comply with paragraph
14
117(1)(b) reasonably available for the notice recipient to
15
obtain.
16
Note:
For review of decisions, see Part 19.
17
(3) Only one extension under subsection (2) may be given in respect of
18
any relinquishment notice.
19
(4) The rules may provide for and in relation to:
20
(a) a person applying for the Regulator to grant an extension
21
under subsection (2); and
22
(b) the Regulator considering, and making a decision on, such an
23
application.
24
Civil penalty
25
(5) A person is liable to a civil penalty if:
26
(a) the person is given a relinquishment notice under this Part;
27
and
28
Part 12
Relinquishment requirements
Division 3
Complying with a relinquishment notice
Section 116
110
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
(b) the notice is not complied with before the end of the period
1
mentioned in subsection (1) (subject to any extension under
2
subsection (2)).
3
(6) Subsection (5) is a civil penalty provision.
4
(7) Despite subsection 82(5) of the Regulatory Powers Act, the
5
pecuniary penalty in relation to a contravention of subsection (5) of
6
this section (whether the person is a body corporate or otherwise)
7
must not be more than the greater of:
8
(a) 2,000 penalty units; and
9
(b) if the court can determine the market value of the
10
biodiversity certificate in relation to which the
11
relinquishment notice was given--twice that market value.
12
(8) In determining the pecuniary penalty, the court must take into
13
account:
14
(a) the nature and extent of any harm to the environment that has
15
been, might be or will be caused by the conduct or
16
circumstances that resulted in the relinquishment notice
17
being given; and
18
(b) the nature and extent of any harm to the market for
19
biodiversity certificates that has been, might be or will be
20
caused by:
21
(i) the conduct or circumstances that resulted in the
22
relinquishment notice being given; or
23
(ii) the failure to comply with the relinquishment notice.
24
(9) Subsection (8) does not limit subsection 82(6) of the Regulatory
25
Powers Act.
26
(10) To avoid doubt, a person may be liable to pay a pecuniary penalty
27
for a contravention of subsection (5) even if:
28
(a) the person is not the holder of any biodiversity certificates; or
29
(b) the person is not the holder of the biodiversity certificate in
30
relation to which the relinquishment notice was given; or
31
(c) the biodiversity certificate in relation to which the
32
relinquishment notice was given is no longer in effect; or
33
Relinquishment requirements
Part 12
Complying with a relinquishment notice
Division 3
Section 117
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
111
(d) the person is not the holder of one or more biodiversity
1
certificates that, if relinquished under section 118 in relation
2
to the relinquishment notice, would result in the
3
relinquishment notice being complied with under paragraph
4
117(1)(b); or
5
(e) no biodiversity certificates exist that, if relinquished under
6
section 118 in relation to the relinquishment notice, would
7
result in the relinquishment notice being complied with under
8
paragraph 117(1)(b).
9
(11) Section 93 (continuing contraventions) of the Regulatory Powers
10
Act does not apply to subsection (5) of this section.
11
117 Compliance with relinquishment requirement--relinquishing
12
equivalent biodiversity certificate or certificates
13
(1) A relinquishment notice that relates to a biodiversity certificate
14
(the
original biodiversity certificate
) is complied with if:
15
(a) the original biodiversity certificate is relinquished, in relation
16
to the notice, in accordance with section 118; or
17
(b) both of the following apply:
18
(i) one or more other biodiversity certificates (
relinquished
19
certificates
) are relinquished, in relation to the notice, in
20
accordance with section 118;
21
(ii) the relinquished certificate or certificates meet the
22
relinquishment equivalence requirements in relation to
23
the original biodiversity certificate.
24
Note:
The certificate or certificates may be relinquished by the person who
25
was given the relinquishment notice, or by another person.
26
(2) The rules may prescribe the circumstances in which:
27
(a) a biodiversity certificate meets the
relinquishment
28
equivalence requirements
in relation to another biodiversity
29
certificate; or
30
(b) 2 or more biodiversity certificates together meet the
31
relinquishment equivalence requirements
in relation to
32
another biodiversity certificate.
33
Part 12
Relinquishment requirements
Division 3
Complying with a relinquishment notice
Section 118
112
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
118 How biodiversity certificates are relinquished
1
(1) If a person is the holder of a biodiversity certificate, the person
2
may, by electronic notice transmitted to the Regulator, relinquish
3
the certificate.
4
(2) A notice under subsection (1) must:
5
(a) specify the biodiversity certificate that is being relinquished;
6
and
7
(b) if the certificate is being relinquished in order to comply with
8
a relinquishment notice given under section 110, 111, 112 or
9
113--identify the relinquishment notice in relation to which
10
the certificate is being relinquished; and
11
(c) if the certificate is being voluntarily relinquished in order to
12
satisfy a condition for cancellation of the registration of a
13
biodiversity project under section 24 (voluntary cancellation
14
of registration where certificate is in effect)--identify the
15
registered biodiversity project in relation to which the
16
certificate is being relinquished; and
17
(d) if the certificate is being voluntarily relinquished for the
18
purposes of paragraph 124(1)(c) (revocation of a biodiversity
19
maintenance declaration)--identify the biodiversity
20
maintenance declaration in relation to which the certificate is
21
being relinquished; and
22
(e) specify the account number of the person's Registry account
23
in which there is an entry for the certificate; and
24
(f) include any other information prescribed by the rules.
25
(3) If a person relinquishes a biodiversity certificate under this section:
26
(a) the biodiversity certificate is cancelled; and
27
(b) the Regulator must remove the entry for the certificate from
28
the person's Registry account in which there is an entry for
29
the certificate.
30
Note:
A biodiversity certificate that is cancelled under subsection (3) may
31
have originally been issued for a biodiversity project that remains a
32
registered biodiversity project (this may occur, for example, if the
33
cancelled certificate was relinquished in accordance with paragraph
34
117(1)(b) to comply with a relinquishment notice issued for a different
35
project).
36
Relinquishment requirements
Part 12
Complying with a relinquishment notice
Division 3
Section 118
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
113
In such a case, the cancellation of the certificate does not affect the
1
registration of the biodiversity project to which the certificate relates,
2
and the obligations of the project proponent in relation to that project
3
may continue to apply.
4
(4) To avoid doubt, the relinquishment of a particular biodiversity
5
certificate is effective for only one purpose mentioned in
6
paragraph (2)(b), (c) or (d).
7
(5) The Register must set out a record of each notice under
8
subsection (1).
9
Part 13
Biodiversity maintenance declarations
Division 1
Introduction
Section 119
114
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Part 13--Biodiversity maintenance declarations
1
Division 1--Introduction
2
119 Simplified outline of this Part
3
If a relinquishment requirement under Part 12 that relates to a
4
biodiversity project is not complied with, the Regulator may
5
declare a biodiversity maintenance area.
6
The declaration may prohibit specified activities in the area. A civil
7
penalty may apply to a person who contravenes a prohibition in a
8
biodiversity maintenance declaration.
9
Biodiversity maintenance declarations
Part 13
Biodiversity maintenance declarations
Division 2
Section 120
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
115
Division 2--Biodiversity maintenance declarations
1
120 Biodiversity maintenance declaration
2
Declaration
3
(1) The Regulator may, by legislative instrument, declare that a
4
specified area of land is a
biodiversity maintenance
area
if:
5
(a) the biodiversity maintenance area is, or has been, the project
6
area, or part of the project area, of a biodiversity project (the
7
maintained project
); and
8
(b) the maintained project is, or has been, a registered
9
biodiversity project; and
10
(c) a biodiversity certificate (the
original biodiversity
certificate
)
11
has been issued in relation to the maintained biodiversity
12
project (whether or not the certificate remains in effect); and
13
(d) any of the following apply:
14
(i) a relinquishment notice has been given in relation to the
15
original biodiversity certificate, and the notice was not
16
complied with in accordance with section 116;
17
(ii) a relinquishment notice has been given in relation to the
18
original biodiversity certificate, and the Regulator is
19
satisfied that it is likely that the notice will not be
20
complied with in accordance with section 116;
21
(iii) the Regulator is satisfied that a relinquishment notice is
22
likely to be given in relation to the original biodiversity
23
certificate, and that it is likely that the notice, if given,
24
would not be complied with in accordance with section
25
116;
26
(iv) the Regulator is satisfied that it would be appropriate to
27
give a relinquishment notice in relation to the original
28
biodiversity certificate, but the notice cannot be given
29
because the person to whom the Regulator would give
30
the notice cannot be located or no longer exists, or for
31
some other reason.
32
Part 13
Biodiversity maintenance declarations
Division 2
Biodiversity maintenance declarations
Section 120
116
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
(2) A declaration under subsection (1) is a
biodiversity maintenance
1
declaration
.
2
(3) The biodiversity maintenance area specified in a biodiversity
3
maintenance declaration may consist of:
4
(a) a single area of land; or
5
(b) multiple areas of land, which need not be continuous.
6
Declared prohibited activities
7
(4) A biodiversity maintenance declaration may specify one or more
8
activities that are
declared
prohibited activities
in relation to the
9
biodiversity maintenance area.
10
(5) Without limiting subsection (4), an activity may be specified under
11
that subsection by reference to:
12
(a) the area or areas of land (which must be, or fall within, the
13
biodiversity maintenance area) on which the activity must not
14
be carried out; or
15
(b) a manner or manners in which the activity must not be
16
carried out; or
17
(c) the time or times at which the activity must not be carried
18
out; or
19
(d) the period or periods during which the activity must not be
20
carried out; or
21
(e) the person or persons who must not carry out the activity.
22
Notice of declaration
23
(6) If the Regulator makes a biodiversity maintenance declaration
24
under subsection (1), the Regulator must take all reasonable steps
25
to ensure that notice of the making of the declaration is given to:
26
(a) the project proponent for the maintained project; and
27
(b) the relevant land registration official; and
28
(c) any other person specified in the rules.
29
(7) A failure to comply with subsection (6) does not affect the validity
30
of a biodiversity maintenance declaration.
31
Biodiversity maintenance declarations
Part 13
Biodiversity maintenance declarations
Division 2
Section 121
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
117
121 Civil penalty for carrying out declared prohibited activity
1
A person must not carry out an activity in a biodiversity
2
maintenance area if the activity is a declared prohibited activity in
3
relation to the biodiversity maintenance area.
4
Civil penalty:
2,000 penalty units.
5
122 When a biodiversity maintenance declaration ceases to be in
6
force
7
Unless sooner revoked, a biodiversity maintenance declaration
8
ceases to be in force at the earlier of the following times:
9
(a) the end of the permanence period for the maintained project;
10
(b) if a civil penalty order is made under Part 4 of the Regulatory
11
Powers Act, as that Part applies in relation to subsection
12
116(5) of this Act, that relates to a relinquishment notice
13
given in respect of the biodiversity certificate issued in
14
respect of the maintained project--the time the penalty is
15
paid in full to the Commonwealth.
16
123 Variation or revocation of biodiversity maintenance declaration
17
Scope
18
(1) This section applies if a biodiversity maintenance declaration is in
19
force in relation to an area or areas of land.
20
Variation or revocation
21
(2) The Regulator may, by legislative instrument, vary or revoke the
22
declaration.
23
(3) The Regulator may do so:
24
(a) on the Regulator's own initiative; or
25
(b) on application made to the Regulator by a person.
26
Application
27
(4) An application under paragraph (3)(b) must:
28
Part 13
Biodiversity maintenance declarations
Division 2
Biodiversity maintenance declarations
Section 124
118
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
(a) be in writing; and
1
(b) be in a form approved, in writing, by the Regulator; and
2
(c) be accompanied by the fee (if any) specified in the rules.
3
(5) A fee specified under paragraph (4)(c) must not be such as to
4
amount to taxation.
5
Notification of variation or revocation
6
(6) If the Regulator varies or revokes the declaration, the Regulator
7
must take all reasonable steps to ensure that notice of the variation
8
or revocation is given to:
9
(a) the project proponent for the maintained project; and
10
(b) the relevant land registration official; and
11
(c) any other person specified in the rules.
12
(7) A failure to comply with subsection (6) does not affect the validity
13
of a variation or revocation.
14
Refusal
15
(8) If the Regulator decides to refuse to vary or revoke the declaration
16
on an application under paragraph (3)(b), the Regulator must give
17
written notice of the decision to the applicant.
18
124 Revocation of biodiversity maintenance declaration--voluntary
19
relinquishment of biodiversity certificate
20
Scope
21
(1) This section applies if:
22
(a) a biodiversity maintenance declaration is in force; and
23
(b) a person applies to the Regulator for the revocation of the
24
biodiversity maintenance declaration; and
25
(c) before the application was made, the applicant or another
26
person voluntarily relinquished, in accordance with section
27
118 and in relation to the biodiversity maintenance
28
declaration:
29
(i) the biodiversity certificate for the maintained project; or
30
Biodiversity maintenance declarations
Part 13
Biodiversity maintenance declarations
Division 2
Section 125
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
119
(ii) one or more other biodiversity certificates that meet the
1
relinquishment equivalence requirements in relation to
2
the biodiversity certificate for the maintained project.
3
Note:
For when one or more biodiversity certificates meet the
4
relinquishment equivalence requirements
in relation to another
5
biodiversity certificate, see rules made for the purposes of subsection
6
117(2).
7
Revocation
8
(2) The Regulator must, by legislative instrument, revoke the
9
declaration.
10
Application
11
(3) An application under paragraph (1)(b) must:
12
(a) be in writing; and
13
(b) be in a form approved, in writing, by the Regulator.
14
Notification of revocation
15
(4) If the Regulator revokes the declaration, the Regulator must take
16
all reasonable steps to ensure that notice of the revocation is given
17
to:
18
(a) the project proponent for the maintained project; and
19
(b) the relevant land registration official; and
20
(c) any other person specified in the rules.
21
(5) A failure to comply with subsection (4) does not affect the validity
22
of a revocation.
23
Refusal
24
(6) If the Regulator decides to refuse to revoke the declaration, the
25
Regulator must give written notice of the decision to the applicant.
26
125 Delegation by the Regulator
27
(1) The Regulator may, by writing, delegate a power to make, vary or
28
revoke a biodiversity maintenance declaration to a member of the
29
Regulator.
30
Part 13
Biodiversity maintenance declarations
Division 2
Biodiversity maintenance declarations
Section 125
120
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Note:
Under subsection 35(3) of the
Clean Energy Regulator Act 2011
, the
1
Regulator's general power of delegation does not apply to a power to
2
make, vary or revoke a legislative instrument.
3
(2) A delegate must comply with any written directions of the
4
Regulator.
5
Registers
Part 14
Introduction
Division 1
Section 126
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
121
Part 14--Registers
1
Division 1--Introduction
2
126 Simplified outline of this Part
3
The Agriculture Biodiversity Stewardship Market Register holds
4
entries for each registered biodiversity project and each
5
biodiversity certificate. The Regulator must keep the Register in
6
accordance with the rules.
7
The rules may also provide for an online platform, to facilitate
8
trading in biodiversity certificates and for other purposes.
9
Part 14
Registers
Division 2
Agriculture Biodiversity Stewardship Market Register
Section 127
122
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Division 2--Agriculture Biodiversity Stewardship Market
1
Register
2
127 Agriculture Biodiversity Stewardship Market Register
3
(1) The Regulator must keep a register, to be known as the Agriculture
4
Biodiversity Stewardship Market Register.
5
Note:
In this Act, the Agriculture Biodiversity Stewardship Market Register
6
is known as the Register (see the definition of
Register
in section 7).
7
(2) The Register is to be maintained by electronic means.
8
(3) The Register is to be made available for inspection on the
9
Regulator's website.
10
(4) The Regulator must ensure that the Register is up to date.
11
128 Entries in the Register--registered biodiversity projects and
12
former registered biodiversity projects
13
(1) The Register must set out, for each registered biodiversity project:
14
(a) the name of the project; and
15
(b) the project area or areas for the project; and
16
(c) a description of the project, including such details (if any) as
17
are prescribed by the rules; and
18
(d) the project proponent or project proponents for the project;
19
and
20
(e) the protocol determination that covers the project; and
21
(f) whether the registration of the project is subject to a
22
condition under section 18 (conditions about obtaining
23
regulatory approvals); and
24
(g) whether the registration of the project is subject to a
25
condition under section 19 (conditions about obtaining
26
consent from eligible interest holders); and
27
(h) such other information (if any) as is provided for under
28
paragraph 45(1)(c) by the protocol determination that covers
29
the project; and
30
Registers
Part 14
Agriculture Biodiversity Stewardship Market Register
Division 2
Section 129
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
123
(i) such other information (if any) as the Regulator considers
1
appropriate; and
2
(j) such other information (if any) as is prescribed by the rules.
3
(2) Paragraph (1)(b) has effect subject to section 129.
4
Note:
Section 129 deals with requests for information about a project area
5
not to be set out in the Register.
6
Former registered biodiversity projects
7
(3) The rules may provide for the Register to set out prescribed
8
information for biodiversity projects that have been, but have
9
ceased to be, registered biodiversity projects (including such
10
projects that are no longer being carried on).
11
129 Requests for information about project area not to be set out in
12
the Register
13
(1) The Register must not set out a project area for a registered
14
biodiversity project if:
15
(a) the project proponent for the project has requested the
16
Regulator not to set out the project area in the Register; and
17
(b) the Regulator is satisfied that:
18
(i) setting out the project area could reasonably be expected
19
to substantially prejudice a matter referred to in
20
subsection (2); and
21
(ii) the prejudice outweighs the public interest in the setting
22
out of the project area.
23
(2) For the purposes of subparagraph (1)(b)(i), the matters are the
24
following:
25
(a) the commercial interests of the project proponent for the
26
project or another person;
27
(b) the biodiversity of the project area;
28
(c) the safety of any person.
29
(3) A request under subsection (1) must:
30
(a) be in writing; and
31
(b) be in a form approved, in writing, by the Regulator.
32
Part 14
Registers
Division 2
Agriculture Biodiversity Stewardship Market Register
Section 130
124
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
(4) The Regulator must take all reasonable steps to ensure that a
1
decision is made on the request within 30 days after the request
2
was made.
3
(5) If the Regulator decides to refuse the request, the Regulator must
4
give written notice of the decision to the project proponent.
5
130 Entries in the Register--biodiversity certificates
6
(1) The Register must set out, for each biodiversity certificate that is in
7
effect:
8
(a) the biodiversity project to which the certificate relates; and
9
(b) the date of issue of the certificate; and
10
(c) the holder of the certificate; and
11
(d) such other information (if any) as is provided for under
12
paragraph 45(1)(g) by the protocol determination that covers
13
the project; and
14
(e) such other information (if any) as is prescribed by the rules.
15
(2) The Register must set out, for each biodiversity certificate that has
16
been in effect, but has ceased to be in effect:
17
(a) the biodiversity project to which the certificate related; and
18
(b) the date of issue of the certificate; and
19
(c) such other information (if any) as is provided for under
20
paragraph 45(1)(g) by the protocol determination that covers
21
the project; and
22
(d) such other information (if any) as is prescribed by the rules.
23
131 Entries in the Register--accounts for holding biodiversity
24
certificates
25
The rules may make provision for and in relation to empowering
26
the Regulator to open accounts in the Register to hold biodiversity
27
certificates.
28
132 Rules may make provision in relation to the Register
29
(1) The rules may make provision for and in relation to the Register.
30
Registers
Part 14
Agriculture Biodiversity Stewardship Market Register
Division 2
Section 132
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
125
(2) Without limiting subsection (1), the rules may make provision for
1
or in relation to any of the following:
2
(a) matters that are to be recorded in the Register;
3
(b) the manner in which information may be communicated to or
4
by the Regulator in relation to the Register;
5
(c) requests to open, close, transfer or otherwise deal with
6
accounts in the Register (including forms for making
7
requests, information that must accompany a request and the
8
consideration of a request by the Regulator);
9
(d) identification procedures that the Regulator may or must
10
carry out in relation to a record in the Register;
11
(e) joint accounts;
12
(f) accounts to be kept for the Commonwealth;
13
(g) unilateral closure of accounts by the Regulator;
14
(h) the holding of biodiversity certificates in accounts in the
15
Register, and the transfer of certificates between accounts;
16
(i) requiring the holders of accounts to notify the Regulator of
17
specified events;
18
(j) correction or rectification of the Register;
19
(k) verification by statutory declaration of information provided
20
to the Regulator in relation to the Register;
21
(l) fees for things done by the Regulator in relation to the
22
Register.
23
(3) A fee provided for by rules made for the purposes of this section
24
must not be such as to amount to taxation.
25
Part 14
Registers
Division 3
Online platform
Section 133
126
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Division 3--Online platform
1
133 Online Platform
2
(1) The rules may make provision for and in relation to empowering
3
the Regulator to maintain an online platform for any of the
4
following purposes:
5
(a) facilitating the trading of any of the following:
6
(i) biodiversity certificates;
7
(ii) other certificates, units or credits (however described,
8
and whether issued under a law of the Commonwealth,
9
a State or a Territory, or in some other way) that relate
10
to biodiversity projects;
11
(b) facilitating arrangements between project proponents, or
12
prospective project proponents, of registered biodiversity
13
projects and prospective purchasers of biodiversity
14
certificates;
15
(c) facilitating arrangements relating to biodiversity projects that
16
are not, and are not intended to be, registered under this Act;
17
(d) any other purpose incidental or related to any of the above.
18
(2) The rules must not require a person to use the online platform in
19
order to:
20
(a) be the project proponent of a registered biodiversity project;
21
or
22
(b) be issued with, hold or deal with a biodiversity certificate; or
23
(c) otherwise receive the benefit of any other provision of this
24
Act.
25
Publication of information
Part 15
Introduction
Division 1
Section 134
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
127
Part 15--Publication of information
1
Division 1--Introduction
2
134 Simplified outline of this Part
3
This Part allows or requires the Regulator and the Secretary to
4
publish certain information about biodiversity certificates,
5
registered biodiversity projects and the operation of this Act.
6
Part 15
Publication of information
Division 2
Information about biodiversity certificates
Section 135
128
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Division 2--Information about biodiversity certificates
1
135 Information about biodiversity certificates
2
(1) As soon as practicable after a biodiversity certificate is issued to a
3
person, the Regulator must publish on the Regulator's website:
4
(a) the name of the person; and
5
(b) such other information relating to the certificate as is
6
prescribed by the rules.
7
(2) As soon as practicable after a variation of a biodiversity certificate
8
is made, the Regulator must publish on the Regulator's website:
9
(a) the name of the holder of the certificate; and
10
(b) such other information relating to the certificate or the
11
variation as is prescribed by the rules.
12
(3) As soon as practicable after a biodiversity certificate is transferred
13
from one account in the Register to another account in the Register,
14
the Regulator must publish on the Regulator's website:
15
(a) the name of the holder of each of those accounts; and
16
(b) such other information relating to the certificate or the
17
transfer as is prescribed by the rules.
18
136 Reports about activities of Regulator
19
(1) As soon as practicable after the end of a financial year, the
20
Regulator must publish on the Regulator's website a report about
21
the activities of the Regulator under this Act during the financial
22
year.
23
(2) The report must deal with any matters prescribed by the rules.
24
137 Publication of concise description of the characteristics of
25
biodiversity certificates
26
The Regulator must:
27
Publication of information
Part 15
Information about biodiversity certificates
Division 2
Section 137
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
129
(a) publish on the Regulator's website a statement setting out a
1
concise description of the characteristics of biodiversity
2
certificates; and
3
(b) keep that statement up to date.
4
Part 15
Publication of information
Division 3
Information about biodiversity certificates purchased by the Commonwealth
Section 138
130
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Division 3--Information about biodiversity certificates
1
purchased by the Commonwealth
2
138 Information about biodiversity conservation purchasing
3
processes
4
After the Secretary conducts a biodiversity conservation
5
purchasing process, the Secretary may publish on the Agriculture
6
Department's website the following information:
7
(a) when the process was conducted;
8
(b) the total amount that the Commonwealth agreed to pay by
9
way of purchasing biodiversity certificates through the
10
process (whether or not those payments have been made);
11
(c) such other summary information (if any) relating to the
12
process as the Secretary considers appropriate;
13
(d) such other statistics (if any) relating to the process as the
14
Secretary considers appropriate.
15
139 Annual reports about purchases of biodiversity certificates
16
The Secretary may publish on the Agriculture Department's
17
website a report, in relation to a financial year, on the following
18
matters:
19
(a) the total number of biodiversity certificates that the
20
Commonwealth has purchased, or has agreed to purchase,
21
under biodiversity conservation contracts entered into during
22
the financial year;
23
(b) the total amount that the Commonwealth will be liable to
24
pay, or has paid, under biodiversity conservation contracts
25
entered into during the financial year;
26
(c) the total number of biodiversity certificates that were
27
transferred to the Commonwealth during the financial year as
28
a result of biodiversity conservation contracts (including such
29
contracts entered into before the financial year);
30
(d) the total amount that the Commonwealth paid during the
31
financial year under biodiversity conservation contracts
32
Publication of information
Part 15
Information about biodiversity certificates purchased by the Commonwealth
Division 3
Section 139
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
131
(including such contracts entered into before the financial
1
year);
2
(e) for each biodiversity certificate transferred to the
3
Commonwealth during the financial year as a result of a
4
biodiversity conservation contract (including such a contract
5
entered into before the financial year)--sufficient
6
information to identify the registered biodiversity project in
7
relation to which the certificate was issued;
8
(f) such other summary information (if any) relating to the
9
purchase of biodiversity certificates by the Commonwealth
10
under biodiversity conservation contracts as the Secretary
11
considers appropriate;
12
(g) such other statistics (if any) relating to the purchase of
13
biodiversity certificates by the Commonwealth under
14
biodiversity conservation contracts as the Secretary considers
15
appropriate.
16
Part 15
Publication of information
Division 4
Information about relinquishment requirements
Section 140
132
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Division 4--Information about relinquishment
1
requirements
2
140 Information about relinquishment requirements
3
Scope
4
(1) This section applies if the Regulator gives a person a
5
relinquishment notice under Part 12.
6
Relinquishment requirement
7
(2) As soon as practicable after giving the relinquishment notice, the
8
Regulator must publish on the Regulator's website:
9
(a) the name of the person; and
10
(b) details of the relinquishment requirement.
11
(3) If any of the following paragraphs applies:
12
(a) the decision to require the person to relinquish one or more
13
biodiversity certificates is being reconsidered by the
14
Regulator under section 176;
15
(b) the decision to require the person to relinquish one or more
16
biodiversity certificates has been affirmed or varied by the
17
Regulator under section 176, and the decision as so affirmed
18
or varied is the subject of an application for review by the
19
Administrative Appeals Tribunal;
20
(c) the decision to require the person to relinquish one or more
21
biodiversity certificates is the subject of an application for
22
review by the Administrative Appeals Tribunal;
23
the Regulator must:
24
(d) publish an appropriate annotation on the Regulator's website;
25
and
26
(e) if paragraph (a) applies--when the Regulator notifies the
27
applicant for reconsideration of the Regulator's decision on
28
the reconsideration, the Regulator must publish an
29
appropriate annotation on the Regulator's website; and
30
Publication of information
Part 15
Information about relinquishment requirements
Division 4
Section 141
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
133
(f) if paragraph (b) or (c) applies--when the review by the
1
Administrative Appeals Tribunal (including any court
2
proceedings arising out of the review) has been finalised, the
3
Regulator must publish an appropriate annotation on the
4
Regulator's website.
5
141 Information about relinquished certificates
6
Scope
7
(1) This section applies if:
8
(a) the Regulator gives a person a relinquishment notice; and
9
(b) one or more biodiversity certificates are relinquished under
10
section 118 in order to comply with the relinquishment
11
notice.
12
Biodiversity certificates relinquished
13
(2) As soon as practicable after receiving the notice under section 118
14
relinquishing the biodiversity certificate or certificates, the
15
Regulator must publish on the Regulator's website:
16
(a) the name of the person; and
17
(b) such information in relation to the biodiversity certificate or
18
certificates as the Regulator thinks appropriate.
19
Part 16
Record-keeping and project monitoring requirements
Division 1
Introduction
Section 142
134
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Part 16--Record-keeping and project monitoring
1
requirements
2
Division 1--Introduction
3
142 Simplified outline of this Part
4
The rules may require a person to:
5
(a)
make a record of information; and
6
(b)
retain the record.
7
A person is subject to record-keeping requirements in relation to
8
the preparation of a biodiversity project report.
9
A project proponent must comply with record-keeping and project
10
monitoring requirements imposed by a protocol determination.
11
Record-keeping and project monitoring requirements
Part 16
Record-keeping requirements
Division 2
Section 143
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
135
Division 2--Record-keeping requirements
1
143 Record-keeping requirements--general
2
(1) The rules may require a person to:
3
(a) make a record of specified information, where the
4
information is relevant to this Act; and
5
(b) retain:
6
(i) the record; or
7
(ii) a copy of the record;
8
for 7 years after the making of the record.
9
(2) If a person is subject to a requirement under rules made for the
10
purposes of subsection (1), the person must comply with that
11
requirement.
12
Civil penalty:
200 penalty units.
13
Other provisions do not limit this section
14
(3) This section is not limited by any other provision of this Act that
15
relates to the keeping or retention of records.
16
144 Record-keeping requirements--preparation of biodiversity
17
project report
18
Scope
19
(1) This section applies if a person:
20
(a) made a record of particular information; and
21
(b) used the information to prepare a biodiversity project report.
22
Record-keeping requirements
23
(2) The rules may require the person to retain:
24
(a) the record; or
25
(b) a copy of the record;
26
Part 16
Record-keeping and project monitoring requirements
Division 2
Record-keeping requirements
Section 145
136
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
for 7 years after the biodiversity project report was given to the
1
Regulator.
2
(3) If a person is subject to a requirement under rules made for the
3
purposes of subsection (2), the person must comply with that
4
requirement.
5
Civil penalty:
200 penalty units.
6
145 Record-keeping requirements--protocol determinations
7
Scope
8
(1) This section applies if:
9
(a) a person is the project proponent for a registered biodiversity
10
project; and
11
(b) under the protocol determination that covers the project, the
12
person is subject to a record-keeping requirement relating to
13
the project.
14
Record-keeping requirement
15
(2) The person must comply with the requirement.
16
Civil penalty:
200 penalty units.
17
Record-keeping and project monitoring requirements
Part 16
Project monitoring requirements
Division 3
Section 146
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
137
Division 3--Project monitoring requirements
1
146 Project monitoring requirements--protocol determinations
2
Scope
3
(1) This section applies if:
4
(a) a person is the project proponent for a registered biodiversity
5
project; and
6
(b) under the protocol determination that covers the project, the
7
person is subject to a requirement to monitor the project.
8
Project monitoring requirement
9
(2) The person must comply with the requirement.
10
Civil penalty:
200 penalty units.
11
Part 17
Enforcement
Division 1
Introduction
Section 147
138
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Part 17--Enforcement
1
Division 1--Introduction
2
147 Simplified outline of this Part
3
Certain provisions are subject to monitoring under Part 2 of the
4
Regulatory Powers Act.
5
Certain provisions are subject to investigation under Part 3 of the
6
Regulatory Powers Act.
7
Civil penalty orders may be sought under Part 4 of the Regulatory
8
Powers Act from a relevant court in relation to contraventions of
9
civil penalty provisions.
10
Infringement notices may be given under Part 5 of the Regulatory
11
Powers Act for alleged contraventions of civil penalty provisions.
12
Undertakings to comply with certain provisions may be accepted
13
and enforced under Part 6 of the Regulatory Powers Act.
14
Injunctions under Part 7 of the Regulatory Powers Act may be used
15
to restrain a person from contravening section 121 of this Act (civil
16
penalty for carrying out declared prohibited activity) or to compel
17
compliance with that section.
18
148 Appointment of inspectors
19
(1) The Chair of the Regulator may, in writing, appoint a person who
20
is one of the following as an inspector
for the purposes of this Act:
21
(a) a person who is:
22
(i) a member of the staff of the Regulator; and
23
(ii) an SES employee or acting SES employee;
24
(b) a person who is:
25
(i) a member of the staff of the Regulator; and
26
Enforcement
Part 17
Introduction
Division 1
Section 148
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
139
(ii) an APS employee who holds or performs the duties of
1
an Executive Level 1 or 2 position or an equivalent
2
position;
3
(c) a member or special member of the Australian Federal
4
Police.
5
Note:
The expressions
APS employee
,
SES employee
and
acting SES
6
employee
are defined in section 2B of the
Acts Interpretation Act
7
1901
.
8
(2) The Chair must not appoint a person as an inspector unless the
9
Chair is satisfied that the person has the knowledge or experience
10
necessary to properly exercise the powers of an
inspector.
11
(3) An inspector must, in exercising powers as such, comply with any
12
directions of the Chair.
13
(4) If a direction is given under subsection (3) in writing, the direction
14
is not a legislative instrument.
15
Part 17
Enforcement
Division 2
Monitoring powers
Section 149
140
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Division 2--Monitoring powers
1
149 Monitoring powers
2
Provisions subject to monitoring
3
(1) The following provisions are subject to monitoring under Part 2 of
4
the Regulatory Powers Act:
5
(a) an offence provision of this Act;
6
(b) a civil penalty provision of this Act;
7
(c) an offence provision of the
Crimes Act 1914
or the
Criminal
8
Code
, to the extent
that it relates to this Act.
9
Note:
Part 2 of the Regulatory Powers Act creates a framework for
10
monitoring whether this Act has been complied with. It includes
11
powers of entry and inspection.
12
Information subject to monitoring
13
(2) Information given in compliance or purported compliance with a
14
provision of this Act, the rules or a protocol determination is
15
subject to monitoring under Part 2 of the Regulatory Powers Act.
16
Note:
Part 2 of the Regulatory Powers Act creates a framework for
17
monitoring whether the information is correct. It includes powers of
18
entry and inspection.
19
Related provisions, authorised applicant, authorised person,
20
issuing officer, relevant chief executive and relevant court
21
(3) For the purposes of Part 2 of the Regulatory Powers Act, as that
22
Part applies in relation to the provisions mentioned in
23
subsection (1) and the information mentioned in subsection (2):
24
(a) there are no related provisions; and
25
(b) an inspector is an authorised applicant; and
26
(c) an inspector is an authorised person; and
27
(d) a magistrate is an issuing officer; and
28
(e) the Chair of the Regulator is the relevant chief executive; and
29
(f) each of the following is a relevant court:
30
(i) the Federal Court;
31
Enforcement
Part 17
Monitoring powers
Division 2
Section 149
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
141
(ii) a court of a State or Territory that has jurisdiction in
1
relation to matters arising under this Act or the
2
associated provisions.
3
(4) The relevant chief executive may, in writing, delegate the powers
4
and functions mentioned in subsection (5) to a person who is:
5
(a) a member of the staff of the Regulator; and
6
(b) an SES employee or acting SES employee.
7
Note:
The expressions
SES employee
and
acting SES employee
are defined
8
in section 2B of the
Acts Interpretation Act 1901
.
9
(5) The powers and functions that may be delegated are:
10
(a)
powers and functions under Part 2 of the Regulatory Powers
11
Act in relation to the provisions mentioned in subsection (1)
12
and the information mentioned in subsection (2); and
13
(b) powers and functions under the Regulatory Powers Act that
14
are incidental to a power or function mentioned in
15
paragraph (a).
16
(6) A person exercising powers or performing functions under a
17
delegation under subsection (4) must comply with any directions of
18
the relevant chief executive.
19
Person assisting
20
(7) An authorised person may be assisted by other persons in
21
exercising powers or performing functions or duties under Part 2 of
22
the Regulatory Powers Act in relation to the provisions mentioned
23
in subsection (1) and the information mentioned in subsection (2).
24
Extension to external Territories
25
(8) Part 2 of the Regulatory Powers Act, as that Part applies in relation
26
to
the provisions mentioned in subsection (1) and the information
27
mentioned in subsection (2), extends to every external Territory
.
28
Part 17
Enforcement
Division 3
Investigation powers
Section 150
142
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Division 3--Investigation powers
1
150 Investigation powers
2
Provisions subject to investigation
3
(1) A provision is subject to investigation under Part 3 of the
4
Regulatory Powers Act if it is:
5
(a) an offence provision of this Act; or
6
(b) a civil penalty provision of this Act; or
7
(c) an offence provision of the
Crimes Act 1914
or the
Criminal
8
Code
, to the extent
that it relates to this Act.
9
Note:
Part 3 of the Regulatory Powers Act creates a framework for
10
investigating whether a provision has been contravened. It includes
11
powers of entry, search and seizure.
12
Related provisions, authorised applicant, authorised person,
13
issuing officer, relevant chief executive and relevant court
14
(2) For the purposes of Part 3 of the Regulatory Powers Act, as that
15
Part applies in relation to evidential material that relates to a
16
provision mentioned in subsection (1):
17
(a) there are no related provisions; and
18
(b) an inspector is an authorised
applicant; and
19
(c) an inspector is an authorised person; and
20
(d) a magistrate is an issuing officer; and
21
(e) the Chair of the Regulator is the relevant chief executive; and
22
(f) each of the following is a relevant court:
23
(i) the Federal Court;
24
(ii) a court of a State or Territory that has jurisdiction in
25
relation to matters arising under this Act or the
26
associated provisions.
27
(3) The relevant chief executive may, in writing, delegate the powers
28
and functions mentioned in subsection (4) to a person who is:
29
(a) a member of the staff of the Regulator; and
30
(b) an SES employee or acting SES employee.
31
Enforcement
Part 17
Investigation powers
Division 3
Section 150
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
143
Note:
The expressions
SES employee
and
acting SES employee
are defined
1
in section 2B of the
Acts Interpretation Act 1901
.
2
(4) The powers and functions that may be delegated are:
3
(a) powers and functions under Part 3 of the Regulatory Powers
4
Act in relation to evidential material that relates to a
5
provision mentioned in subsection (1); and
6
(b) powers and functions under the Regulatory Powers Act that
7
are incidental to a power or function mentioned in
8
paragraph (a).
9
(5) A person exercising powers or performing functions under a
10
delegation under subsection (3) must comply with any directions of
11
the relevant chief executive.
12
Person assisting
13
(6) An authorised person may be assisted by other persons in
14
exercising powers or performing functions or duties under Part 3 of
15
the Regulatory Powers Act in relation to evidential material that
16
relates to a provision mentioned in subsection (1).
17
Extension to external Territories
18
(7) Part 3 of the Regulatory Powers Act, as that Part applies in relation
19
to a provision
mentioned in subsection (1), extends to every
20
external Territory.
21
Part 17
Enforcement
Division 4
Civil penalty provisions
Section 151
144
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Division 4--Civil penalty provisions
1
151 Civil penalty provisions
2
Enforceable
civil penalty provisions
3
(1) Each civil penalty provision of this Act is enforceable under Part 4
4
of the Regulatory Powers Act.
5
Note:
Part 4 of the Regulatory Powers Act allows a civil penalty provision to
6
be enforced by obtaining an order for a person to pay a pecuniary
7
penalty for the contravention of the provision.
8
Authorised applicant
9
(2) For the purposes of Part 4 of the Regulatory Powers Act, the Chair
10
of the Regulator is an authorised applicant in relation to the civil
11
penalty provisions of this Act.
12
(3) An authorised applicant may, in writing, delegate the authorised
13
applicant's powers and functions under Part 4 of the Regulatory
14
Powers Act in relation to the civil penalty provisions of this Act to
15
a person who is:
16
(a) a member of the staff of the Regulator; and
17
(b) an SES employee or acting SES employee.
18
Note:
The expressions
SES employee
and
acting SES employee
are defined
19
in section 2B of the
Acts Interpretation Act 1901
.
20
Relevant court
21
(4) For the purposes of Part 4 of the Regulatory Powers Act, each of
22
the following courts is a relevant court in relation to the civil
23
penalty provisions of this Act:
24
(a) the Federal Court;
25
(b) a court of a State or Territory that has jurisdiction in relation
26
to matters arising under this Act or the associated provisions.
27
Enforcement
Part 17
Civil penalty provisions
Division 4
Section 151
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
145
Extension to external Territories
1
(5) Part 4 of the Regulatory Powers Act, as that Part applies in relation
2
to the civil penalty provisions
of this Act, extends to every external
3
Territory.
4
Liability of Crown
5
(6) Part 4 of the Regulatory Powers Act, as that Part applies in relation
6
to the civil penalty provisions of this Act, does not make the
7
Crown liable to a pecuniary penalty.
8
Part 17
Enforcement
Division 5
Infringement notices
Section 152
146
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Division 5--Infringement notices
1
152 Infringement notices
2
Provisions subject to an infringement notice
3
(1) A civil penalty provision of this Act is subject to an infringement
4
notice under Part 5 of the Regulatory Powers Act.
5
Note:
Part 5 of the Regulatory Powers Act creates a framework for using
6
infringement notices in relation to provisions.
7
Infringement officer
8
(2) For the purposes of Part 5 of the Regulatory Powers Act, each of
9
the following persons is an infringement officer in relation to the
10
provisions mentioned in subsection (1):
11
(a) an inspector;
12
(b) a person who is:
13
(i) a member of the staff of the Regulator; and
14
(ii) an SES employee or acting SES employee.
15
Note:
The expressions
SES employee
and
acting SES employee
are defined
16
in section 2B of the
Acts Interpretation Act 1901
.
17
Relevant chief executive
18
(3) For the purposes of Part 5 of the Regulatory Powers Act, the Chair
19
of the Regulator is the relevant chief executive in relation to the
20
provisions mentioned in subsection (1).
21
(4) The relevant chief executive may, in writing, delegate the relevant
22
chief executive's powers and functions under Part 5 of the
23
Regulatory Powers Act in relation to the provisions mentioned in
24
subsection (1) to a person who is:
25
(a) a member of the staff of the Regulator; and
26
(b) an SES employee or acting SES employee.
27
Note:
The expressions
SES employee
and
acting SES employee
are defined
28
in section 2B of the
Acts Interpretation Act 1901
.
29
Enforcement
Part 17
Infringement notices
Division 5
Section 152
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
147
(5) A person exercising powers or performing functions under a
1
delegation under subsection (4) must comply with any directions of
2
the relevant chief executive.
3
Extension to external Territories
4
(6) Part 5 of the Regulatory Powers Act, as that Part applies in relation
5
to
the provisions mentioned in subsection (1), extends to every
6
external Territory.
7
Part 17
Enforcement
Division 6
Enforceable undertakings
Section 153
148
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Division 6--Enforceable undertakings
1
153 Enforceable undertakings
2
Enforceable provisions
3
(1) The following provisions are enforceable
under Part 6 of the
4
Regulatory Powers Act:
5
(a) an offence provision of this Act;
6
(b) a civil penalty provision of this Act;
7
(c) an offence provision of the
Crimes Act 1914
or the
Criminal
8
Code
, to the extent
that it relates to this Act.
9
Note:
Part 6 of the Regulatory Powers Act creates a framework for
10
accepting and enforcing undertakings relating to compliance with
11
provisions.
12
Authorised person
13
(2) For the purposes of Part 6 of the Regulatory Powers Act, the Chair
14
of the Regulator is an authorised person in relation to the
15
provisions mentioned in subsection (1).
16
(3) An authorised person may, in writing, delegate the authorised
17
person's powers and functions under Part 6 of the Regulatory
18
Powers Act in relation to the provisions mentioned in
19
subsection (1) to a person who is:
20
(a) a member of the staff of the Regulator; and
21
(b) an SES employee or acting SES employee.
22
Note:
The expressions
SES employee
and
acting SES employee
are defined
23
in section 2B of the
Acts Interpretation Act 1901
.
24
Relevant court
25
(4) For the purposes of Part 6 of the Regulatory Powers Act, each of
26
the following courts is a relevant court in relation to the provisions
27
mentioned in subsection (1):
28
(a) the Federal Court;
29
Enforcement
Part 17
Enforceable undertakings
Division 6
Section 153
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
149
(b) a court of a State or Territory that has jurisdiction in relation
1
to matters arising under this Act or the associated provisions.
2
Extension to external Territories
3
(5) Part 6 of the Regulatory Powers Act, as that Part applies in relation
4
to
the provisions mentioned in subsection (1), extends to every
5
external Territory.
6
Part 17
Enforcement
Division 7
Injunctions
Section 154
150
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Division 7--Injunctions
1
154 Injunctions
2
Enforceable provisions
3
(1) Section 121 (civil penalty for carrying out declared prohibited
4
activity) is enforceable
under Part 7 of the Regulatory Powers Act.
5
Note:
Part 7 of the Regulatory Powers Act creates a framework for using
6
injunctions to enforce provisions.
7
Authorised person
8
(2) For the purposes of Part 7 of the Regulatory Powers Act, the Chair
9
of the Regulator is an authorised person in relation to the provision
10
mentioned in subsection (1).
11
(3) An authorised person may, in writing, delegate the authorised
12
person's powers and functions under Part 7 of the Regulatory
13
Powers Act in relation to the provision mentioned in subsection (1)
14
to a person who is:
15
(a) a member of the staff of the Regulator; and
16
(b) an SES employee or acting SES employee.
17
Note:
The expressions
SES employee
and
acting SES employee
are defined
18
in section 2B of the
Acts Interpretation Act 1901
.
19
Relevant court
20
(4) For the purposes of Part 7 of the Regulatory Powers Act, each of
21
the following courts is a relevant court in relation to the provision
22
mentioned in subsection (1):
23
(a) the Federal Court;
24
(b) a court of a State or Territory that has jurisdiction in relation
25
to matters arising under this Act or the associated provisions.
26
Enforcement
Part 17
Injunctions
Division 7
Section 154
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
151
Extension to external Territories
1
(5) Part 7 of the Regulatory Powers Act, as that Part applies in relation
2
to
the provision mentioned in subsection (1), extends to every
3
external Territory.
4
Part 18
Agriculture Biodiversity Stewardship Market Advisory Committee
Division 1
Introduction
Section 155
152
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Part 18--Agriculture Biodiversity Stewardship
1
Market Advisory Committee
2
Division 1--Introduction
3
155 Simplified outline of this Part
4
This Part establishes the Agriculture Biodiversity Stewardship
5
Market Advisory Committee.
6
This Part also sets out the following:
7
(a)
the functions of the Committee;
8
(b)
the membership of the Committee;
9
(c)
the appointment of Committee members;
10
(d)
other terms and conditions on which Committee
11
members hold office.
12
The Regulator and the Agriculture Department may assist the
13
Agriculture Biodiversity Stewardship Market Advisory Committee
14
in the performance of its functions.
15
Agriculture Biodiversity Stewardship Market Advisory Committee
Part 18
Establishment and functions of the Agriculture Biodiversity Stewardship Market
Advisory Committee
Division 2
Section 156
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
153
Division 2--Establishment and functions of the Agriculture
1
Biodiversity Stewardship Market Advisory
2
Committee
3
156 Agriculture Biodiversity Stewardship Market Advisory
4
Committee
5
The Agriculture Biodiversity Stewardship Market Advisory
6
Committee is established by this section.
7
Note:
The Committee is not a Commonwealth entity for the purposes of the
8
Public Governance, Performance and Accountability Act 2013
.
9
157 Functions of the Agriculture Biodiversity Stewardship Market
10
Advisory Committee
11
The Agriculture Biodiversity Stewardship Market Advisory
12
Committee has the following functions:
13
(a) the functions that are conferred on it by this Act and any
14
instruments made under this Act;
15
(b) to advise the Agriculture Minister about matters that:
16
(i) relate to biodiversity projects; and
17
(ii) are referred to the Committee by the Agriculture
18
Minister;
19
(c) to advise the Agriculture Minister about the suspension of the
20
consideration by the Regulator of applications for the
21
registration of biodiversity projects (see section 17);
22
(d) to monitor the compliance of protocol determinations with
23
the biodiversity integrity standards;
24
(e) to undertake periodic reviews of protocol determinations;
25
(f) to undertake public consultation in relation to reviews of
26
protocol determinations;
27
(g) to advise the Agriculture Minister in relation to the outcomes
28
of reviews of protocol determinations and any related public
29
consultation;
30
Part 18
Agriculture Biodiversity Stewardship Market Advisory Committee
Division 2
Establishment and functions of the Agriculture Biodiversity Stewardship
Market Advisory Committee
Section 157
154
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
(h) to advise the Secretary in relation to the outcomes of reviews
1
of protocol determinations and any related public
2
consultation;
3
(i) to do anything incidental to or conducive to the performance
4
of the above functions.
5
Agriculture Biodiversity Stewardship Market Advisory Committee
Part 18
Membership of the Agriculture Biodiversity Stewardship Market Advisory Committee
Division 3
Section 158
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
155
Division 3--Membership of the Agriculture Biodiversity
1
Stewardship Market Advisory Committee
2
158 Membership of the Agriculture Biodiversity Stewardship
3
Market Advisory Committee
4
The Agriculture Biodiversity Stewardship Market Advisory
5
Committee consists of the following members:
6
(a) a Chair;
7
(b) at least 3, and not more than 5, other members.
8
159 Appointment of Agriculture Biodiversity Stewardship Market
9
Advisory Committee members
10
(1) Each Agriculture Biodiversity Stewardship Market Advisory
11
Committee member is to be appointed by the Agriculture Minister
12
by written instrument.
13
Note:
An Agriculture Biodiversity Stewardship Market Advisory Committee
14
member may be reappointed: see section 33AA of the
Acts
15
Interpretation Act 1901
.
16
(2) A person is not eligible for appointment as an Agriculture
17
Biodiversity Stewardship Market Advisory Committee member
18
unless the Agriculture Minister is satisfied that the person has
19
substantial experience or knowledge in at least one of the following
20
fields of expertise:
21
(a) agriculture;
22
(b) biological or ecological science;
23
(c) environmental markets.
24
(3) The Agriculture Minister must ensure that the Chair of the
25
Agriculture Biodiversity Stewardship Market Advisory Committee
26
is not:
27
(a) an employee of the Commonwealth; or
28
(b) an employee of an authority of the Commonwealth; or
29
(c) a person who holds a full-time office under a law of the
30
Commonwealth.
31
Part 18
Agriculture Biodiversity Stewardship Market Advisory Committee
Division 3
Membership of the Agriculture Biodiversity Stewardship Market Advisory
Committee
Section 160
156
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
(4) The Agriculture Minister must ensure that one Agriculture
1
Biodiversity Stewardship Market Advisory Committee member
2
(other than the Chair):
3
(a) is an SES employee in the Agriculture Department; or
4
(b) holds or performs the duties of an Executive Level 2
5
position, or an equivalent position, in the Agriculture
6
Department.
7
Note:
The expression
SES employee
is defined in section 2B of the
Acts
8
Interpretation Act 1901
.
9
(5) An Agriculture Biodiversity Stewardship Market Advisory
10
Committee member holds office on a part-time basis.
11
160 Period for appointment for Agriculture Biodiversity
12
Stewardship Market Advisory Committee members
13
(1) The Chair of the Agriculture Biodiversity Stewardship Market
14
Advisory Committee holds office for the period specified in the
15
instrument of appointment. The period must not exceed 5 years.
16
Note:
The Chair of the Agriculture Biodiversity Stewardship Market
17
Advisory Committee may be reappointed: see section 33AA of the
18
Acts Interpretation Act 1901
.
19
(2) An Agriculture Biodiversity Stewardship Market Advisory
20
Committee member (other than the Chair) holds office for the
21
period specified in the instrument of appointment. The period must
22
not exceed 2 years.
23
Note:
An Agriculture Biodiversity Stewardship Market Advisory Committee
24
member may be reappointed: see section 33AA of the
Acts
25
Interpretation Act 1901
.
26
161 Acting Agriculture Biodiversity Stewardship Market Advisory
27
Committee members
28
Acting Chair of the Agriculture Biodiversity Stewardship Market
29
Advisory Committee
30
(1) The Agriculture Minister may, by written instrument, appoint an
31
Agriculture Biodiversity Stewardship Market Advisory Committee
32
Agriculture Biodiversity Stewardship Market Advisory Committee
Part 18
Membership of the Agriculture Biodiversity Stewardship Market Advisory Committee
Division 3
Section 161
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
157
member to act as the Chair of the Agriculture Biodiversity
1
Stewardship Market Advisory Committee:
2
(a) during a vacancy in the office of the Chair of the Agriculture
3
Biodiversity Stewardship Market Advisory Committee
4
(whether or not an appointment has previously been made to
5
the office); or
6
(b) during any period, or during all periods, when the Chair of
7
the Agriculture Biodiversity Stewardship Market Advisory
8
Committee:
9
(i) is absent from duty or from Australia; or
10
(ii) is, for any reason, unable to perform the duties of the
11
office.
12
Note:
For rules that apply to acting appointments, see sections 33AB and
13
33A of the
Acts Interpretation Act 1901
.
14
Acting Agriculture Biodiversity Stewardship Market Advisory
15
Committee member (other than the Chair)
16
(2) The Agriculture Minister may, by written instrument, appoint a
17
person to act as an Agriculture Biodiversity Stewardship Market
18
Advisory Committee member (other than the Chair of the
19
Agriculture Biodiversity Stewardship Market Advisory
20
Committee):
21
(a) during a vacancy in the office of an Agriculture Biodiversity
22
Stewardship Market Advisory Committee member (other
23
than the Chair of the Committee), whether or not an
24
appointment has previously been made to the office; or
25
(b) during any period, or during all periods, when an Agriculture
26
Biodiversity Stewardship Market Advisory Committee
27
member (other than the Chair of the Committee):
28
(i) is absent from duty or from Australia; or
29
(ii) is, for any reason, unable to perform the duties of the
30
office.
31
Note:
For rules that apply to acting appointments, see sections 33AB and
32
33A of the
Acts Interpretation Act 1901
.
33
Part 18
Agriculture Biodiversity Stewardship Market Advisory Committee
Division 3
Membership of the Agriculture Biodiversity Stewardship Market Advisory
Committee
Section 162
158
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Eligibility
1
(3) A person is not eligible for appointment to act as:
2
(a) the Chair of the Agriculture Biodiversity Stewardship Market
3
Advisory Committee; or
4
(b) an Agriculture Biodiversity Stewardship Market Advisory
5
Committee member (other than the Chair of the Committee);
6
unless the person is eligible for appointment as an Agriculture
7
Biodiversity Stewardship Market Advisory Committee member.
8
Note 1:
For eligibility for appointment as an Agriculture Biodiversity
9
Stewardship Market Advisory Committee member, see
10
subsection 159(2).
11
Note 2:
For rules that apply to acting appointments, see sections 33AB and
12
33A of the
Acts Interpretation Act 1901
.
13
162 Procedures
14
(1) The rules may prescribe the procedures to be followed at or in
15
relation to meetings of the Agriculture Biodiversity Stewardship
16
Market Advisory Committee, including matters relating to the
17
following:
18
(a) the convening of meetings of the Committee;
19
(b) the number of Agriculture Biodiversity Stewardship Market
20
Advisory Committee members who are to constitute a
21
quorum;
22
(c) the selection of an Agriculture Biodiversity Stewardship
23
Market Advisory Committee member to preside at meetings
24
of the Committee in the absence of the Chair of the
25
Committee;
26
(d) the manner in which questions arising at a meeting of the
27
Committee are to be decided.
28
(2) A resolution is taken to have been passed at a meeting of the
29
Agriculture Biodiversity Stewardship Market Advisory Committee
30
if:
31
(a) without meeting, a majority of Agriculture Biodiversity
32
Stewardship Market Advisory Committee members indicate
33
agreement with the resolution in accordance with the method
34
determined by the Committee under subsection (3); and
35
Agriculture Biodiversity Stewardship Market Advisory Committee
Part 18
Membership of the Agriculture Biodiversity Stewardship Market Advisory Committee
Division 3
Section 163
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
159
(b) all Agriculture Biodiversity Stewardship Market Advisory
1
Committee members were informed of the proposed
2
resolution, or reasonable efforts had been made to inform all
3
Agriculture Biodiversity Stewardship Market Advisory
4
Committee members of the proposed resolution.
5
(3) Subsection (2) applies only if the Agriculture Biodiversity
6
Stewardship Market Advisory Committee:
7
(a) determines that it applies; and
8
(b) determines the method by which Agriculture Biodiversity
9
Stewardship Market Advisory Committee members are to
10
indicate agreement with resolutions.
11
(4) If an Agriculture Biodiversity Stewardship Market Advisory
12
Committee member is an APS employee in the Agriculture
13
Department, the member:
14
(a) is not entitled to vote for a resolution at a meeting of the
15
Committee; and
16
(b) is not entitled to indicate agreement with a resolution as
17
mentioned in paragraph (2)(a); and
18
(c) is not to be counted for the purposes of determining whether
19
a majority of Agriculture Biodiversity Stewardship Market
20
Advisory Committee members:
21
(i) have voted for a resolution at a meeting of the
22
Committee; or
23
(ii) have indicated agreement with a resolution as
24
mentioned in paragraph (2)(a).
25
Note:
The expression
APS employee
is defined in section 2B of the
Acts
26
Interpretation Act 1901
.
27
163 Disclosure of interests to the Agriculture Minister
28
An Agriculture Biodiversity Stewardship Market Advisory
29
Committee member must give written notice to the Agriculture
30
Minister of all interests, pecuniary or otherwise, that the member
31
has or acquires and that conflict or could conflict with the proper
32
performance of the member's duties.
33
Part 18
Agriculture Biodiversity Stewardship Market Advisory Committee
Division 3
Membership of the Agriculture Biodiversity Stewardship Market Advisory
Committee
Section 164
160
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
164 Disclosure of interests to the Agriculture Biodiversity
1
Stewardship Market Advisory Committee
2
(1) An Agriculture Biodiversity Stewardship Market Advisory
3
Committee member
who has an interest, pecuniary or otherwise, in
4
a matter being considered or about to be considered by the
5
Committee must disclose the nature of the interest to a meeting of
6
the Committee.
7
(2) The disclosure must be made as soon as possible after the relevant
8
facts have come to the Agriculture Biodiversity Stewardship
9
Market Advisory Committee member's
knowledge.
10
(3) The disclosure must be recorded in the minutes of the meeting.
11
(4) Unless the Agriculture Biodiversity Stewardship Market Advisory
12
Committee otherwise determines, the Agriculture Biodiversity
13
Stewardship Market Advisory Committee member:
14
(a) must not be present during any deliberation by the
15
Committee on the matter; and
16
(b) must not take part in any decision of the Committee
with
17
respect to the matter.
18
(5) For the purposes of making a determination under subsection (4),
19
the Agriculture Biodiversity Stewardship Market Advisory
20
Committee member:
21
(a) must not be present during any deliberation of the Committee
22
for the purpose of making the determination; and
23
(b) must not take part in making the determination.
24
(6) A determination under subsection (4) must be recorded in the
25
minutes of the meeting of the Agriculture Biodiversity Stewardship
26
Market Advisory Committee.
27
165 Other paid work
28
An Agriculture Biodiversity Stewardship Market Advisory
29
Committee member must not engage in any paid work that
30
conflicts or could conflict with the proper performance of the
31
Agriculture Biodiversity Stewardship Market Advisory Committee
Part 18
Membership of the Agriculture Biodiversity Stewardship Market Advisory Committee
Division 3
Section 166
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
161
Agriculture Biodiversity Stewardship Market Advisory Committee
1
member's duties.
2
166 Remuneration
3
(1) An Agriculture Biodiversity Stewardship Market Advisory
4
Committee member is to be paid the remuneration that is
5
determined by the Remuneration Tribunal. If no determination of
6
that remuneration by the Tribunal is in operation, the Agriculture
7
Biodiversity Stewardship Market Advisory Committee member is
8
to be paid the remuneration that is prescribed by the rules.
9
(2) An Agriculture Biodiversity Stewardship Market Advisory
10
Committee member is to be paid the allowances that are prescribed
11
by the rules.
12
(3) This section has effect subject to the
Remuneration Tribunal Act
13
1973
.
14
167 Leave of absence
15
(1) The Agriculture Minister may grant leave of absence to the Chair
16
of the Agriculture Biodiversity Stewardship Market Advisory
17
Committee on the terms and conditions that the Agriculture
18
Minister determines.
19
(2) The Chair of the Agriculture Biodiversity Stewardship Market
20
Advisory Committee may grant leave of absence to any
21
Agriculture Biodiversity Stewardship Market Advisory Committee
22
member on the terms and conditions that the Chair determines.
23
168 Resignation
24
(1) An Agriculture Biodiversity Stewardship Market Advisory
25
Committee member may resign the member's appointment by
26
giving the Agriculture Minister a written resignation.
27
(2) The resignation takes effect on the day it is received by the
28
Agriculture Minister or, if a later day is specified in the
29
resignation, on that later day.
30
Part 18
Agriculture Biodiversity Stewardship Market Advisory Committee
Division 3
Membership of the Agriculture Biodiversity Stewardship Market Advisory
Committee
Section 169
162
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
169 Termination of appointment
1
(1) The Agriculture Minister may terminate the appointment of an
2
Agriculture Biodiversity Stewardship Market Advisory Committee
3
member:
4
(a) for misbehaviour; or
5
(b) if the member is unable to perform the duties of the
6
member's office because of physical or mental incapacity.
7
(2) The Agriculture Minister may terminate the appointment of an
8
Agriculture Biodiversity Stewardship Market Advisory Committee
9
member if:
10
(a) the member:
11
(i) becomes bankrupt; or
12
(ii) applies to take the benefit of any law for the relief of
13
bankrupt or insolvent debtors; or
14
(iii) compounds with the member's creditors; or
15
(iv) makes an assignment of the member's remuneration for
16
the benefit of the member's creditors; or
17
(b) the member is absent, except on leave of absence, from 3
18
consecutive meetings of the Committee; or
19
(c) the member engages in paid work that conflicts or could
20
conflict with the proper performance of the member's duties
21
(see section 165); or
22
(d) the member fails, without reasonable excuse, to comply with
23
section 163 or 164 (which deal with the duty to disclose
24
interests).
25
(3) The Agriculture Minister may terminate the appointment of the
26
Chair of the Agriculture Biodiversity Stewardship Market
27
Advisory Committee if the Chair is any of the following:
28
(a) an employee of the Commonwealth;
29
(b) an employee of an authority of the Commonwealth;
30
(c) a person who holds a full-time office under a law of the
31
Commonwealth.
32
Agriculture Biodiversity Stewardship Market Advisory Committee
Part 18
Membership of the Agriculture Biodiversity Stewardship Market Advisory Committee
Division 3
Section 170
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
163
170 Other terms and conditions
1
An Agriculture Biodiversity Stewardship Market Advisory
2
Committee member holds office on the terms and conditions (if
3
any) in relation to matters not covered by this Act or the rules that
4
are determined by the Agriculture Minister.
5
171 Assistance to Agriculture Biodiversity Stewardship Market
6
Advisory Committee
7
(1) Any or all of the following bodies:
8
(a) the Regulator;
9
(b) the Agriculture Department;
10
(c) any other Department, agency or authority of the
11
Commonwealth;
12
may assist the Agriculture Biodiversity Stewardship Market
13
Advisory Committee in the performance of its functions.
14
(2) The assistance may include the following:
15
(a) the provision of information;
16
(b) the provision of advice;
17
(c) the making available of resources and facilities (including
18
secretariat services and clerical assistance).
19
(3) If an officer or employee of a body mentioned in subsection (1)
20
assists the Agriculture Biodiversity Stewardship Market Advisory
21
Committee, the officer or employee is taken, for the purposes of
22
this Act, to be a person assisting the Agriculture Biodiversity
23
Stewardship Market Advisory Committee under this section.
24
Part 19
Review of decisions
Division 1
Introduction
Section 172
164
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
Part 19--Review of decisions
1
Division 1--Introduction
2
172 Simplified outline of this Part
3
Certain decisions of delegates of the Regulator may be reviewed by
4
the Administrative Appeals Tribunal following a process of
5
internal reconsideration by the Regulator.
6
Certain decisions of the Regulator may be reviewed by the
7
Administrative Appeals Tribunal.
8
Review of decisions
Part 19
Decisions of the Regulator
Division 2
Section 173
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
165
Division 2--Decisions of the Regulator
1
173 Reviewable decisions
2
For the purposes of this Act, each of the following decisions is a
3
reviewable decision
:
4
(a) a decision under section 16 to approve, or refuse to approve,
5
the registration of a biodiversity project;
6
(b) a decision under rules made for the purposes of section 20,
7
21 or 22 to vary, or refuse to vary, the registration of a
8
registered biodiversity project;
9
(c) a decision under rules made for the purposes of section 24 or
10
25 to cancel, or refuse to cancel, the registration of a
11
registered biodiversity project;
12
(d) a decision under rules made for the purposes of section 27,
13
28, 29, 30, 31, 32 or 42 to cancel the registration of a
14
registered biodiversity project;
15
(e) a decision under section 62 to issue, or refuse to issue, a
16
biodiversity certificate;
17
(f) a decision under subsection 107(7) to reimburse, or refuse to
18
reimburse, a person for reasonable costs incurred by the
19
person in complying with a notice under subsection 107(2);
20
(g) a decision under section 110, 111, 112 or 113 to give a
21
relinquishment notice;
22
(h) a decision under subsection 116(2) to refuse to extend the
23
period mentioned in subsection 116(1);
24
(i) a decision under a provision of the rules, or under a provision
25
of another legislative instrument made under this Act, if the
26
provision is prescribed by the rules for the purposes of this
27
paragraph.
28
Part 19
Review of decisions
Division 2
Decisions of the Regulator
Section 174
166
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
174 Notice of decision and reconsideration rights to be given--
1
decisions made by delegates of the Regulator
2
Scope
3
(1) This section applies to a reviewable decision if the decision is
4
made by a delegate of the Regulator.
5
Notice of decision and reconsideration rights
6
(2) The delegate must take such steps as are reasonable in the
7
circumstances to give notice, in writing or otherwise, to each
8
person whose interests are affected by the decision, of:
9
(a) the making of the decision; and
10
(b) the person's right to have the decision reconsidered under
11
this Part.
12
Note:
For notification of reviewable decisions made by the Regulator (rather
13
than a delegate), see section 27A of the
Administrative Appeals
14
Tribunal Act 1975
.
15
(3) A failure to comply with this section does not affect the validity of
16
the decision.
17
175 Applications for reconsideration of decisions made by delegates
18
of the Regulator
19
Scope
20
(1) This section applies to a reviewable decision if the decision is
21
made by a delegate of the Regulator.
22
Note:
For review of decisions not made by a delegate of the Regulator, see
23
subsection 178(2).
24
Application
25
(2) A person affected by a reviewable decision who is dissatisfied with
26
the decision may apply to the Regulator for the Regulator to
27
reconsider the decision.
28
(3) The application must:
29
Review of decisions
Part 19
Decisions of the Regulator
Division 2
Section 176
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
167
(a) be in a form approved in writing by the Regulator; and
1
(b) set out the reasons for the application; and
2
(c) be accompanied by the fee (if any) specified in the rules.
3
(4) The application must be made within:
4
(a) 28 days after the applicant is informed of the decision; or
5
(b) if, either before or after the end of that period of 28 days, the
6
Regulator extends the period within which the application
7
may be made--the extended period.
8
(5) An approved form of an application may provide for verification
9
by statutory declaration of statements in applications.
10
(6) A fee specified under paragraph (3)(c) must not be such as to
11
amount to taxation.
12
176 Reconsideration by the Regulator
13
(1) Upon receiving such an application, the Regulator must:
14
(a) reconsider the decision; and
15
(b) affirm, vary or revoke the decision.
16
(2) The Regulator's decision on reconsideration of a decision has
17
effect as if it had been made under the provision under which the
18
original decision was made.
19
(3) The Regulator must give to the applicant a written notice stating
20
the Regulator's decision on the reconsideration.
21
(4) Within 28 days after making the decision on the reconsideration,
22
the Regulator must give the applicant a written statement of the
23
Regulator's reasons for the decision.
24
177 Deadline for reconsideration
25
(1) The Regulator must make its decision on reconsideration of a
26
decision within 90 days after receiving an application for
27
reconsideration.
28
(2) The Regulator is taken, for the purposes of this Part, to have made
29
a decision affirming the original decision if the Regulator has not
30
Part 19
Review of decisions
Division 2
Decisions of the Regulator
Section 178
168
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
informed the applicant of its decision on the reconsideration before
1
the end of the period of 90 days.
2
178 Review by the Administrative Appeals Tribunal
3
(1) Applications may be made to the Administrative Appeals Tribunal
4
to review a reviewable decision if the Regulator has affirmed or
5
varied the decision under section 176.
6
(2) Applications may be made to the Administrative Appeals Tribunal
7
to review a reviewable decision if the decision was not made by a
8
delegate of the Regulator.
9
Note:
Section 27A of the
Administrative Appeals Tribunal Act 1975
requires
10
notification of a decision that is reviewable.
11
Miscellaneous
Part 20
Section 179
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
169
Part 20--Miscellaneous
1
2
179 Miscellaneous functions of the Regulator
3
The Regulator has the following functions:
4
(a) to monitor compliance with this Act and the associated
5
provisions;
6
(b) to promote compliance with this Act and the associated
7
provisions;
8
(c) to conduct or coordinate education programs about this Act
9
and the associated provisions;
10
(d) to advise the Agriculture Minister on matters relating to this
11
Act and the associated provisions;
12
(e) to advise the Agriculture Biodiversity Stewardship Market
13
Advisory Committee on matters relating to the making,
14
variation or revocation of protocol determinations;
15
(f) to advise and assist persons in relation to their obligations
16
under this Act and the associated provisions;
17
(g) to advise and assist prospective applicants in connection with
18
ensuring that applications are in accordance with this Act and
19
the associated provisions;
20
(h) to advise and assist the representatives of persons in relation
21
to compliance by persons with this Act and the associated
22
provisions;
23
(i) to liaise with regulatory and other relevant bodies, whether in
24
Australia or elsewhere, about cooperative arrangements for
25
matters relating to this Act and the associated provisions;
26
(j) to advise and assist in relation to the development of the
27
market for:
28
(i) biodiversity certificates; or
29
(ii) other certificates, units or credits (however described,
30
and whether issued under a law of the Commonwealth,
31
a State or a Territory, or in some other way) that relate
32
to biodiversity projects;
33
Part 20
Miscellaneous
Section 180
170
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
(k) to collect, analyse, interpret and disseminate statistical
1
information relating to the operation of this Act and the
2
associated provisions.
3
Note:
See paragraph 12(b) (functions conferred by other laws of the
4
Commonwealth) of the
Clean Energy Regulator Act 2011
.
5
180 Treatment of trusts
6
(1) This Act applies to a trust as if it were a person, but with the
7
changes set out in this section.
8
Trusts with a single trustee
9
(2) If the trust has a single trustee:
10
(a) an obligation that would otherwise be imposed on the trust by
11
or under this Act is imposed on the trustee instead; and
12
(b) an offence against this Act that would otherwise have been
13
committed by the trust is taken to have been committed by
14
the trustee.
15
Trusts with multiple trustees
16
(3) If the trust has 2 or more trustees:
17
(a) an obligation that would otherwise be imposed on the trust by
18
or under this Act is imposed on each trustee instead, but may
19
be discharged by any of the trustees; and
20
(b) an offence against this Act that would otherwise have been
21
committed by the trust is taken to have been committed by
22
each trustee of the trust, at the time the offence was
23
committed, who:
24
(i) did the relevant act or made the relevant omission; or
25
(ii) aided, abetted, counselled or procured the relevant act or
26
omission; or
27
(iii) was in any way knowingly concerned in, or party to, the
28
relevant act or omission (whether directly or indirectly
29
and whether by any act or omission of the trustee).
30
Miscellaneous
Part 20
Section 181
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
171
Contraventions of civil penalty provisions
1
(4) This section applies to a contravention of a civil penalty provision
2
in a corresponding way to the way in which it applies to an
3
offence.
4
181 Rules may provide for voluntary accreditation of advisers etc.
5
(1) The rules may make provision for and in relation to the voluntary
6
accreditation of persons who give advice, or otherwise provide
7
assistance, in relation to any of the following:
8
(a) the operation of this Act;
9
(b) the carrying out of biodiversity projects;
10
(c) the trading of biodiversity certificates.
11
(2) Without limiting subsection (1), rules made for the purposes of that
12
subsection may do any of the following:
13
(a) make it a condition of accreditation that a person pass a test
14
relating to the person's knowledge of the scheme for
15
biodiversity stewardship established by this Act;
16
(b) make it a condition of accreditation that a person be a fit and
17
proper person to hold the accreditation;
18
(c) set fees for applications under the rules.
19
(3) A fee set under paragraph (2)(c) must not be such as to amount to
20
taxation.
21
(4) Rules made for the purposes of subsection (1) must not require a
22
person to be accredited in order to engage in an activity referred to
23
in a paragraph of subsection (1).
24
182 Information previously given to the Regulator
25
If:
26
(a) on a particular occasion, a person gave information to the
27
Regulator under:
28
(i) this Act or the rules; or
29
Part 20
Miscellaneous
Section 183
172
Agriculture Biodiversity Stewardship Market Bill 2022
No. , 2022
(ii) the
Carbon Credits (Carbon Farming Initiative) Act
1
2011
, or a legislative instrument made under that Act;
2
and
3
(b) the person is subsequently required or permitted, under this
4
Act or the rules, to give the same information to the
5
Regulator;
6
the person is taken to have given the information to the Regulator
7
on that later occasion.
8
183 Delegation by the Agriculture Minister
9
(1) The Agriculture Minister may, in writing, delegate all or any of the
10
Agriculture Minister's functions or powers under this Act or the
11
rules to:
12
(a) the Secretary; or
13
(b) an SES employee, or acting SES employee, in the
14
Agriculture Department.
15
Note 1:
The expressions
SES employee
and
acting SES employee
are defined
16
in section 2B of the
Acts Interpretation Act 1901
.
17
Note 2:
Sections 34AA to 34A of the
Acts Interpretation Act 1901
contain
18
provisions relating to delegations.
19
(2) In performing a delegated function or exercising a delegated
20
power, the delegate must comply with any written directions of the
21
Agriculture Minister.
22
(3) Subsection (1) does not apply to a power to make, vary or revoke a
23
legislative instrument.
24
184 Delegation by the Secretary
25
(1) The Secretary may, in writing, delegate all or any of the
26
Secretary's functions or powers under this Act or the rules to an
27
SES employee, or acting SES employee, in the Agriculture
28
Department.
29
Note 1:
The expressions
SES employee
and
acting SES employee
are defined
30
in section 2B of the
Acts Interpretation Act 1901
.
31
Note 2:
Sections 34AA to 34A of the
Acts Interpretation Act 1901
contain
32
provisions relating to delegations.
33
Miscellaneous
Part 20
Section 185
No. , 2022
Agriculture Biodiversity Stewardship Market Bill 2022
173
(2) In performing a delegated function or exercising a delegated
1
power, the delegate must comply with any written directions of the
2
Secretary.
3
185 Concurrent operation of State and Territory laws
4
This Act is not intended to exclude or limit the operation of a law
5
of a State or Territory that is capable of operating concurrently
6
with this Act.
7
186 Law relating to legal professional privilege not affected
8
This Act does not affect the law relating to legal professional
9
privilege.
10
187 Arrangements with States and Territories
11
The Agriculture Minister may enter into an arrangement with a
12
relevant Minister of a State or Territory in relation to the
13
administration of this Act, including:
14
(a) arrangements for the performance of the functions of a
15
magistrate under this Act by a magistrate of that State or
16
Territory; and
17
(b) arrangements for the exercise of the powers conferred by
18
section 84 on relevant land registration officials of that State
19
or Territory; and
20
(c) arrangements for the exercise of the powers conferred by
21
section 85 on relevant land registration officials of that State
22
or Territory.
23
188 Liability for damages
24
None of the following:
25
(a) the Agriculture Minister;
26
(b) a delegate of the Agriculture Minister;
27
(c) the Secretary;
28
(d) a delegate of the Secretary;
29
(e) the Regulator;
30
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(f) a delegate of the Regulator;
1
(g) an inspector;
2
(h) a person assisting an inspector;
3
(i) an audit team leader;
4
(j) a person assisting an audit team leader;
5
(k) an Agriculture Biodiversity Stewardship Market Advisory
6
Committee member;
7
(l) a person assisting the Agriculture Biodiversity Stewardship
8
Market Advisory Committee;
9
is liable to an action or other proceeding for damages for, or in
10
relation to, an act or matter in good faith done or omitted to be
11
done:
12
(m) in the performance or purported performance of any function;
13
or
14
(n) in the exercise or purported exercise of any power;
15
conferred by this Act or the associated provisions.
16
189 Executive power of the Commonwealth
17
This Act does not, by implication, limit the executive power of the
18
Commonwealth.
19
190 Notional payments by the Commonwealth
20
(1) The purpose of this section is to ensure that amounts payable under
21
this Act or the rules are notionally payable by the Commonwealth
22
(or parts of the Commonwealth).
23
(2) The Minister responsible for administering the
Public Governance,
24
Performance and Accountability Act 2013
may give written
25
directions for the purposes of this section, including directions
26
relating to the transfer of amounts within, or between, accounts
27
operated by the Commonwealth.
28
191 Compensation for acquisition of property
29
(1) If the operation of this Act, the rules or a protocol determination
30
would result in an acquisition of property (within the meaning of
31
Miscellaneous
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Section 192
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Agriculture Biodiversity Stewardship Market Bill 2022
175
paragraph 51(xxxi) of the Constitution) from a person otherwise
1
than on just terms (within the meaning of that paragraph), the
2
Commonwealth is liable to pay a reasonable amount of
3
compensation to the person.
4
(2) If the Commonwealth and the person do not agree on the amount
5
of the compensation, the person may institute proceedings in:
6
(a) the Federal Court; or
7
(b) the Supreme Court of a State or Territory;
8
for the recovery from the Commonwealth of such reasonable
9
amount of compensation as the court determines.
10
192 Native title rights not affected
11
This Act does not affect the operation of the
Native Title Act 1993
.
12
193 Racial Discrimination Act not affected
13
This Act does not affect the operation of the
Racial Discrimination
14
Act 1975
.
15
194 Approval of registration of biodiversity project--eligible land
16
If this Act in any of its operations would be invalid under
17
section 99 of the Constitution by reason of paragraph 16(4)(b) of
18
this Act, it is the intention of the Parliament that paragraph
19
16(4)(b) of this Act does not operate in any circumstances.
20
195 Administrative decisions under the rules
21
The rules may make provision in relation to a matter by conferring
22
a power to make a decision of an administrative character on the
23
Regulator.
24
196 Review of operation of this Act etc.
25
(1) The Agriculture Minister must cause a review of the operation of
26
the following to be commenced within 5 years of the day
27
determined by the Agriculture Minister under subsection 12(2):
28
(a) this Act;
29
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Miscellaneous
Section 196
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(b) the rules.
1
Note:
The day determined by the Agriculture Minister under subsection
2
12(2) is the first day on which applications may be made for the
3
Regulator to approve the registration of a biodiversity project.
4
(2) The review must include a review of:
5
(a) the extent to which this Act has achieved the objects of this
6
Act; and
7
(b) any other matters that the Agriculture Minister directs, in
8
writing, the review to consider.
9
(3) The review must make provision for public consultation.
10
(4) The persons undertaking the review must give the Agriculture
11
Minister a written report of the review within 12 months of the
12
review being commenced.
13
(5) The report of the review:
14
(a) must set out any directions given by the Agriculture Minister
15
under paragraph (2)(b); and
16
(b) may set out recommendations to the Commonwealth
17
Government.
18
(6) The Agriculture Minister must cause a copy of the report of the
19
review to be:
20
(a) tabled in each House of the Parliament within 15 sitting days
21
of that House after the report is given to the Agriculture
22
Minister; and
23
(b) published on the Agriculture Department's website as soon
24
as practicable after the report is given to the Agriculture
25
Minister.
26
(7) If the report of the review sets out one or more recommendations to
27
the Commonwealth Government:
28
(a) as soon as practicable after receiving the report, the
29
Agriculture Minister must cause to be prepared a statement
30
setting out the Commonwealth Government's response to
31
each of the recommendations; and
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177
(b) within 6 months after receiving the report, the Agriculture
1
Minister must cause copies of the statement to be tabled in
2
each House of the Parliament.
3
(8) A direction given under paragraph (2)(b) is not a legislative
4
instrument.
5
197 Rules
6
(1) The Agriculture Minister may, by legislative instrument, make
7
rules prescribing matters:
8
(a) required or permitted by this Act to be prescribed by the
9
rules; or
10
(b) necessary or convenient to be prescribed for carrying out or
11
giving effect to this Act.
12
(2) To avoid doubt, the rules may not do the following:
13
(a) create an offence or civil penalty;
14
(b) provide powers of:
15
(i) arrest or detention; or
16
(ii) entry, search or seizure;
17
(c) impose a tax;
18
(d) set an amount to be appropriated from the Consolidated
19
Revenue Fund under an appropriation in this Act;
20
(e) directly amend the text of this Act.
21
(3) Despite subsection 14(2) of the
Legislation Act 2003
, the rules may
22
make provision in relation to a matter by applying, adopting or
23
incorporating, with or without modification, any matter contained
24
in any other instrument or other writing as in force or existing from
25
time to time.
26